4. Prosecutions for misdemeanor, when the defendant is on bail. [In effect April 9th, 1880.]

A felony is a crime which is or may be punishable with death, or by imprisonment in the State prison-see Desty's Crim. Law, § 3, and note; see also_ante, § 17. Every other crime is a misdemeanor-see Desty's Crim. Law, § 4, and noté; see also ante, § 17.

1049. After his plea, the defendant is entitled to at least two days to prepare for trial.

CHAPTER IX.

POSTPONEMENT OF THE TRIAL.

§ 1052. Postponement, when, and how ordered.

1052. When an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day. [In effect April 9th, 1880.]

Postponement of trial.-Sickness of defendant's counsel-4 Cal. 188, or surprise at the withdrawal of a witness is a ground-4 Tex. 260; 46 Ga. 203. The surprise must be shown by affidavit, or in some other proper form-22 Cal. 348. The absence of witnesses is a ground for continuance-6 Cal. 249; 28 id. 445. A motion on this ground should distinctly state that to which they would testify-48 Cal. 63. Where there is a sufficient showing as to their materiality, and no apparent lack of diligence, the motion should be granted-46 Cal. 103; 4f fd. 461; 28 id. 447. The court will not grant the motion when the absent wit nesses are beyond its process-49 Cal. 580; 1 Const. S. C. 234; 3 Brev. 304; 2 Halst. 220; 1 Mass. 6; 8 Gratt. 695; 2 Sun. 19; and where they had made depositions before the examining court-49 Cal. 580; but seo 43 Mo. 127; nor, where the facts shown cast suspicion on the good faith of the applicant-46 Cal. 120; nor, where he is guilty of laches and delays-29 id. 562; 1 Ashm. 281; 9 Dana, 302; 12 Fla. 562; 28 Ind. 22; 12 Gratt. 564; 23 id. 930; 54 Mo. 274; 68 id. 305; 6 Rand. 673; 1 Mass. 9; 2 Va. Cas. 155; nor, of any connivance-10 Gratt. 658; nor, where the testimony sought is immaterial-43 Cal. 47; 4 id. 238; 3 Brev. 304; 17 Ga. 439; 21 Tex. 337; 45 Ill. 152; 5 Leigh, 715; nor, where the opposite party concedes the fact sought to be proved-34 Ga. 348; 60 111. 168; 33 Miss. 48; 3 Parker Cr. R. 199; but the admission of the prosecuting attorney, that the absent witness told the prosecuting witness of the fact, will not defeat the motion-54 Cal. 243; see 28 Id. 445; 1 Meigs, 195; 26 Ind. 30; 25 Tex. 464. A continuance as to one of several defendants does not involve the trials as to another-31 Ind. 262.

Affidavit.-The affidavit, on the ground of absence of witnesses, must show due diligence to procure their attendance, setting forth the facts-1 Cal. 403; 4 id. 241; 8 id. 89; 24 id. 38; 34 id. 663; 6 Pac. C. L. J. 323; 14 Bush, 106; 63 Mo. 444; as, by exhausting the process of the court, or otherwise-4 Cal. 238; 33 id. 183; 24 id. 31; and the service of the process must be described as such as would command obedience under the law-29 id. 562; and that the witnesses cannot be readily reached by attachment-47 id. 103. It should state that there is reasonable ground to believe that the delay will tend to the furtherance of justice, and that their attendance or testimony will be obtained at the time to which the trial is deferred-53 Cal. 613; 41 id. 458; 38 id. 188; 8 Gratt. 695; 15 Ga. 535; 42 Ind. 244; id. 544; 59 Mo. 418; 2 Va. Cas. 156; 68 Mo. 91; and that he cannot prove the same facts by other witnesses -47 Cal. 100; 43 id. 63; 23 id. 158; 8 id. 89; 4 id. 240. Where the affidavit contradicted his testimony taken before the grand jury, the appli cation is properly denied-53 Cal. 494. So, where the affidavit shows that the witness is a fugitive from justice, and cannot probably be produced-49 Cal. 580. See post, § 1433.

