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.

§ 1034. Application for removal, how made. The application 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 attor ney at least one day prior to the hearing of the applica

Pen. Code-24

tion. At the hearing the district attorney may serve and file such counter affidavits as he may deem advisable. Whenever the affidavit of the defendant shows that he cannot safely appear in person to make such application because popular prejudice is so great as to endanger his personal safety, and such statement is sustained by other testimony, such application may be made by his attorney, and must be heard and determined in the absence of the defendant, notwithstanding the charge then pending against him be a felony, and he has not at the time of such application been arrested or given bail, or been arraigned, or pleaded or demurred to the indictment or information. En. Feb. 14, 1872. Am'd. 1887, 61; 1905, 695.

"

The design of the amendment is to conform this section to the amendment to the last section. The change consists in the insertion of the words "for removal,' after "application"; in the omission of the words "or of the district attorney, as the case may be," after "defendant"; in the insertion of the word "district,' after "the"; in the omission of the words "of the adverse party," after "attorney”; and in the insertion after "application," of the sentence "At the hearing the district attorney may serve and file such counter affidavits as he may deem advisable."-Code Commissioner's Note.

Cal. Rep. Cit. 56, 329; 65, 147.

Crim. Prac. Act, sec. 313. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1857, 71.

§ 1035. Application, when granted. If the court be satisfied that the representations of the applicant are true, an order must be made transferring the action to the proper court of some convenient county, free from a like objection. En. February 14, 1872. Am'd. 1887, 62.

Cal. Rep. Cit. 65, 147; 80; 298.

Crim. Prac. Act, sec. 314. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1863, 160.

§ 1036. Order of removal. The order of removal must be entered upon the minutes, and the clerk must immediately make out and transmit to the court to which the action is removed a certified copy of the order of removal, record, pleadings, and proceedings in the action, including the undertakings for the appearance of the defendant and of the witnesses. En. February 14, 1872.

Cal. Rep. Cit. 71, 605; 142, 357.

Crim. Prac. Act, sec. 315. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1037. Proceedings on removal, if defendant is in custody. If the defendant is in custody, the order must direct his removal, and he must be forthwith removed by the sheriff of the county where he is imprisoned, to the custody of the sheriff of the county to which the action is removed. En. February 14, 1872.

Crim. Prac. Act, sec. 316. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1038. Proceedings on removal. Transmission of papers. The court to which the action is removed must proceed to trial and judgment therein as if the action had been commenced in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action is removed must at any time, upon application of the district attorney or the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained. En. February 14, 1872.

Cal. Rep. Cit. 142, 357.

Crim. Prac. Act, sec. 317. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Costs on removal of criminal action chargeable against what county: See Pol. Code, sec. 4345.

CHAPTER VII.

THE MODE OF TRIAL.

1041. Issue of fact defined.

1042. How tried.

1043. When presence of defendant is necessary on the trial.

§ 1041. Issue of fact defined. An issue of fact arises: 1. Upon a plea of not guilty.

2. Upon a plea of a former conviction or acquittal of the same offense.

3. Upon a plea of once in jeopardy. En. February 14, 1872. Am'd. 1880, 45.

Crim. Prac. Act, sec. 318. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1042. How tried. Issues of fact must be tried by jury, unless a trial by jury be waived in criminal cases

not amounting to felony, by the consent of both parties expressed in open court and entered in its minutes. In cases of misdemeanor the jury may consist of twelve, or any number less than twelve upon which the parties may agree in open court. En. February 14, 1872. Am'd. 1880, 5. Cal. Rep. Cit. 92, 575; 92, 576.

Crim. Prac. Act, sec. 319. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

In cases of misdemeanor, the jury may consist of twelve, or of any number less than twelve upon which the parties may agree in open court: Const. 1879, art I, sec. 7.

Issue of fact defined: Code Civ. Proc., sec. 590.

§ 1043. When presence of defendant is necessary on the trial. If the prosecution be for a felony, the defendant must be personally present at the trial; but if for misdemeanor, the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the district attorney, by an order or warrant, require the personal attendance of the defendant at the trial. En. February 14, 1872. Am'd. 1880, 19.

Cal. Rep. Cit. 57, 351; 59, 358; 68, 634; 118, 448.

Crim. Prac. Act, sec. 230. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1863, 160.

Cal. Rep. Cit. 17, 400; 42, 168.

CHAPTER VIII.

FORMATION OF THE TRIAL JURY AND THE CALENDAR OF ISSUES FOR TRIAL.

§ 1046. Formation of trial jury.

1047. Clerk to prepare a calendar.

§ 1048. Order of disposing of issues on the calendar.

1049. Defendant entitled to two days to prepare for trial.

§ 1046. Formation of trial jury. Trial juries for criminal actions are formed in the same manner as trial juries in civil actions. En. February 14, 1872.

Cal. Rep. Cit. 119, 622.

Crim. Prac. Act, sec. 321. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 37, 678; 37, 679; 37, 688; 37, 696; 144, 756. Impaneling trial juries: Code Civ. Proc., secs. 246, 247. Formation of jury: Code Civ. Proc., secs. 600-604.

Qualifications and exemptions of jurors: Code Civ. Proc., secs. 198-202.

§ 1047. Clerk to prepare a calendar. The clerk must keep a calendar of all criminal actions pending in the court, enumerating them according to the date of the 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. En. February 14, 1872. Am'd. 1880, 20.

Cal. Rep. Cit. 105, 512.

Crim Prac, Act, sec. 322. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1048. Order of disposing of issues on the calendar. The issues on the calendar must be disposed of in the following order, unless for good cause the court shall direct an action to be tried out of its order:

1. Prosecutions for felony, when the defendant is in custody.

2. Prosecutions for misdemeanor when the defendant is in custody.

3. Prosecutions for felony, when the defendant is on bail.

4. Prosecutions for misdemeanor, when the defendant is on bail. En. February 14, 1872. Am'd. 1873-4, 440; 1880, 20. Crim Prac. Act, sec. 323. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1049. Defendant entitled to two days to prepare for trial. After his plea, the defendant is entitled to at least two days to prepare for trial. En. February 14, 1872.

Crim. Prac. Act, sec. 324. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

CHAPTER IX.

POSTPONEMENT OF THE TRIAL.

§ 1052. Postponement, when and how ordered.

When

§ 1052. Postponement, when and how ordered. an action is called for trial, or at any time previous there