HV The Constitution and Penal Code The Preston School OF INDUSTRY Waterman, California Nineteen Thirteen GIFT OF Digitized by the Internet Archive in 2007 with funding from Microsoft Corporation http://www.archive.org/details/constitutionpenaOOpresrich The Constitution AND The Penal Code OF THE Preston School of Industry Waterman, California Nineteen Thirteen 14 (m a 3 if The CONSTITUTION We the cadets of the 'Preston School of Industry, in order to - - DI ... form a more perfect government, establish justice, promote the general welfare and se- cure the blessing of more privileges and liberty for ourselves, do ordain and establish this Constitution of the Preston School of Industry. ARTICLE I SECTION I I . All Legislative powers herein granted shall be vested in a House of Congress of the Preston School of Industry, which shall be made up of a House of Representatives and a Senate. SECTION II 1 . The Senate shall be composed of two members from each Company, and the State of California shall have equal rep resentation, but no vote. 2. The House of Congress shall be composed of members chosen every six months, by the cadets of the several companies, under civil or military government. 3. The number of the House of Representatives shall be one to every twenty members or fraction thereof, of each com- pany under civil or military government, but each, either civil or military, shall have at least one representative present at all meetings. 4. No cadet shall be a member of Congress who shall not have been a citizen of the Preston School of Industry for six (6) months. 5. The Senate shall be presided over by the Vice-President. He shall have no vote except in case of tie. 381786 6 THE CONSTITUTION 6. When vacancies occur in the membership of the Con- gress, from any company, by reason of resignation or any other reason, the executive authority thereof shall temporarily appoint someone to fill such vacancy. 7. The House of Representatives shall choose their speaker and other officers, and shall have sole power of impeachment. The Senate shall have sole power to try impeachments. 8. When the President of the Preston School of Industry is tried, the Chief Justice shall preside, and no person shall be convicted without the concurrence of two-thirds (2-3) of the members elected. When sitting for that purpose, they shall be under oath or affirmation. 9. Judgments in cases of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit, under the Preston School of Industry, but the party convicted, shall, nevertheless, be liable to indictment, trial, judgment and punishment, according to law. SECTION III I . The House of Congress may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds of the members expel a member. SECTION IV 1 . No Congressman shall, during the time for which he was elected, be appointed to any civil or commissioned military office, under the authority of the Preston School of Industry, which shall have been created during such time, and no person holding any office in the Preston School of Industry shall be a Congressman during his continuance in office. SECTION V I. Every bill which shall have passed the House of Con- gress, shall, before it becomes a law, be presented to the President of the Preston School of Industry, and if he approve, he shall sign it, but if not he shall return it with his objections, to the House in which it originated, who shall enter the objections at large upon their Journal, and proceed to reconsider it. If, after reconsideration, two-thirds of both houses shall agree to pass it, it shall become a law. THE CONSTITUTION 7 2. If any bill shall not be returned by the President within ten (10) days, (Sundays excepted) after it has been presented to him, the same shall become a law in like manner as if he had signed it, unless the Congress by its adjournment, prevent its return, in which case it shall not become a law. SECTION VI I. The Congress shall have the power to make a uniform rule of naturalization; to coin Preston School of Industry cur- rency, and to regulate the value thereof; to provide for the punish- ment of counterfeiting the current coin of the Preston School of Industry; to define and punish felonies and offenders against the laws of the Preston School of Industry; to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested in the Government of the Preston School of Industry, or in any department or office thereof, by this Constitution. ARTICLE II SECTION I 1. The executive powers shall be vested in the President of the Preston School of Industry. He shall hold his office during the term of six months, and together with the Vice- President, chosen for the same term, must have the following qualifications: 2. No person who has not been for eight months a resident of the Preston School of Industry, or who is under the age of eighteen years shall be elected to the office of President or Vice-President. Candidates for this office must secure the ap- proval of the Superintendent of the School, who shall vouch for their good record and educational qualifications. 3. In case of the removal of the President from office, or of his death, resignation or inability to discharge the powers and duties of said office, the same shall be devolved on the Vice-Presi- dent, and the House of Congress, may, by law, provide for the case of removal death, resignation or inability, both of the President and Vice-President, declaring what officer shall act as President, and such officer shall act accordingly until the disability be removed or the President be elected. 8 THE CONSTITUTION 4. Before he enter upon the execution of his office, he shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the Preston School of Industry, and will, to the best of my ability, preserve, protect and defend the Constitutions of the United -States, the State of California and the Preston School. 5. He may require the opinion in writing of any principal officer in each of the executive departments upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses committed against the Cadet Government of the Preston School of Indus- try, except in cases of impeachments. 6. He shall have sole power, with the advice of the Senate, to appoint all officers of the Preston School of Industry, whose appointments are not herein otherwise provided for, and which shall be established by law. 7. He shall from time to time, give the House of Congress information of the state of the Cadet Government of the Preston School of Industry, and recommend to its consideration such measures as he shall deem necessary and expedient. On extra- ordinary occasions he may convene the House of Congress. 8. The Chief Justice shall be elected by popular vote, and he shall have the power to appoint, with the consent of Con- gress, his associates. 9. The President and Vice-President and all civil officers of the several Companies, under civil or military government, of the Preston School of Industry, shall be removed from office on impeachment and conviction of bribery or other high crimes and misdemeanors. ARTICLE III SECTION I I . The judicial power of the Preston School of Industry shall be vested in one Supreme Court of three judges. The judges of the Supreme Court shall hold their offices during good behavior. The judicial power shall extend to all cases in law and equity arising under this Constitution and laws of the Pres- ton School of Industry. THE CONSTITUTION 9 2. In all cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and facts, with such exceptions and regulations as the President shall make. The trial of all crimes, except in cases of impeachment, shall be by jury. ARTICLE IV SECTION I I. New companies may be admitted into this Union at the discretion of the House of Congress. SECTION II I. The House of Congress, when two-thirds of its members shall deem it necessary, shall propose amendments to this Con- stitution. 3. This Constitution and the laws of the Preston School of Industry, which shall be made in pursuance thereof, or which shall be made under the state authority of the Preston School of Industry, shall be the supreme laws of the Institution, and the iudges in every company shall be bound thereby, anything in the Constitution and laws of any company to the contrary not- withstanding. 4. The House of Congress before mentioned, and all exe- cutive and judicial officers, both of the Preston School of Industry, and of the several companies, shall be bound by oath or affirma- tion to support the Constitutions of the United States, the State of California and the Preston School of Industry. 5. The right of the citizens to be secure in their persons, papers and effects against unreasonable searches, shall not be violated and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the things to be seized. 6. No person shall be subject for the same offense to be twice placed in jeopardy, nor shall he be compelled in any crim- inal case to be a witness against himself. 7. In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the company in whose court he is being tried, and to be informed 10 THE CONSTITUTION of the nature and cause of the accusation, to be confronted with witnesses against him ; to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense. 8. The right of the citizens of the Preston School of Indus- try to vote, shall not be denied or abridged by the Preston School of Industry, or by any company on account of race or color. 