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-47 Cal. 134; 24 id. 230; 40 Conn. 136; 1 Curt. 8; 39 Conn. 591; 4 Denio, 29; 3 Ga. 310; 31 id. 424; 42 id. 9; 45 id. 58; id. 190; id. 280; 4 Greene, Iowa, 500; 6 McLean, 121; 7 Met. 500; 57 Me. 574; 11 Gray, 303; 5 N. H. 369; 2 Barb. 566; 52 N. Y. 467; 4 Pa. St. 264; 78 id. 122; 2 Parker Cr. R. 43; 1 Baxt. 178; 1 Zab. 196; Wright, 392; 2 Va. Cas. 132. See Desty's Crim. Law, § 23 b.

1368. When an action is called for trial, or at any time during the trial, or when the defendant is brought up for judgment on conviction, if a doubt arise as to the sanity of the defendant, the court must order the question as to his sanity to be submitted to a jury; and the trial or the pronouncing of the judgment must be suspended until the question is determined by their verdict, and the trial jury may be discharged or retained, according to the discretion of the court, during the pendency of the issue of insanity. [In effect April 9th, 1880.]

Proof of insanity.-As often as any doubt of the sanity of the defendant arises the same proceedings may be had-31 Cal. 579; 15 id. 329. Counsel cannot waive an inquiry as to the question of the sanity of defendant, nor can he compel the court to enter upon the inquiry where no ground for doubt arises-42 Cal. 21. No plea of present insanity is required if during the proceedings a doubt arises. It is then the duty of the court of its own motion to suspend further prosecution until the question of sanity has been determined-42 Cal. 21. The burden of proof is on the prisoner-49 Cal. 488; 47 id. 136; 20 id. 519.

Insanity must be proved as a substantive fact by the party alleging it-20 Cal. 518; 4 Cranch C. C. 514; 1 Curt. 1; 7 Gray, 583; 1 Zab. 202; 8 Jones, (N. C.) 463; 1 Strob. 479; 5 Ala. 241; 20 Gratt. 860; 10 Ohio St. 598; and must be clearly established by satisfactory evidence-47 Cal. 136. The jury are to be governed by the preponderance of evidence, and are not to require it to be made out beyond a reasonable doubt-24 Cal. 230; 49 id. 14; id. 488; 6 id. 410; 5 id. 129; 20 id. 519; 7 Gray, 583; 7 Met. 500; 10 Ohio St. 598; 57 Me. 574; 11 Gray, 303; 16 N. Y. 58; 35 id. 125; 32 id. 147; 77 Pa. St. 205; 76id. 414; 26 Ark. 334; 32 Iowa, 49; 6 Jones, (N. C.) 366; 8id. 463; 10 Ohio St. 598; 31 id. 111; see 1 Brewst. 356; 83 Pa. St. 131; 84 id. 200.

It is not improper to caution the jury to be careful that no pretended case of insanity should be allowed to shield the defendant from the ordinary consequences of his act-45 Cal. 652.

1369. The trial of the question of insanity must proceed in the following order:

1. The counsel for the defendant must open the case, and offer evidence in support of the allegation of insanity. 2. The counsel for the people may then open their case, and offer evidence in support thereof.

3. The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in fur

therance of justice, permit them to offer evidence upon their original cause.

4. When the evidence is concluded, unless the case is submitted to the jury on either or both sides without argument, the counsel for the people must commence, and the defendant or his counsel may conclude the argument to the jury.

5. If the indictment be for an offense punishable with death, two counsel on each side may argue the cause to the jury, in which case they must do so alternately. In other cases, the argument may be restricted to one counsel on each side.

6. The court must then charge the jury, stating to them all matters of law necessary for their information in giving their verdict.

1370. If the jury find the defendant sane, the trial must proceed, or judgment be pronounced, as the case may be. If the jury find the defendant insane, the trial or judgment must be suspended until he becomes sane, and the court must order that he be in the meantime committed by the sheriff to the State insane asylum, and that upon his becoming sane he be redelivered to the sheriff. [In effect April 9th, 1880.]

