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 The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted. En. February 14, 1872. Am'd. 1880, 19. Cal. Rep. Cit. 82, 618; 82, 290. En. 1851, 212. Cal. Rep. Cit. 4, 242. 619; 114, 16. En. April 20, 1850. Rep. 1851, Crim. Prac. Act, sec. 302. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1019. What plea of not guilty puts in issue. The plea of not guilty puts in issue every material allegation of the indictment or information. En. February 14, 1872. Am'd. 1880, 19. Cal. Rep. Cit. 60, 86; 88, 117. Crim. Prac. Act, sec. 303. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 43, 152. § 1020. What may be given in evidence under plea of not guilty. All matters of fact tending to establish a defense, other than one specified in the third and fourth subdivision of section one thousand and sixteen, may be given in evidence under the plea of not guilty. En. February 14, 1872. Am'd. 1880, 44; 1905, 773. Cal. Rep. Cit. 48, 329; 60, 86; 114, 59; 146, 311; 146, 314; 140, 315. Crim. Prac. Act, sec. 304. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1021. What is not a former acquittal. If the defendant was formerly acquitted on the ground of variance between the indictment or information and the proof, or the indictment or information was dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense. En. February 14, 1872. Am'd. 1880, 19. Cal. Rep. Cit. 70, 65; 79, 179; 79, 181; 132, 500; 133, 129. Crim. Prac. Act, sec. 305. 290. En. 1851, 212. Cal. Rep. Cit. 41, 236. En. April 20, 1850. Rep. 1851, § 1022. What is a former acquittal. Whenever the defendant is acquitted on the merits, he is acquitted of the same offense, notwithstanding any defect in form or substance in the indictment or information on which the trial was had. En. February 14, 1872. Am'd. 1880, 19. Crim. Prac. Act, sec. 306. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1023. Conviction or acquittal for a higher offense, effect of. 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 indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information. En. February 14, 1872. Am'd. 1880, 45. Cal. Rep. Cit. 99, 231; 132, 500; 133, 129; 138, 484. Crim Prac. Act, sec. 307. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. See ante, sec. 1016, subd. 3. § 1024. Defendant refusing to answer, plea of not guilty. If the defendant refuses to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered. En. February 14, 1872. Am'd. 1880, 19. Cal. Rep. Cit. 71, 396. Crim. Prac. Act, sec. 308. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 28, 269. 1025. Previous conviction. When a defendant who is charged in the indictment or information with having suffered a previous conviction, pleads either guilty or not guilty of the offense for which he is indicted or informed against, he must be asked whether he has suffered such previous conviction. If he answers that he has, his answer must be entered by the clerk in the minutes of the court, and must, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings. If he answers that he has not, his answer must be entered by the clerk in the minutes of the court, and the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty, or in case of a plea of guilty, by a jury impaneled for that purpose. The refusal of the defendant to answer is equivalent to a denial that he has suffered such previous conviction. In case the defendant pleads not guilty, and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, or alluded to on the trial. En. Stats. 1873-4, 439. Rep. 1880, 19. En. 1905, 773. This is the section as it existed prior to its repeal in 1880. By such repeal no provision was left for any plea to a charge of former conviction, and it is believed this should be provided for in the Code.Code Commissioner's Note. Cal. Rep. Cit. 57, 561; 57, 572; 64, 339; 64, 340; 64, 341; 65, 298; 73, 443; 73, 444; 73, 445; 73, 446; 73, 447; 73, 450; 73, 451; 88, 118; 142, 13. CHAPTER V. TRANSMISSION OF CERTAIN INDICTMENTS FROM THE COUNTY COURT TO THE DISTRICT COURT, OR MUNICIPAL CRIMINAL COURT OF SAN FRANCISCO. § 1028. Transmission of indictments from the county to district courts. (Repealed.) § 1029. Indictments against a superior judge. § 1030. Indictments transmitted to municipal criminal court. (Repealed.) § 1028. Transmission of indictments from the county to district courts. (Repealed.) En. February 14, 1872. Am'd. 1873-4, 440. Rep. 1880, 6. Cal. Rep. Cit. 51, 601. Crim. Prac. Act, sec. 309. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1860, 31; 1863, 160. Cal. Rep. Cit. 4, 241. § 1029. Indictments against a superior judge. When an indictment is found, or an information filed in a superior court against a judge thereof, a certificate of that fact must be transmitted by the clerk to the governor, who shall thereupon designate and direct a judge of the superior court of another county to preside at the trial of such indictment or information, and hear and determine all pleas and motions affecting the defendant thereunder before and after judgment. En. February 14, 1872. Am'd. 1873-4, 440; 1880, 6. Cal. Rep. Cit. 81, 569. Crim. Prac. Act, sec. 310. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1863, 160. § 1030. Indictments transmitted to municipal criminal court. (Repealed.) En. February 14, 1872. Rep. 1880, 6. CHAPTER VI. REMOVAL OF THE ACTION BEFORE TRIAL 1033. When action may be removed. § 1034. Application for removal, how made. 1035. Application, when granted. § 1036. Order of removal. 1037. Proceedings on removal, if defendant is in custody. 1038. Proceedings on removal. Transmission of papers. § 1033. When action may be removed. A criminal action may be removed from the court in which it is pending on application of the defendant, on the ground that a fair and impartial trial cannot be had in the county. En. February 14, 1872. Am'd. 1880, 19; 1887, 61; 1905, 695. The change consists in the omission of the word "first," after "pending," and of the words "where the action is pending. Second-On the application of the district attorney on the ground that from any cause no jury can be obtained for the trial of the defendant in the county where the action is pending," after "county,' the provision relative to a change of the place of trial in a criminal action on application of the distrct attorney having been held unconstitutional in People v. Powell, 87 Cal. 348.-Code Commissioner's Note. Cal. Rep. Cit. 56, 328; 56, 329; 56, 330; 65, 147; 80, 298; 87, 350; 87, 354; 87, 361; 87, 366; 132, 632. Crim. Prac. Act, sec. 312. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Change of venue in criminal cases. Section 397 of the Code of Civil Procedure, providing for the change of the place of trial in civil actions, has no application to criminal cases. The only provisions of law providing for a removal of such eases from one county to another for trial are found in the Penal Code, sections 1033-1038, inclusive. The appli § 1034. Application for removal, how made. cation for removal must be made in open court, and in writing, verified by the affidavit of the defendant, a copy of which application must be served upon the district attorney at least one day prior to the hearing of the applica Pen. Code-24 |