9. The officers provided for in this Constitution (the Presi- dent's Cabinet) shall be elected by popular vote and shall be as follows: President, Vice-President, Chief Justice, Attorney-Gen- eral, Secretary of State and Treasury and Secretary of Military Affairs. Some Constitutional Provisions ARTICLE I No person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief. ARTICLE II The right of trial by jury shall be secured to all, and remain inviolate. A trial by jury may be waived in all criminal cases not amounting to felony, by consent of both parties, expressed in open court. ARTICLE III Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information, after examination and com- mitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. ARTICLE IV Indictments found, or information laid shall be tried where the party alleged to be libeled resided at the time, unless the place of trial shall be changed for good cause. ARTICLE V In criminal prosecution in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense; nor be compelled in any criminal case to be a witness against himself; nor be deprived of liberty or property, with- out due process of law. The Legislature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses, in criminal cases, other than cases of homicide, where there is reason to believe that the witness, from inability or other cause, will not attend at the trial. ARTICLE VI No bill of attainder, ex post facto law, or law impairing the obligations of contracts, shall ever be passed. 12 CONSTITUTIONAL PROVISIONS ARTICLE VII No person shall be convicted of treason, unless on the evi- dence of two witnesses to the same overt act, or confession in open court. ARTICLE VIII The House of Representatives shall have the sole power of impeachment, and all impeachments shall be tried by it. When sitting for that purpose, the Representatives shall be on oath or affirmation and no person shall be convicted without the con- currence of two-thirds of the members elected. ARTICLE IX No person convicted of the embezzlement or defalcation of the public funds of the United States, or of any State, or of any county or municipality therein, shall ever be eligible to any office of honor, trust, or profit under this State, and the Legislature shall provide, by law, for the punishment of embezzlement or de- falcation as a felony. ARTICLE X The Superior Courts shall have original jurisdiction in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for. They shall have appellate jurisdic- tion in such cases arising in justices' and other inferior courts, in their respective counties, as may be prescribed by law. Said courts and their judges shall have power to issue writs of habeas corpus, on petition by, or on behalf of any person in actual cus- tody, in their respective counties. ARTICLE XI Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law. ARTICLE XII Every person shall be disqualified from holding any office of profit in this State who shall have been convicted of having given or offered a bribe to procure his election or appointment. AN ACT TO ESTABLISH A PENAL CODE <£HE CADETS OF The Preston School of Industry, In Townmeeting Assembled, do Enact as Follows: TITLE OF THE ACT /. This Act Shall Be Known as the PENAL CODE of the PRESTON SCHOOL OF INDUSTRY, California, and T)ivided into two Parts as Follows : I. OF CRIMES AND PUNISHMENTS 2. OF CRIMINAL PROCEEDURE Preliminary Provisions 1. This Code takes effect at twelve o'clock, noon, on the eighteenth day of October, 1913. 2. No part of it is retroactive, unless expressly so declared. 3. The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its object and to promote justice. 4. This Code does not effect any power conferred by law upon any court-martial, or other military authority or officer, to impose or inflict punishment upon offenders ; nor any power conferred by law upon any public body, tribunal, or officer, to impose or inflict punishment for a contempt. 5. The various sections of this Code which declare that evidence obtained upon the examination of a person as a wit- ness cannot be received against him in any criminal proceedings, do not forbid such evidence being proved against such person upon any proceedings founded upon a charge of perjury com- mitted in such examination. 6. A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: First: Any reasonable punishment ordered by Court and now usual in this School. Second: Imprisonment Third: Fine Fourth: Removal from office; or Fifth: Disqualification to hold and enjoy any of- fice of honor, trust, or profit in this School. 7. Crimes are divided into : First: Felonies; and, Second: Misdemeanors. 8. In every crime or public offense, there must exist a union, or joint operation of act and intent, or criminal negli- gence. PART ONE Of CRIMES and PUNISHMENTS The PENAL CODE Title II 1. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they direct- ly commit the act constituting the offense or aid and abet in its commission, or not being present, have advised and encouraged its commissions, are principals in any crime so committed. 2. All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are acces- sories. Title V OF CRIMES BY AND AGAINST THE EXECUTIVE POWER OF THE STATE 1. Every person who exercises any function of a public office without taking the oath of office, or without giving the re- quired bond, is guilty of a misdemeanor. 2. Every person who gives or offers any bribe to any execu- tive officer of this School with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer, is punishable by imprisonment in Company G for not less then one nor more than six months, and is disqualified from holding any office in this School. 3. Every executive officer, or person elected or appointed to an executive office, who asks, receives or agrees to receive, any bribe, upon any agreement or understanding that his vote, opinion, or action upon any matter then pending, or which may be brought before him in his official capacity, shall be influenced thereby, is punishable by imprisonment in Company G for not less than one nor more than six months and in addition thereto forfeits his office, and is forever disqualified from any office in this School. 20 THE PENAL CODE 4. Every person who attempts, by means of any threats or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the per- formance of his duty, is punishable by fine not exceeding fif- teen dollars or imprisonment in Company F not exceeding five months. 5. Every public officer who, for any gratuity or reward, appoints another person to a public office, or permits another person to exercise or discharge any of the duties of his office, is punishable by a fine not exceeding $10 and in addition thereto, forfeits his office, and is forever disqualified from holding any office in this School. 6. Every person who willfully and knowingly intrudes him- self into any public office to which he has not been elected or appointed, and every person who, having been an executive officer, willfully exercises any of the functions of his office after his term has expired, and a successor has been elected or appoint- ed and has qualified, is guilty of a misdemeanor. 7. Every officer whose office is abolished by law or who, after the expiration of the time for which he may be appointed or elect- ed or after he has resigned, or been legally removed from office, willfully and unlawfully withholds or detains from his successor, or other person entitled thereto, the records, papers, documents or other writing appertaining or belonging to his office, or muti- lates, destroys or take away the same, is punishable by imprison- ment in Company G for not less than one nor more than six months. Title VII CHAPTER I BRIBERY AND CORRUPTION I . Every person who gives or offers to give a bribe to any judicial officer, juror, referee, arbitrator, or umpire, or to any person who may be authorized by law to hear or determine any question or controversy, with intent to influence his vote, opin- THE PENAL CODE 21 ion or decision upon any matter or question which is or may be brought before him for decision, is punishable by imprisonment in Company G for not less than one nor more than six months. 2. Every judicial officer, juror, referee, arbitrator, or umpire and every person authorized by law to hear or determine any question or controversy, who asks, receives, or agrees to receive any bribe, upon any agreement or understanding that his vote, opinion or decision upon any matter or question which is or may be brought before him for decision, shall be influenced thereby is punishable by imprisonment in Company G for not less than one month nor more than ten months. 3. Every person who corruptly attempts to influence a juror, or any person summoned or drawn as a juror, or chosen as an arbitrator, or umpire, or appointed a referee, in respect to his verdict in, or decision of any cause or proceeding, pending or about to be brought before him, either, (a) By means of any communication, oral or written, had with him except in the regular course of pro- ceedings ; (b) By means of any book, paper, or instrument ex- hibited, otherwise than in the regular course of pro- ceedings ; (c) By means of any threat, intimidation, persuasion, or entreaty ; or, (d) By name of any promise, or assurance of any pecuniary or other advantage; Is punishable by fine not exceeding eighteen dol- lars, or by imprisonment in Company G not ex- ceeding six months. 