4.

guilty.

Once in jeopardy, which may be pleaded with or without the plea of not [C. L. § 5308*.

N. Dak. (1895) 2 6753*; Cal. Pen. C. 1429*.

District court practice, 22 4788, 4789.

5130. Pleas must be oral. Plea of guilty. Higher offense. Every plea must be oral and entered in the minutes. If the defendant pleads guilty. the court may, before entering such plea or pronouncing judgment, examine witnesses to ascertain the gravity of the offense committed; and if it appears to the court that a higher offense has been committed than the offense charged in the complaint, the court may order the defendant to be committed or admitted to bail, to answer any information that may be filed or any indictment that may be found against him. [C. L. § 5309*.

Cal. Pen. C. 2 1429*.

5131. When trial to begin. Upon a plea other than a plea of guilty, unless a jury is demanded or an adjournment or change of venue is not granted, the court must proceed to try the case. [C. L. § 5310*.

Cal. Pen. C. 1430*.

5132. Change of place of trial. Grounds. Affidavit. A change of the place of trial may be had at any time before the trial commences:

1. When the defendant files an affidavit in writing, stating that he has reason to believe, and does believe, that he cannot have a fair and impartial trial of the action before the justice about to try the same, by reason of the bias or prejudice of such justice, the action must be transferred to a justice of the county agreed upon by the parties, or, if there is no agreement, to the nearest justice within the county to which such objection does not apply.

2. When it appears by affidavit that the defendant cannot have a fair and impartial trial, by reason of the prejudice of the citizens of the precinct or city, the action must be transferred to a justice of a precinct in the same county where the same prejudice does not exist. [C. L. § 5311*.

Cal. Pen. C. ? 1431*.

5133. Id. But one change allowed. The place of trial shall not be changed more than once. [C. L. § 3539*.

Cal. C. Civ. P. 834*.

5134. Procedure when change ordered. When a change of the place of trial is ordered, the justice must forthwith attach to the original papers a certified copy of his docket entries in the action, and deliver the same to an officer, who must execute the order without delay by taking the defendant, if in custody, before the justice named and delivering to such justice the papers so received. Upon receipt thereof the justice to whom the action is transferred must proceed in the same manner as if the proceeding or action had been originally commenced in his court. [C. L. § 5312*.

N. Dak. (1895) 22 6750, 6751; Cal. Pen. C. ? 1432*.

5135. Postponement of trial for cause. Before the commencement of a trial in a justice's court either party may, upon good cause shown, have a reasonable postponement thereof. [C. L. § 5313.

Cal. Pen. C. 1433*.

The defendant may

5136. Grounds of demurrer to complaint. demur to the complaint when it appears upon the face thereof:

1. That it does not conform to the requirements of section fifty-one hundred and twenty-five.

2. That the facts stated do not constitute a public offense. [C. L. § 5315. 5137. Demurrer sustained. New complaint or discharge. If the demurred be sustained a new complaint must be filed within such time not exceeding one day as the justice may name; if such new complaint be not filed the defendant must be discharged. [C. L. § 5316.

FORMATION OF THE JURY.

5138. Trial in defendant's absence forbidden. Exception. The trial must not proceed in the absence of the defendant, unless he voluntarily absents himself with full knowledge that the trial is being had. [C. L. § 5314*.

Cal. Pen. C. 1434*.

5139. Jury waived unless demanded. A trial by jury shall be deemed to be waived unless a jury is demanded by either party. [C. L. § 5318. Cal. Pen. C. 1435*. against city ordinance, 241. Trial must be by When defendant not entitled to jury for offense jury unless the same is waived, 22 4516, 4810. 5140. Jurors: summoning, qualifications, challenges. The qualifications of, and manner of summoning jurors to serve in justices' courts are prescribed under the title of "Jurors" title thirty-five of the Revised Statutes. The provisions of chapter thirty-two of the code of criminal procedure, relative to challenging jurors, shall govern, as far as the same shall be applicable. $$ 5318*, 5319*, and 5329*.

Cal. Pen. C. 1435*.

Jurors, 21291-1323. Challenging jurors, ?? 4816-4844.

THE TRIAL.

[C. L.

5141. Oath administered to jury. The jury having been impaneled the court must administer to them the following oath: "You do swear that you will well and truly try this issue between the state of Utah and A B, the defendant, and a true verdict render according to the evidence." [C. L. § 5330*.

Cal. Pen. C. 1437*.

5142. Duty of jury. Public trial, etc. After the jury shall be sworn they must sit together and hear the proofs and allegations of the parties which must be delivered in public and in the presence of the defendant. [C. L. § 5331.

Cal. Pen. C. 1438.

When sittings public, 695; when not, ? 696.

5143. Court to decide questions of law; cannot charge as to facts. The court must decide all questions of law which may arise in the course of the trial, but can give no charge with respect to matters of fact. [C. L. $5332.

Cal. Pen. C. 1439.