TITLE VII.

Of Proceedings after the Commencement of the Trial and before Judgment.

CHAP I. CHALLENGING THE JURY, §§ 1055-88.

II. THE TRIAL, §§ 1093-1131.

III.

CONDUCT OF THE JURY AFTER CAUSE IS SUB

MITTED TO THEM, §§ 1135-43.

IV. THE VERDICT, §§ 1147-67.

V. BILLS OF EXCEPTION, §§ 1170-6.
VI. NEW TRIALS, §§ 1179-82.

VII. ARREST OF JUDGMENT, §§ 1185-8.

CHAPTER I.

CHALLENGING THE JURY.

1055. Definition and division of challenges. § 1056. Defendants cannot sever in challenges. 1057. Panel defined.

§ 1061.

§ 1062.

1063.

§ 1064.

§ 1065.

§ 1066.

§ 1067.

Exception, if sufficiency of the challenge be denied.
If exception overruled, court may allow denial, etc.
Denial of challenge, how made, and trial thereof.
Challenge for bias in suminoning officer.
Proceedings, if challenge allowed.

Defendant to be informed of his right to challenge.
Kinds of challenges to individual juror.

$ 1068. Challenge, when taken.

§ 1069. Peremptory challenge, what, and how taken. S1070. Number of peremptory challenges.

§ 1071.

§ 1072.

Definition and kinds of challenge, for cause.
General causes of challenge.

§ 1073.

Particular cause of challenge.

§ 1074.

Ground of challenge for actual bias.

$1075. Exemption not a ground of challenge.

§ 1076. Causes of challenge, how stated.

§ 1077. Exceptions to challenge and denial thereof.

§ 1078. Challenge, how tried.

$ 1079.

Triers, how appointed. Majority may decide. [Repealed.]

. 1080. Oath of triers. [Repealed.]

§ 1081.

Juror challenged inay be examined as a witness. 1082. Rules of evidence on trial of challenge.

§ 1083.

Decision of court to be entered.

§ 1084. Instructions on trial for actual bias. [Repealed.]
$1085. Verdict of triers, and its effect. [Repealed.]
§ 1086. Challenges, first by the defendant.

1087. Order of challenges.

1088. Peremptory challenges, when may be taken.

155. A challenge is an objection made to the trial jurors, and is of two kinds:

PEN. CODE.-35.

1. To the panel.

2. To an individual juror.

Challenges. The court may, of its own motion, for any good reason, excuse a qualified juror-32 Cal. 43; see 2 Mason, 91; 10 Gratt. 767; 20 Ga. 164; 2 Dev. & B. 221. The rejection of a juror by the court does not prejudice the defendant, and is not matter available in error -32 Cal. 46; 17 id. 80; 7 id. 140; 4 Gray, 19.

1056. When several defendants are tried together, they cannot sever their challenges, but must join therein. Severing challenges.-Where defendants elect to be tried jointly they cannot sever their challenges-8 Cal. 301; 26 Ala. 107; 10 Ohio, 232; 10 R. I. 159.

1057. The panel is a list of jurors returned by a sheriff to serve at a particular court, or for the trial of a particular action.

1058. A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party.

1059. A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.

Challenge to the panel.-A challenge to the panel is based on the partiality, or bias, or default of the officer making the return of the venire-49 Cal. 178; 1 Manu. (Mich.) 451; I Leach, 101; or if the statute requirements are not complied with-20 La. An. 356; 13 Minn. 341. It will not lie on the ground that the jury was summoned after commencement of the term-10 Cal. 59. That all persons of a particular fraternity have been excluded, is no ground of challenge, if those returned possess the requisite qualifications-3 Wend. 314. It must be taken before plea-8 Barn. & C. 417; 2 Moody & R. 406.

1060. 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 constituting the ground of challenge.

1061. If the sufficiency of the facts alleged as ground of the challenge is denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered 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.