4. Every juror, or person drawn or summoned as a juror, or chosen arbitrator or umpire, or appointed referee, who either, (a) Makes any promise or agreement to give a verdict or decision for or against any party; or (b) Willfully and corruptly permits any communication to be made to him or receives any book, paper, in- strument or information relating to any cause or matter, pending before him, except according to the regular course of proceedings ; 22 THE PENAL CODE Is punishable by fine not exceeding fifteen dollars, or by imprisonment in Company G not exceeding six months. CHAPTER II RESCUES 1. Every person who willfully injures or destroys, or takes or attempts to take, or assists any person in taking or attempting to take, from the custody of any officer or person, any personal property which such officer or person has in charge under any process of law, is guilty of a misdemeanor. CHAPTER IV FORGING, STEALING, MUTILATING, AND FALSIFYING JUDICIAL AND PUBLIC RECORDS AND DOCUMENTS 1 . Every officer having the custody of any record, map or book, or any paper or proceeding of any court, filed or deposited in any public office, or placed in his hands for any purpose, who is guilty of stealing, willfully destroying, mutilating, defacing, altering or falsifying, removing or secreting the whole or any part of such record, map, book, paper, or proceeding, or who permits any other person to do so, is punishable by imprison- ment in Company G for not less than one nor more than ten months. 2. Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this School, which instrument, if genuine, might be filed, or registered, or recorded under any law of this School, is guilty of a felony. CHAPTER V PERJURY AND SUBORDINATION OF PERJURY 1 . Every person, who, having taken an oath that he will tes- tify, declare, depose, or certify truly before any competent tribu- nal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath states as true any material matter which he knows to be false, is guilty of perjury. THE PENAL CODE 23 2. The term "oath," as used in the last section, includes an affirmation, and every other mode authorized by law of attesting the truth of that which is stated. 3. So much of an oath of office as relates to the future per- formance of official duties is not such an oath as is intended by the two preceeding sections. 4. It is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner. 5. It is no defense to a prosecution for perjury that the accused was not competent to give the testimony, deposition, or certificate of which falsehood is alleged. It is sufficient that he did give such testimony or make such deposition or certificate. 6. It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him ; or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceedings. 7. The making of a deposition or certificate is deemed to be complete, within the provisions of this chapter, from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true. 8. An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false. 9. Perjury is punishable by imprisonment in Company G for not less than one nor more than ten months. 10. Every person who willfully procures another person to commit perjury is guilty of subordination of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured. I 1 . Every person, who, by willful perjury, or subordination of perjury, procures the conviction and punishment of any inno- cent person, is punishable by imprisonment not exceeding one year. 24 THE PENAL CODE CHAPTER VI FALSIFYING EVIDENCE 1. Every person, who, upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged, or fraudulently altered or antedated, is guilty of a felony. 2. Every person who willfully prevents or dissuades any persons who is or may become a witness, from attending upon any trial, proceeding, or inquiry, authorized by law, is guilty of a misdemeanor. 3. Every person who gives, or offers, or promises to give to any witness, or person, about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced, or who attempts by any other means fraudulently to induce any person to give false or withhold true testimony, is guilty of a felony. 4. Every person who is a witness, or is about to be called as such, who receives or offers to receive, any bribe, upon any understanding that his testimony shall be influenced thereby, or that he will absent himself from the trial, or proceeding, upon which his testimony is required, is guilty of a felony. CHAPTER VII OTHER OFFENSES AGAINST PUBLIC JUSTICE 1. Every sheriff, keeper of a jail, constable, or other peace officer, who willfully refuses to receive or arrest any person charged with a criminal offense, is punishable by a fine not ex- ceeding fifteen dollars, or imprisonment in Company F for not exceeding five months. 2. Every public officer or other person, having arrested any person upon a criminal charge, who willfully delays to take such person before a magistrate having jurisdiction, to take his examination, is guilty of a misdemeanor. THE PENAL CODE 25 3. Every person who willfully resists, delays or obstructs any public officer, in the discharge or attempt to discharge any duty of his office, when no other punishment is prescribed, is punishable by fine not exceeding fifteen dollars, or imprison- ment in Company G not exceeding five months. 4. Every attorney who, whether as attorney or as counsel- lor, either, (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party ; or (b) Willfully delays his client's suit with a view to his own gain ; or (c) Willfully receives any money or allowance for or on account of any money which he has not laid or become answerable for; Is guilty of a misdemeanor. 5. Every grand juror, who, with knowledge that a challenge interposed against him by a defendant has been allowed, is present at, or takes part, or attempts to take part in consideration of the charge against the defendant, who interposed the chal- lenge, or the deliberations of the grand jury thereon, is guilty of a misdemeanor. 6. Every grand juror, district attorney, clerk, judge, or other officer, who, except by issuing or in executing a warrant of arrest, willfully discloses the fact of a presentment or an indict- ment having been made for a felony, until the defendant has been arrested, is guilty of a misdemeanor. 7. Every grand juror who, except when required by a court, willfully discloses any evidence adduced before the grand jury, or anything which he himself, or any other member of the grand jury, may have said, or in what manner he or any other grand juror may have voted on a matter before them, is guilty of a misdemeanor. 26 THE PENAL CODE Title VIII CHAPTER IX ASSAULT AND BATTERY 1 . An assault is an unlawful attempt, coupled with a pres- ent ability, to commit a violent injury on the person of another. 2. An assault is punishable by fine not exceeding thirty-six dollars, or by imprisonment in Company F not exceeding twelve months or by both. 3. A battery is any willful and unlawful use of force or violence upon the person of another. 4. Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, is punishable by imprisonment in Company G, or in Company F, not exceeding one year, or by fine not exceeding thirty-six dollars or by both. Title IX CHAPTER VII OF CRIMES AGAINST RELIGION, CONSCIENCE, AND OTHER OFFENCES AGAINST GOOD MORALS 1 . Every person who willfully disturbs or disquiets any assemblage of people met for religious worship, by noise, pro- fane discourse, rude or indecent behavior, or by any unneces- sary noise, either within the place where such meeting is held or so near it as to disturb the order and solemnity of the meet- ing, is guilty of a misdemeanor. CHAPTER VIII INDECENT EXPOSURE AND OBSCENE EXHIBITIONS 1 . Every person who willfully and lewdly, either: (a) Exposes his person or the private parts thereof, in any public place, or in any place where are present other persons to be offended or annoyed thereby; or THE PENAL CODE 27 (b) Procuies, counsels, or assists any person so to ex pose himself, or to take part in any model art exhi- bition, or to make any other exhibition of himself, to public view, or to the view of any number of persons, such as is offensive to decency, or is adapted to ex- cite to vicious or lewd thoughts or acts; or (c) Writes, composes, stereotypes, prints, publishes, sells, distributes, keeps for sale, or exhibits any obscene or indecent writing, paper or books; or designs, copies, draws, engraves, paints, or otherwise prepares any obscene or indecent picture or print; or models, cuts, casts, or otherwise makes any obscene or indecent figure; or (d) Writes, composes, publishes, any notice or adver- tisement of any such writing, paper, book, picture, print or figure; or (e) Sings any lewd or obscene song, ballad, or other words, in any public place, or in any place where there are persons present to be annoyed thereby, is guilty of a misdemeanor. Title XIII CHAPTER V LARCENY I. Larceny is the felonious stealing, taking, carrying, leading or driving awaj' the personal property of another. 