1371. The commitment of the defendant, as mentioned in the last section, exonerates his bail, or entitles a person, authorized to receive the property of the defendant, to a return of any money he may have deposited instead of bail.

1372. If the defendant is received into the asylum, he must be detained there until he becomes sane. When he becomes sane, the superintendent must give notice of that fact to the sheriff and district attorney of the county. The sheriff must thereupon, without delay, bring the defendant from the asylum, and place him in proper custody until he is brought to trial or judgment, as the case may be, or is legally discharged.

1373. The expenses of sending the defendant to the asylum, of keeping him there, and of bringing him back, are in the first instance chargeable to the county in which the indictment was found, or information filed; but the county may recover them from the estate of the defendant, if he have any, or from a relative, town, city, or county bound to provide for and maintain him elsewhere. [In effect April 9th, 1880.]

PEN. CODE.-47.

CHAPTER VII.

COMPROMISING CERTAIN PUBLIC OFFENSES BY LEAVE OF THE COURT.

§ 1377. Compromise of offenses for which civil action may be had. § 1378. Compromise by permission of the court bars another pros ecution.

§ 1379. No public offense to be compromised except.

1377. When a defendant is held to answer on a charge of misdemeanor, for which the person injured by the act constituting the offense has a remedy by civil action, the offense may be compromised as provided in the next section, except when it is committed:

1. By or upon an officer of justice, while in the execution of the duties of his office.

2. Riotously.

3. With an intent to commit a felony.

Where an offense is a personal tort, and there is no attempt to suppress the prosecution, it may be compromised-50 Ga. 155. The bare taking of one's goods back again or receiving reparation is no offense -5 N. H. 553. Where money is paid for the purpose of reimbursing for expenses, as, for search of stolen property-16 Îll. 94; 51 id. 234; or, for the purpose of settling the matter, there being no prosecution set on foot, and no agreement not to prosecute, is not compounding the offense-9 Wis. 476.

1378. If the party injured appears before the court to which the depositions are required to be returned, at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom; but in such case the reasons for the order must be set forth therein, and entered on the minutes. The order is a bar to another prosecution for the same offense.

The consent of the court cannot make an agreement to abandon a prosecution valid, if it would be otherwise unlawful-6 Q. B. 308; S. C. 2 Lead. C. C. 216.

1379. No public offense can be compromised, nor can any proceeding or prosecution for the punishment thereof upon a compromise be stayed, except as provided in this chapter.

There can be no compromise of a criminal charge where the party is arrested, or in any way held to answer-6 Oreg. 303; and neither an officer or a witness possesses the power to compromise a felony -1 Wyo. 277. An offense which, in the discretion of the court, inay be punished by imprisonment in the penitentiary cannot be comproimised-39 Ga. 85. See Desty's Crim. Law, §§ 10, 71 d.

CHAPTER VIII.

DISMISSAL OF THE ACTION BEFORE OR AFTER INDICTMENT

FOR WANT OF PROSECUTION OR OTHERWISE.

§ 1382. When action may be dismissed.

1383. Continuance and discharge from custody.

§ 1384.

If action dismissed, defendant to be discharged, etc.

§ 1385. Dismissed on motion of court or application of district at

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§ 1387. Dismissal a bar in misdemeanor, but not in felony. 1388. 1389.

1382. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases:

1. Where a person has been held to answer for a public offense, if an indictment is not found or an information filed against him, within thirty days thereafter.

2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment, or filing of the information. [In effect April 9th, 1880.]

Dismissal.-The dismissal is in the nature of a nonsuit-54 Cal. 413 Upon such dismissal the power of the court to resubmit ceases-54 Cal. 413, explaining 52 id. 463. An application for dismissal must be made, in the first place, to the court where the prosecution is pending-54 Cal. 101. When the grand jury has dismissed a charge, the court inay dismiss the action and discharge defendant from custody, and dis charge the sureties from the bond, unless it has reason to believe the grand jury, at a succeeding terin, inay properly indict him-54 Cal. 413. Bee ante, § 941.

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