5144. Jury may decide in court or retire. Oath of officer. After hearing the proofs and allegations, the jury may decide in court or may retire for consideration. If they do not immediately agree, an officer must be sworn to the following effect: "You do swear that you will keep this jury together in some quiet and convenient place, that you will not permit any person to speak to them, nor speak to them yourself, unless by order of the court, or to ask them whether they have agreed upon a verdict; and that you will return them into court when they shall have so agreed, or when ordered by the court." [C. L. § 5333.

Cal. Pen. C. 1440.

5145. Verdict delivered in public. Entry of. When the jury shall have agreed on their verdict, they must deliver it publicly to the court, who must enter it, or cause it to be entered, upon the minutes. [C. L. § 5334.

Cal. Pen. C. 1441*.

Verdict of jury must be unanimous, Con. art. 1, sec. 10.

Retrial of

5146. Verdict as to one or more of defendants. others. When several defendants shall be tried together, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the rest may be tried by another jury. [C. L. § 5335.

Cal. Pen. C. 1442.

5147. Form of verdict. The verdict of the jury on a plea of not guilty must be to the effect that the jury find the defendant "guilty," or "not guilty," as the case may be. On any other plea, the verdict must be "for the state," or "for the defendant." [C. L. § 5075*.

Cal. Pen. C. 1151*.

5148. Jury discharged after verdict. Exception. The jury cannot be discharged after the cause is submitted to them, until they have agreed upon and rendered their verdict, unless for good cause the court sooner discharges them. [C. L. § 5336.

Cal. Pen. C. 1443.

5149. Retrial when jury fail to agree. If the jury is discharged, as provided in the last section, the court may proceed again to the trial, in the same manner as upon the first trial, and so on until a verdict is rendered. $5337.

Cal. Pen. C. 1444.

[C. L.

5150. Sickness of juror. Procedure. If a juror be incapacitated by sickness for attendance through the trial, another juror may be summoned and the trial commenced over again, or the jury discharged and a new jury impaneled. [C. L. § 5338.

Cal. Pen. C. ? 1123*.

NEW TRIAL AND ARREST OF JUDGMENT.

5151. Motion must be made before judgment. At any time before judgment, the defendant may move for a new trial or in arrest of judgment. [C. L. § 5339.

Cal. Pen. C. 1450.

5152. Grounds for new trial. A new trial may be.granted in the following cases:

1.

When the trial has been had in the absence of the defendant, unless he has voluntarily absented himself with full knowledge that a trial was being had. When the jury shall have received any evidence out of court.

2.

3.

When the jury shall have separated without leave of court, after having retired to deliberate upon their verdict, or been guilty of any misconduct tending to prevent a fair and due consideration of the case.

4. When the verdict shall have been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors.

5. When there shall have been error in the decision of the court, given on any question of law during the course of the trial.

6.

When the verdict is contrary to law or evidence.

7. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial; but when a motion for a new trial is made upon this ground, the defendant must produce at the hearing the affidavits of the witnesses by whom such newly discovered evidence is expected to be given. [C. L. § 5340.

Cal. Pen. C. 1451.

New trial, district court, 24950-4954.

5153. Grounds for motion in arrest of judgment. The motion in arrest of judgment may be founded on any substantial defect in the complaint, and the effect of an arrest of judgment shall be to place the defendant in the situation in which he was before the trial was had. [C. L. § 5341.

Cal. Pen. C. 1452.

Arrest of judgment, district court, 4901-4904.

JUDGMENT AND EXECUTION.

5154. Time for pronouncing judgment. Postponement. After a plea or verdict of "guilty," or after a verdict against the defendant, the court must appoint a time for rendering judgment, which must not be more than two

days nor less than six hours after the verdict is rendered, unless the defendant waives the postponement, or the judgment is arrested, or a new trial granted. If postponed, the court may hold the defendant to bail to appear for judgment. Unless such postponement is demanded, it shall be deemed to be waived. [C. L. § 5348*.

Cal. Pen. C. ? 1449*.

But total term of imprisonment under sentence Boy or girl under eighteen may be sent to indus- by justice of peace cannot be made to exceed six trial school, ? 2142. months. Ex parte Lewis, 10 U. 47; 41 P. 1077.

5155. Judgment on plea of guilty. Fine. Imprisonment at labor. When a defendant pleads guilty or is convicted, the court must render judgment that he be punished by a fine or imprisonment, or by both, with or without costs. A judgment for the payment of a fine, or of a fine and costs, may also direct that the defendant be imprisoned at hard labor until such fine, or such fine and costs are paid, in the proportion of one day's imprisonment for every dollar of the fine and costs. [C. L. SS 5343, 5344*.

Cal. Pen. C. 1445, 1446*.

Imprisonment at abor whether or not so designated, 4930. Fine and imprisonment, 2 691. Fees of justices of the peace, 2978, 979.

The legislature of the territory could confer on justices of the peace no jurisdiction in criminal cases except that usually exercised by such justices at the date of the passage of the Organic Act, and authority to impose a fine in any sum less than $300, and an imprisonment for a term not exceeding six months, is in excess of the jurisdiction

which the legislature could confer on justices of the peace under the Organic Act. People, ex rel. Yearian, v. Spiers, 4 U. 385; 10 P. 609; 11 P. 509. Id., 4 U. 482; 11 P. 618. Overruled in People v. Douglass, 5 U. 283; 14 P. 801.