2. One who finds lost property, under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and restore the property to him, is guilty of larceny. 3. Larceny is divided into two degrees, the first of which is termed grand larceny; the second, petit larceny. 4. Grand Larceny is larceny committed in either of the following cases: 28 THE PENAL CODE (a) When the property taken is of a value exceeding one dollar. (b) When the property is taken from the person of another. (c) When the property taken is a horse, mare, gedling cow, steer, bull, calf, mule, jack, jenny, goat, sheep, or hog. 5. Larceny in other cases is petit larceny. 6. Grand Larceny is punishable by imprisonment in Com- pany G for not less then one nor more then ten months. 7. Petit larceny is punishable by fine not exceeding eigh- teen dollars, or by imprisonment in Company F not exceeding six months, or both. 8. If the thing stolen consists of any evidence of debt, or other written instrument, the amount of money due thereupon, or secured to be paid thereby, and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property the title to which is shown thereby, or the sum which might be recovered in the absence thereof, is the value of the thing stolen. CHAPTER VII EXTORTION 1 . Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right. 2. Fear, such as will constitute extortion, may be induced by a threat, either: (a) To do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or member of his family; or, (b) To accuse him, or any relative of his, or member of his family, of any crime; or, (c) To expose, or impute to him or them any deform- ity or disgrace; or, (d) To expose any secret affecting him or them. 3. Every person who extorts any money or other property from another, under circumstances not amounting to robbery, by THE PENAL CODE 29 means of force, or any threat, such as is mentioned in the pre- ceding section, is punishable by imprisonment in Company G not exceeding five months. 4. Every person who commits any extortion under color of official right, in cases for which a different punishment is not pre- scribed in this Code, is guilty of a misdemeanor. 5. Every person who, by any extortionate means, obtains from another his signature to any paper or instrument, whereby, if such signature were freely given any property would be trans- ferred, or any debt, demand, charge, or right of action created, is punishable in the same manner as if the actual delivery of such debt, demand, charge, or right of action were obtained. 6. Every person, who, with intent to extort any money or other property from another, sends or delivers to any person, any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in section two, is punishable in the same manner as if such money or property were actually obtained by means of such threat. 7. Every person who unsuccessfully attempts, by means of any verbal threat, such as is specified in section two, to extort money or other property from another, is guilty of a misde- meanor. Title XIV MALICIOUS MISCHIEF 1 . Every person who willfully commits any trespass by putting up, affixing, fastening, printing, or painting upon any property belonging to the State, or to any city, county, town or village, or dedicated to the public, or upon any property of any person, without license from the owner, any notice, advertise- ment, or designation of or any name for any commodity, whether for sale or otherwise, or any picture, sign or device intended to call attention thereto, is guilty of a misdemeanor. 2. Every person who maliciously injures or destroys any standing crops of grain, cultivated fruits or vegetables, the pro- perty of another, in any case for which a punishment is not 30 THE PENAL CODE otherwise prescribed by this Code, is guilty of a misdemeanor. 3. Every person who maliciously mutilates, tears, defaces, obliterates, or destroys any written instrument the property of another, the false making of which would be forgery, is punish- able by imprisonment in Company G for not less than one nor more than five months. 4. Every person who willfully opens or reads, or causes to be read, any sealed letter not addressed to himself, without being authorized so to do, either by the writer of such letter or by the person to whom it is addressed, and every person who, without the like authority, publishes any of the contents of such letter, knowing the same to have been unlawfully opened, is guilty of a misdemeanor. PART TWO Of CRIMINAL PROCEDURE THE PENAL CODE 33 Preliminary Provisions 1. No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof. 2. Every public offense must be prosecuted by indictment or information, except, (a) Where proceedings are had for the removal of civil officers of the School. (b) Offenses tried in Justices and Police Courts. 3. The proceedings by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action. 4. A criminal action is prosecuted in the name of the peo- ple of the Preston School of Industry, as a party, against the per- son charged with the offense. 5. The party prosecuted in a criminal action is designated in this Code as the defendant. 6. In a criminal action the defendant is entitled (a) To .a speedy and public trial. (b) To be allowed counsel as in civil actions, or to appear and defend in person and with counsel. (c) To produce witnesses on his behalf, and to be con- fronted with the witnesses against him, in the pres- ence of the court, except that where the charge has been preliminary examined before a committing magistrate, and the testimony taken down by ques- tion and answer in the presence of the defendant, who has, either in person or by counsel cross- examined or had an opportunity to cross-examine the witness; or where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally in the like manner in the presence of the defendant, who has, either in person or by counsel, cross- examined or had an opportunity to cross-examine the witness, the deposition of such witness may be read, 34 THE PENAL CODE upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found within the School. 7. No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted. 8. No person can be compelled, in a criminal action, to be a witness against himself; nor can a person charged with a pub- lic offense, be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. 9. No person can be convicted of a public offense, unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty or upon a judgment of a court, a jury having been waived, in a criminal case not amounting to felony. Title II CHAPTER I OF IMPEACHMENTS 1. The president, vice-president, governor, lieutenant-gov- ernor, secretary of state and treasurer, attorney-general, secretary of military affairs, chief justice, associate justices of the supreme court, and judges of the superior courts are liable to impeach- ment for any misdemeanor in office. 2. All impeachments must be by resolution adopted, originated in, and conducted by managers elected by the Assem- bly, who must prepare articles of impeachment, present them at the bar of the Senate, and prosecute the same. The trial must be before the Senate, sitting as a court of impeachment. 3. When an officer is impeached by the Assembly for a misdemeanor in office, the articles of impeachment must be de- livered to the President of the Senate. 4. The Senate must assign a day for the hearing of the impeachment, and inform the Assembly thereof. The President of the Senate must cause a copy of the articles of impeachment, THE PENAL CODE 35 with a notice to appear and answer the same at the time and place appointed, to be served on the defendant not less than ten days before the day affixed for the hearing. 5. If the defendant does not appear, the Senate upon proof of service or publication, as provided in the last two sections, may, of its own motion, or for cause shown, assign another day for hearing the impeachment, or may proceed, in the absence of the defendant, to trial and judgment. 6. When the defendant appears, he may in writing object to the sufficiency of the articles of impeachment, or he may an- swer the same by an oral plea of not guilty, which plea must be entered upon the journal, and puts in issue every material alle- gation of the articles of impeachment. 7. If the objection to the sufficiency of the articles of im- peachment is not sustained by a majority of the members of the Senate who heard the argument, the defendant must be ordered forthwith to answer the articles of impeachment. If he then pleads guilty, or refuses to plead, the Senate must render judgment of conviction against him. If he pleads not guilty, the Senate must, at such time as it may appoint, proceed to try the impeachment. 8. At the time and place appointed, and before the Senate proceeds to act on the impeachment, the secretary must admin- ister to the President of the Senate, and the President of the Senate to each of the members of the Senate then present, an oath truly and impartially to hear, try and determine the im- peachment; and no member of the Senate can act or vote upon the impeachment, or upon any question arising thereon, without having taken such oath. 9. The defendant cannot be convicted on impeachment without the concurrence of two-thirds of the members elected, voting by ayes and noes, and if two-thirds of the members elected, do not concur in a conviction, he must be acquitted. 10. After conviction, the Senate must, at such time as it may appoint, pronounce judgment, in the form of a resolution entered upon the journal of the Senate. 36 THE PENAL CODE CHAPTER II OF THE REMOVAL OF CIVIL OFFICERS OTHERWISE THAN BY IMPEACHMENT 1 . An accusation in writing against any district, county, township, or municipal officer, for willful or corrupt misconduct in office, may be presented by the grand jury of the county for or in which the officer named is elected or appointed. 2. The accusation must state the offense charged, in ordi- nary and concise language, and without repetition. 3. The accusation must be delivered by the foreman of the grand jury to the district attorney of the company, except when he is the officer accused, who must cause a copy thereof to be served upon the defendant, and require by notice in writing of not less than ten days that he appear before the Superior Court at a time mentioned in the notice, and answer the accusation. The orig- inal accusation must then be filed with the clerk of the court. 4. The defendant must appear at the time appointed in the notice and answer the accusation, unless for some sufficient cause the court assign another day for that purpose. If he does not appear, the court may proceed to hear and determine the accusation in his absence. 5. The defendant may answer the accusation either by objecting to the sufficiency thereof or of any article therein, or by denying the truth of the same. 6. If he objects to the legal sufficiency of the accusation, the objection must be in writing, but need not be in any specific form, it being sufficient if it presents intelligibly the grounds of the objection. 7. If he denies the truth of the accusation, the denial may be oral and without oath and must be entered upon the minutes. 8. If an objection to the sufficiency of the accusation is not sustained, the defendant must answer thereto forthwith. 9. If the defendant pleads guilty, or refuses to answer the accusation, the court must render judgment of conviction against him. If he denies the matters charged, the court must imme- THE PENAL CODE 37 diately, or at such time as it may appoint, proceed to try the ac- cusation. I 0. The trial must be by a jury, and conducted in all re- spects in the same manner as the trial of an indictment for a misdemeanor. Title III Chapter III THE INFORMATION 1 . The complaint is the allegation in writing made to a court or magistrate that a person has been guilty of some des- ignated offense. 2. A magistrate is an officer having power to issue a war- rant for the arrest of a person charged with a public offense. 3. The following persons are magistrates : (a) The justices of the Supreme Court. (b) The judges of the Superior Court. (c) Justices of the peace. Chapter VII EXAMINATION OF THE CASE, AND DISCHARGE OF THE DEFEND- ANT, OR HOLDING HIM TO ANSWER 1 . When the defendant is brought before the magistrate upon any arresr, either with or without warrant, on a charge of having committed a public offense, the magistrate must im- mediately inform him of the charge against him ; of his right to the aid of counsel in every stage of the proceedings. 2. He must also allow the defendant a reasonable time to send for counsel, and postpone the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to any counsel in any Company in the School the defendant may name. The officer must, without delay and without fee, perform that duty. 38 THE PENAL CODE 3. If the defendant requires the aid of counsel, the magis- trate must, immediately after the appearance of counsel, or if, after waiting a reasonable time therefor, none appear, proceed to examine the case. 4. The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf. 5. When the examination of witnesses on the part of the people is closed, any witnesses the defendant may produce must be sworn and examined. 6. While a witness is under examination, the magistrate may exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate, and to be pre- vented from conversing with each other until they are all exam- ined. 7. The magistrate must also, upon the request of the de- fendant, exclude from the examination every person except his clerk, the prosecutor and his counsel, the attorney-general, the district attorney, the defendant and his counsel, and the officer having the defendant in his custody. 8. If a witness, required to enter into an undertaking to appear and testify either with or without sureties, refuses com- pliance with the order for that purpose, the magistrate must commit him to prison until he complies or is legally discharged. 9. When a magistrate has discharged a defendant, or has held him to answer, he must return, without delay, to the clerk of the court at which the defendant is required to appear, the warrant, if any, the depositions and all undertakings of bail, or for the appearance of witnesses, taken by him. THE PENAL CODE 39 Title IV OF PROCEEDINGS AFTER COMMITMENT AND BEFORE INDICTMENT Chapter II FORMATION OF THE GRAND JURY 1. The grand jury being impaneled and sworn, must be charged by the court. In doing so, the court must give them such information as it may deem proper, or as is required by law, as to their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury. 2. The grand jury must then retire to a private room, and inquire into the offenses cognizable by them. On the comple- tion of the business before them, they must be discharged by the court; but, whether the business is completed or not, they are discharged by the final adjournment of the court. 3. If an offense is committed during the sitting of the court, after the discharge of the grand jury, the court may, in its dis- cretion, direct an order to be entered that the sheriff summon another grand jury. 4. The order must require the sheriff to summon at least nineteen persons, qualified to serve as jurors, to appear at a time specified, and a copy thereof, under the seal of the court, must by the clerk be delivered to the sheriff. 5. The sheriff must execute the order and return it, with a list of names of the persons summoned. 6. At the time appointed the list must be called over, and the names of those in attendance be written by the clerk on sep- arate ballots and put into a box from which a grand jury must be drawn. 7. The grand jury must inquire into all public offenses committed or triable within the School, and present them to the court, either by presentment or indictment. 40 THE PENAL CODE 8. A presentment is an informal statement in writing by the grand jury, representing to the court that a public offense has been committed which is triable in the School, and that there is reasonable ground for believing that a particular individual named or described therein has committed it. 9. An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense. 10. The foreman may administer an oath to any witness appearing before the grand jury. 11. In the investigation of a charge for the purpose of either presentment or indictment, the grand jury can receive no other evidence than such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or the deposition of a witness. The grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay, or secondary evidence. 12. The grand jury is not bound to hear evidence for the defendant; but it is their duty to weigh all the evidence submit- ted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the wit- nesses. 1 3. The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or un- contradicted, would, in their judgment, warrant a conviction by a trial jury. 14. If a member of the grand jury knows, or has reason to believe, that a public offense, triable within the School, has been committed, he must declare the same to his fellow-jurors, who must thereupon investigate the same. 15. The grand jury, may at all reasonable times, ask the advice of the court, or the judge thereof, or of the district attor- ney; but unless such advice is asked the judge of the court must not be present during the sessions of the grand jury. The dis- trict attorney of the School may at all times appear before the THE PENAL CODE * 41 grand jury for the purpose of giving information or advice rela- tive to any matter cognizable by them and may interrogate wit- nesses before them whenever they or he thinks it necessary; but no other person is permitted to be present during the sessions of the grand jury except the members and witnesses actually un- der examination, and no person must be permitted to be present during the expression of their opinions or giving their votes on any matter before them. 1 6. Every member of the grand jury must keep secret whatever he himself or any other grand juror may have voted on a matter before them; but may, however, be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consis- tent with that given by the witness before the court, or to dis- close the testimony given before them by any person, upon a charge against such person for perjury in giving his testimony or upon trial therefor. I 7. A grand juror cannot be questioned for anything he may say, or any vote he may give in the grand jury, relative to a matter, legally pending before the jury, except for a perjury of which he may have been guilty, in making an accusation or giving testimony to his fellow-jurors. Chapter IV PRESENTMENT, AND PROCEEDINGS THEREON 1. A presentment cannot be found without the concur- rence of at least twelve grand jurors. When so found it must be signed by the foreman. 