A justice of the peace exhausts his jurisdiction in sent ncing the defendant to impri onment for a period of six months, and has no valid authority to adjudge that he be further imprisoned in default of payment of the fine imposed. In re Lewis, 10 U. 47; 41 P. 1077.

5156. Acquittal. When complainant to pay costs. When the defendant is acquitted, he must be immediately discharged. If it appears to the court that the prosecution was malicious or without probable cause, it may render a judgment that the complainant pay the costs of the action, which judgment may be enforced in the same manner as a judgment in a civil action; and the complainant shall have the same right of appeal. [C. L. § 5346*.

Cal. Pen. C. 2 1447*.

5157. Fine without imprisonment. Execution. A judgment which imposes a fine without directing that the defendant be imprisoned until the same is satisfied, may be enforced in the same manner as a judgment in a civil action, and execution shall issue accordingly.

N. Dak. (1895) 2 6767*.

5158. Judgment of imprisonment, how executed. A judgment of imprisonment must be executed by delivering the defendant into the custody of the sheriff or other officer in charge of the county jail. A copy of the judgment, duly certified by the justice, is a sufficient warrant for the doing of every act necessary or proper in the due execution thereof. The officer shall, upon discharging the defendant, return such copy to the justice, with an account of his doings indorsed thereon, and must at the same time pay over to the justice all money which he may have received from the defendant in payment of the fine. [C. L. § 5350*.

N. Dak. (1895) 2 6768*, 6769*.

5159. Fines, etc., to be paid into county treasury. When a fine is paid or bail is forfeited, the justice must pay the same to the county treasurer within thirty days thereafter. [C. L. § 5352*.

Cal. Pen. C. 1457*.

APPEAL.

5160. Appeal must be taken within thirty days. Any defendant in a criminal action tried before a justice of the peace may appeal from the final judgment therein to the district court of the county where the court of such justice

Amended chap.57

1899

is held, at any time within thirty days from the time of the rendition of the judg ment. [C. L. § 5379.

Cal. Pen. C. 2 1466*.

Appeal from justice's court, finality, Con. art. 8, sec. 9; 2 671.

5161. Appeal how taken. Notice and undertaking. The appeal shall be taken by giving notice and by filing an undertaking by or on behalf of the appellant, in at least double the amount of the fine or of the fine and costs, as the case may be, with at least two good and sufficient sureties, and conditioned that the appellant will appear at the first term of the court thereafter to which the appeal is taken and answer the charge of which he shall have been convicted, or will appear in whatever court it may be prosecuted, and will at all times hold himself amenable to the orders and process of such court, and if convicted will appear for judgment and surrender himself in execution thereof; or, if he fails to perform either of these conditions, that the sureties will pay to the state of Utah or to the municipal corporation as the case may be, the sum specified in the undertaking. [C. L. § 5380*.

Undertaking on appeal, qualifications of bail, 5000.

5162. Notice of appeal to be filed and served. Notice of appeal shall be filed with the justice, and a copy thereof shall be served on the county attorney. [C. L. § 5380*.

N. Dak. (1895) ? 6782*.

5163. Justice to transmit papers on appeal. Deposit. The justice must, within ten days after an appeal is perfected, transmit to the clerk of the district court all papers relating to the case and a certified copy of his docket. If money shall have been deposited in lieu of bond, it must accompany the return. [C. L. § 5381*.

N. Dak. (1895) ? 6786*.

5164. Witnesses may be required to give bonds. When an appeal is taken, the justice must, if application is made by the county attorney, cause all material witnesses on behalf of the prosecution to enter into an undertaking in like manner as in a case where a defendant is held to answer on a preliminary examination. [C. L. § 5381*.

N. Dak. (1895) ? 6785.

5165. Trial anew in district court. Dismissal of appeal. An appeal duly perfected transfers the action to the district court for trial anew. The appeal may be dismissed on either of the following grounds:

1.

2.

3.

For failure to take the same in time.

For failure to appear in the district court when required.

For failure to file a sufficient undertaking; provided, that no appeal shall be dismissed for any insufficiency or informality in the undertaking, if the defendant files a sufficient undertaking in pursuance of an order of court. If the appeal is dismissed, a copy of the order of dismissal must be remitted to the justice, who may proceed to enforce the judgment. [C. L. §§ 5382*, 5383*, 5384*. missal, is valid. 335; 23 P. 756.

Rule requiring appellant to pay clerk's fees for filing and jury fee under 5457 within thirty days after papers are received, under penalty of dis

Salt Lake City v. Redwine, 6 T. Legg v. Larson, 7 U. 110; 25 P. 731.

5166. Dismissal of complaint on appeal. Grounds. The complaint, on motion of defendant, may be dismissed upon the following grounds: 1. That the justice did not have jurisdiction of the offense.

2. That more than one offense is charged therein.

3. That the facts stated do not constitute a public offense.

N. Dak. (1895) 2 6787*.

5167. Defendant to plead anew. Procedure. If the defendant does not cbject to the complaint for any of the causes above specified, or if his