2. The presentment, when found, must be presented by the foreman, in the presence of the grand jury, to the court, and must be filed with the clerk. 3. If the facts stated in the presentment constitute a public offense, triable in the School, the court must direct the clerk to issue a bench-warrant for the arrest of the defendant. 42 THE PENAL CODE Title V OF THE INDICTMENT Chapter I FINDING AND PRESENTMENT OF THE INDICTMENT 1 . An indictment cannot be found without the concurrence of at least twelve grand jurors. When so found, it must be en- dorsed, "A True Bill," and the endorsement must be signed by the foreman of the grand jury. 2. If twelve grand jurors do not concur in finding an in- dictment against a defendant who had been held to answer, the depositions and statement, if any, transmitted to them must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed. 3. The dismissal of the charge does not prevent its resub- mission to a grand jury as often as the court may direct. But without such direction it cannot be resubmitted. 4. When an indictment is found, the names of the wit- nesses examined before the grand jury, or whose depositions may have been read before them, must be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the court. 5. When an indictment is found against a defendant not in custody, the same proceedings must be had as are prescribed in sections provided in other chapters. Chapter II 1 . No indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the de- fendant upon its merits. THE PENAL CODE 43 2. When an instrument, which is the subject of an indict- ment or information for forgery has been destroyed or withheld by the act or the procurement of the defendant, and the fact of such destruction or withholding is alleged in the indictment or information, and established on the trial, the misdescription of the instrument is immaterial. 3. In an indictment or information for perjury, or subordi- nation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was com- mitted, and in what court, and before whom it was taken, had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indict- ment or information need not set forth the pleadings, record or proceedings with which the oath is connected, nor the commis- sion or authority of the court or person before whom the perjury was committed. 4. Upon an indictment or information against several de- fendants, any one or more may be convicted or acquitted. Title VI OF PLEADINGS AND PROCEEDINGS AFTER INDICTMENT AND BE- FORE THE COMMENCEMENT OF THE TRIAL Chapter I OF THE ARRAIGNMENT OF THE DEFENDANT 1 . If the indictment or information be for a felony, the defendant must be personally present; but if for a misdemeanor, he may appear upon the arraignment by counsel. 2. When his personal appearance is necessary, if he is in custody, the court may direct, and the officer in whose custody he is must bring him before it to be arraigned. 44 THE PENAL CODE 3. If the defendant has been discharged on bail, or has de- posited money instead thereof, and do not appear to be arraigned when his personal appearance is necessary, the court, in addition to the forfeiture of the undertaking of bail or of the money de- posited, may direct the clerk to issue a bench-warrant for his arrest. 4. The arraignment must be made by the court, or by the clerk or district attorney under its direction, and consists in read- ing the indictment or information to tjhe defendant and deliver- ing to him a copy thereof, and of the indorsements thereon, including the list of witnesses, and asking him whether he pleads guilty or not guilty to the indictment or information. 5. If, on the arraignment, the defendant requires it, he must be allowed a reasonable time, not less than one day, to answer the indictment or information. He may, in answer to the arraignment move to set aside, demur, or plead to the indictment or information. Chapter II SETTING ASIDE THE INDICTMENT I. The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases: If it be an indictment, (a) Where it is not found, indorsed, and presented as prescribed in this Code. (b) When the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, are not inserted at the foot of the indictment or indorsed thereon. (c) When a person is permitted to be present during the session of the grand jury, and when the charge em- braced in the indictment is under consideration, except as provided in section fifteen of Chapter three Title four, i (d) When the defendant had not been held to answer before the finding of the indictment, on any ground THE PENAL CODE 45 which would have been good ground for challenge, either to the panel or to any individual grand juror. If it be on information, (a) That before the filing thereof the defendant had not been legally committed by a magistrate. (b) That it was not subscribed by the district attorney of the county. 2. If the motion to set aside the indictment or information is not made, the defendant is precluded from afterward taking the objections mentioned in the last section. Chapter III DEMURRER 1 . The only pleading on the part of the defendant is either a demurrer or a plea. 2. Both the demurrer and the plea must be put in, in open court, either at the time of the arraignment, or at such other time as may be allowed to the defendant for that purpose. 3. The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the indictment or information, or it must be disregarded. 4. Upon the demurrer being filed, the argument upon the objections presented thereby must be heard, either immediately, or at such time as the court may appoint. 5. Upon considering the demurrer, the court must give judgment, either allowing or disallowing it, and an order to that effect must be entered upon the minutes. 6. If the demurrer is allowed, the judgment is final upon the indictment or information demurred to, and is a bar to an- other prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allow- ed may be avoided in a new indictment or information, directs the case to be submitted to another grand jury, or directs a new information to be filed ; provided, that after such order of resub- mission, the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases. 46 THE PENAL CODE Chapter IV PLEA 1 . There are four kinds of pleas to an indictment or infor- mation. A plea of (a) Guilty (b) Not guilty. (c) A former judgment of conviction or acquittal of the offense charged, which may be placed either with or without the plea of not guilty. (d) Once in jeopardy. 2. Every plea must be oral, and entered upon the minutes of the court, in substantially the following form : (a) If the defendant plead guilty : "The defendant pleads that he is guilty of the offense charged." (b) If he plead not guilty : "The defendant pleads that he is not guilty of the offense charged." (c) If he plead a former conviction or acquittal : "The defendant pleads that he has already been convicted (or acquitted) of the offense charged by the judgment of the court of (naming it,) rendered at (naming the place,) on the day of " (d) If he plead once in jeopardy : "The defendant pleads that he has once been in jeopardy for the offense charged (specifying the time, place and court)." 3. A plea of guilty can be put in by the defendant himself only in open court, unless upon indictment or information against a corporation, in which case it may be put in by counsel. The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty submitted. 4. The plea of not guilty puts in issue every material alle- gation of the indictment or information. 5. When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information the conviction, acquittal, or jeopardy, is a bar to another indict- ment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily THE PENAL CODE 47 included therein, of which he might have been convicted under that indictment or information. 6. If the defendant refuses to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered. Chapter VIII FORMATION OF THE TRIAL JURY AND THE CALENDAR OF ISSUES FOR THE TRIAL 1. Trial juries for criminal actions are formed in the same manner as trial juries in civil actions. 2. The clerk must keep a calendar of all criminal actions pending in the court, enumerating them according to the date of filing of the indictment or information specifying opposite the title of each action whether it is for a felony or a misdemeanor, and whether the defendant is in custody or on bail. Title VII OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT Chapter I CHALLENGING THE JURY f. A challenge is an objection made to the trial jurors, and is of two kinds : (a) To the panel. (b) To an individual juror. 2. When several defendants are tried together, they cannot sever their challenges, but must join therein. 3. The panel is a list of jurors returned by a sheriff to serve at a particular court, for the trial of a particular action. 4. A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party. 48 THE PENAL CODE 5. A challenge to the panel must be taken before a juror is sworn, and must be in writing or be noted by the phonographic reporter, and must plainly and distinctly state the facts constitut- ing the ground of challenge. 6. If the sufficiency of the facts alleged as ground of the challenge, is denied, the adverse party may except to the chal- lenge. The exception need not be in writing, but must be enter- ed on the minutes of the court, or of the phonographic reporter and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true. 7. If, either upon an exception to the challenge, or a denial of the facts, the challenge is allowed, the court must discharge the jury so far as the trial in question is concerned. If it is dis- allowed, the court must direct the jury to be impaneled. 8. Before a juror is called, the defendant must be informed by the court or under its direction, that if he intends to challenge an individual juror he must do so when the juror appears and before he is sworn. 9. A challenge to an individual juror is either, (a) Peremptory ; or (b) For cause. 1 0. It must be taken when the juror appears, and before he is sworn to try the cause ; but the court may for cause permit it to be taken after the juror is sworn and before the jury is completed. 11. A peremptory challenge can be taken by either party, and may be oral. It is an objection to a juror for which no rea- son need be given, but upon which the court must exclude him. 12. A challenge for cause may be taken by either party. It is an objection to a particular juror, and is either : (a) General — That the juror is disqualified from serving in any case : or, (b) Particular — That he is disqualified from serving in the action on trial. THE PENAL CODE 49 Chapter II THE TRIAL 1. The jury having been impaneled and sworn, the trial must proceed in the following order, unless otherwise directed by the court: (a) If the indictment or information be for felony, the clerk must read it, and state the plea of the defend- ant to the jury, and in cases where it charges a prev- ious conviction, and the defendant has confessed the same, the clerk in reading shall omit therefrom all that relates to such previous conviction. In all other cases this formality may be dispensed with. (b) The district attorney, or other counsel for the people must open the cause and offer the evidence in sup- port thereof. (c) The defendant or his counsel may then open the de- fense, and offer his evidence in support thereof. (d) The parties may then respectively offer rebutting testimony only unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case. (e) When the evidence is concluded, unless the case is • submitted to the jury on either side, or on both sides, without argument, the district attorney or other coun- sel for the people, and counsel for the defendant, may argue the case to the court and jury ; the district attorney or counsel for the people opening the argu- ment, and having right to close. (f) The judge may then charge the jury, and must do so on any points pertinent to the issue, if requested by either party; and he may state the testimony and de- clare the law. If the charge be not given in writing it must be taken down by the phonographic reporter. 2. When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the court, the order prescribed in the last section may be departed from. 50 THE PENAL CODE 3. When two or more defendants are jointly charged with a felony, any defendant requiring it, must be tried separately. In other cases defendants jointly charged may be tried separately or jointly in the discretion of the court. 4. If a juror has any personal knowledge respecting a fact controversy in a cause, he must declare the same in open court during the trial. If, during the retirement of the jury, a juror declare a fact which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness and examined in the presence of the parties. 5. The jurors sworn to try an action may, at any time be- fore the submission of the cause to the jury, in the discretion of the court, be permitted to separate or be kept in charge of a proper officer. The officer must be sworn to keep the jurors to- gether until the next meeting of the court, to suffer no person to speak to them, or communicate with them, nor to do so himself, on any subject connected with the trial, and to return them into court at the next meeting thereof. 6. The court must decide all questions of law which arise in the course of a trial. 7. In charging the jury, the court must state to them all matters of law necessary for their information. Either party may present to the court any written charge and request that it be giv- en. If the court thinks it correct and pertinent it must be given, if not, it must be refused. Upon each charge presented and given or refused, the court must distinguish, showing by the in- dorsement what part of the charge was given and what part re- fused. Chapter IV THE VERDICT I. When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not ap- pear, the rest must be discharged without giving a verdict. In that case the action may be again tried at the same or another term. THE PENAL CODE 51 2. If charged with a felony, the defendant must, before the verdict is received, appear in person. If for a misdemeanor the verdict may be rendered in his absence. 3. When the jury appears, they must be asked by the court, or clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. 4. The jury may render a general verdict, or, when they are in doubts as to the legal effect of the facts proved, they may. except upon a trial for libel, find a special verdict. Title IX OF APPEALS TO THE SUPREME COURT Chapter I APPEALS, WHEN ALLOWED, AND HOW TAKEN, AND THE EFFECT THEREOF 1 . Either party in a criminal action amounting to a felony may appeal to the Supreme Court, on questions of law alone, as prescribed in this chapter. 2. The party appealing is known as the appellant, and the adverse party as the respondent, but the title of the action is not changed in consequence of the appeal. 3. An appeal may be taken by the defendant: (a) From a final judgment of conviction. (b) From an order denying a motion for a new trial. (c) From an order made after judgment, affecting the substantial rights of the party. 4. An appeal may be taken by the people: (a) From a judgment for the defendant on a demurrer to the indictment or information. (b) From an order granting a new trial. (c) From an order arresting judgment. 52 THE PENAL CODE (d) From an order made after judgment, affecting the substantial rights of the people. (c) From an order of the court directing the jury to find for the defendant. 5. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party. 6. An appeal which is taken by the people in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed. 7. Upon the appeal being taken, the clerk of the court with whom the notice of appeal is filed must, within five days thereafter, in case the bill of exceptions has been settled by the judge before the giving of said notice, but if not, then within twenty days from the settlement of the bill of exceptions, with- out charge, transmit to the clerk of the appellate court fifteen printed copies (one of which shall be certified to and be the orig- inal) of the notice of appeal, the record, and all bills of excep- tions; and, upon the receipt thereof, the clerk of the appellate court must file the original, and dispose of the copies as he is required to do in the case of transcripts on appeal in civil cases, and all his services as provided herein must be without charge. The clerk of the lower court must also within the time above specified serve printed copies of the above named papers, with- out charge, upon the defendant's attorney, and upon the Attor- ney General. Chapter HI ARGUMENT OF THE APPEAL 1 . All appeals in criminal cases must be heard and deter- mined by the appellate court, within fifteen days after the record is filed in said appellate court, unless continued on motion or with the consent of the defendant. 2. The judgment may be affirmed if the appellant fail to appear, but can be reversed only after argument, though the respondent fail to appear. THE PENAL CODE 53 3. The defendant need not personally appear in the appel- late court. Chapter IV JUDGMENT UPON APPEAL 1 . After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties. 2. The court may reverse, affirm, or modify the judgment or order appealed from, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial. 3. When a new trial is ordered, it must be directed to be had in the court of the Company from which the appeal was taken. 4. If a judgment against the defendant is affirmed, the original judgment must be enforced. 5. When the judgment of the appellate court is given, it must be entered in the minutes, and a certified copy of the entry forthwith remitted to the clerk of the court from which the ap- peal was taken. Title X MISCELLANEOUS PROCEEDINGS Chapter II WHO MAY BE WITNESSES IN CRIMINAL ACTIONS 1. The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and pro- ceedings, except as otherwise provided in this code. 2. All persons who are disinterested, and not infamous are competent witnesses, and are presumed to be so until the con- trary is shown. 3. A person convicted of an infamous crime is a compe- tent witness before sentence. 54 THE PENAL CODE 4. An accomplice should not be made a witness without an order of the court, on application, showing that there is no other witness by whom the offense can be proved. 5. It is not a valid objection to a witness that his name is not entered on the indictment. 6. There is no rule of law fixing the precise amount of ex- perience or degree of skill necessary to constitute an expert. 7. When a witness is examined as an expert, the other party may cross-examine him by taking his opinion based on another state of assumed facts, or on a hypothetical case. 8. A witness, even though not an expert, who details a conversation had between him and another, may in connection therewith, state his opinion, belief and impression as to the state of mind of such person. 9. Books of Science, as medical books, are not admissible in evidence, either to sustain or contradict the opinion of a witness. 1 0. A witness may make use of a memorandum taken at the time of the facts contained therein. 1 I. Opposing counsel is entitled to an inspection of pap- ers offered in evidence to explain them or disprove their authen- ticity. 12. Where the answer to a question may furnish evidence to convict a witness, he is not bound to answer unless exempt from liability by statute. 1 3. The court may in its discretion allow or disallow a question which tends to disgrace or degrade a witness. 1 4. A party is not allowed to contradict his own witness by asking him whether he had not sworn differently on a former occasion. 15. A witness may be impeached on his statements made out of court. Before the credibility of a witness can be assailed by something he may have said elsewhere, the witness must be first inquired of concerning it, and the time, place and person involved must be called to his attention. 1 6. The prosecution may show by other witnesses, that the THE PENAL CODE 55 witness for defendant had given a different account of what had occurred at the time, from that testified to on the stand. I 7. The testimony of a witness, taken in writing by a mag- istrate, may be used to show contradictory statements made by him, but for no other purpose. 18. A member of the grand jury may be called to contra- dict him. They may testify that the person was not a witness before them. A witness may be contradicted by a person who heard him testify on a former hearing. When necessary to pro- mote juctice, a grand juror may be compelled to testify what the witness swore to before them. 19. No inference prejudicial to the veracity of witnesses can be drawn from the fact that they did not testify before the committing magistrate. A witness cannot be impeached by proving that he has been guilty of stealing. 20. Permitting a cross-examiner to recall a witness to fur- ther cross examine him, is in the discretion of the court. 2 1 . The court has a right to control the examination of witnesses, and may refuse to allow an improper question to be asked. 22. When a witness appears adverse in interest to the party calling him, the admission of leading questions is in the discretion of the court. An interrogatory by the judge is not a leading question. The court has discretion to allow witnesses to be examined at any time before verdict. 23. A witness cannot be discredited by proof of particular acts not directly involved in the issue, but he may be discredited by showing his bad .moral character. 24. When a defendant testifies in his own behalf, he puts his general character and credibility in issue and may be im- peached the same as any other witness. 25. A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offer himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. His neglect or refusal to be a witness cannot in any man- 56 THE PENAL CODE ner prejudice him, nor be used against him on the trial or pro- ceeding. 26. A defendant has a right to testify on his own behalf. The defendant need not testify in his own behalf, and no infer- ence of guilty can be drawn from his failure to do so. Title XI OF PROCEEDINGS IN JUSTICES' AND POLICE COURTS AND APPEALS TO SUPERIOR COURTS Chapter I PROCEEDINGS IN JUSTICES' AND POLICE COURTS 1. All proceedings and actions before a Justices' or Police Court, for a public offense of which such courts have jurisdiction, must be commenced by complaint under oath, setting forth the offense charged, with such particulars of time, place, person and property, as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the com- plaint. 2. If the justice of the peace, or police justice, is satisfied therefrom that the offense complained of has deen committed, he must issue a warrant of arrest. 3. A docket must be kept by the justice of the peace or police justice, or by the clerk of the courts held by them, if there is one, in which must be entered each action, and the proceedings of the court therein. 4. Upon a plea other than a plea of guilty, if the parties waive a trial by jury, and an adjournment or change of venue is not granted, the court must proceed to try the case. 5. Before the commencement of a trial in any of the courts, either party may, upon good cause shown, have a reason- able postponement thereof. 6. The defendant must be personally present before the trial can proceed. THE PENAL CODF ; 57 ; . 7. A trial by jury may be waived by the consent of both parties expressed in open court and entered in the docket. The information of the jury is provided for in chapter cne, title three, part one, of the Code of Civil Procedure, 8. The court must administer to the juiy the following cath: "You do swear that you will well and truly try this issue between the people of the Preston School of Industry and A. B., the de- fendant, and a true verdict render according to the evidence. 9. After the jury are sworn, they must sit together and hear the proofs and allegations of the parties, which must be deliver- ed in public, and in the presence of the defendant. 1 0. The court must decide all questions of law which may arise in the course of a trial, but can give no charge with respect to matters of fact. 1 1 . The verdict of the jury must in all cases be general. When the jury have agreed upon their verdict, they must deliver it publicly to the court, who must enter, or cause to be entered, in the minutes. 1 2. The jury cannot be discharged after the cause is sub- mitted to them, until they have agreed upon and rendered their verdict, unless for good cause the court sooner discharges them. 13. When the defendant pleads guilty, or is convicted, either by the court or by a jury, the court must render judgment thereon of fine or imprisonment, or both, as the case may be. Title XII OF SPECIAL PROCEEDINGS OF A CRIMINAL NATURE Chapter III OF SEARCH WARRANTS 1 . A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him to seach for personal property, and bring it be- fore the magistrate. 56 THE PENAL CODE 2. It may be issued upon either of the following grounds ; (a) When the property was stolen or embezzled ; in which case it may be taken on the warrant, from any place in which it is concealed, or from the possessio n of the person by whom it was stolen or embezzled , or from any person in whose possession it may be. (b) When it was used as the means of committing a fel- ony, in which case it may be taken on the warrant , from the place in which it is concealed, or from the possession of the person by whom it was used in th e commission of the offense, or from any person in whose possession it may be. (c) When it is in the possession of any person with the intent to use it as the means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its being discovered ; in which case it may be taken on the warrant from such person, or from any place occupied by him or under his con- trol, or from the possession of the person to whom he may have so delivered it. 3. A search warrant cannot be issued but upon probable ^cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched. 4. When the officer takes property under the warrant, he must give a receipt for the property taken (specifying it in detail) to the person from whom it was taken by him, or in whose pos- session it was found; or in the absence of any person, he must leave it in the place where he found the property. 5. The officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the proper- ty taken, made publicly or in the presence of the person whose possession it was taken from. 6. The magistrate must thereupon, if required, deliver a copy of the inventory to the person from whose possession the property was taken, and to the applicant for the warrant. RETURN TO the circulation desk of any University of California Library or to the NORTHERN REGIONAL LIBRARY FACILITY Bldg. 400, Richmond Field Station University of California Richmond, CA 94804-4698 - ALL BOOKS MAY BE RECALLED AFTER 7 DAYS 2-month loans may be renewed by calling (510)642-6753 1-year loans may be recharged by bringing books to NRLF Renewals and recharges may be made 4 days prior to due date DUE AS STAMPED BELOW J AN 3/994 IKELEY FORM NO. DD6, 60m, 12/80 BERKELEY, CA 94720 'c ** © *« $ 381780 UNIVERSITY OF CAUFORNIA LIBRARY