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prevented from giving a verdiet by reason of an accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause is submitted to them, the cause may be again tried. En. February 14, 1872. Am'd. 1880, 24.

Crim. Prac. Act, sec. 411. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

New trial: See post, sec. 1181.

Jeopardy: See ante, sec. 687.

§ 1142. Court may adjourn during absence, but deemed open. While the jury are absent, the court may adjourn from time to time, as to other business, but it must nevertheless be open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged. En. February 12, 1872.

Cal. Rep. Cit. 65, 621.

Crim. Prac. Act, sec. 412. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1143. Fees of jurors. Payment of same. The fees of jurors in the superior courts of the state, in criminal cases, shall be two dollars, in lawful money of the United States, for each day's attendance, and mileage, to be computed at the rate of fifteen cents per mile for each mile necessarily traveled in attending court, in going only. Such fees and mileage shall be paid by the treasurer of the county, or city and county, in which the juror's services were rendered, out of the general fund of said county, or city and county, upon warrants drawn by the county auditor upon the written order of the judge of the court in which said juror was in attendance, and the treasurer of said county, or city and county, shall pay said warants. board of supervisors of each county, or city and county, is hereby directed to make suitable appropriation for the pay

The

ment of the fees herein provided for.

En. February 14,

1872. Rep. 1880, 6. En. Stats. 1901, 290. Cal. Rep. Cit. 138, 267; 138, 269; 138, 271; 138, 273. Crim Prac. Act, sec. 413. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

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§ 1155.

Judgment on special verdict.

§ 1156.

§ 1157.

When special verdict defective, new trial to be ordered.
Jury to find degree of crime.

§ 1158.

§ 1159.

Jury may find upon charge of previous conviction.
Jury may convict of lesser offense, or of attempt.

§ 1160.

§ 1161.

Verdict as to some defendants, new trial as to others.
Court may direct a reconsideration of the verdict.
When judgment may be given on informal verdict.
Polling the jury.

§ 1162.

§ 1163.

§ 1164.

Recording the verdict.

§ 1165. Defendant, when to be discharged.

§ 1166. Proceedings upon conviction or special verdict.

§ 1167. Proceedings on acquittal on ground of insanity.

§ 1147. Return of jury. When the jury have agreed upon the verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried. En. February 14, 1872. Am'd. 1905, 697.

now no

terms of

The change consists in the omission of the words "at the same or anare because there other term," after "tried," court.-Code Commissioner's Note.

Cal. Rep. Cit. 57, 100; 62, 519; 62, 520.

Crim. Prac. Act, sec. 414. En. April 20, 1850. Rep. 1851,

290. En. 1851, 212.

Cal. Rep. Cit. 44, 541; 62, 520.

§ 1148. Appearance of defendant. If charged with a felony, the defendant must, before the verdict is received, appear in person. If for a misdemeanor, the verdict may be rendered in his absence. En. February 14, 1872. Am'd. 1880, 24.

Cal. Rep. Cit. 49, 42; 57, 352; 59, 358; 70, 472; 118, 449. Crim. Prac. Act, sec. 415. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 33, 100; 42, 168.
Judgment in defendant's presence:

See post, sec. 1193.

§ 1149. Manner of taking verdict. When the jury appear, they must be asked by the court, or clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. En. February 14, 1872.

Cal. Rep. Cit. 62, 519; 94, 119.

Crim. Prac. Act, sec. 416. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1150. Verdict may be general or special. The jury may render a general verdict, or, when they are in doubt as to the legal effect of the facts proved, they may, except upon a trial for libel, find a special verdict. En. February 14, 1872. Am'd. 1880, 24.

Crim. Prac. Act, sec. 417. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1151. General verdict. A general verdict upon a plea of not guilty is either guilty" or "not guilty,'' which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either "for the people" or "for the defendant." When the defendant is acquitted on the ground that he was insane at the time of the commission of the act charged, the verdict must be "not guilty by reason of insanity." When the defendant is acquitted on the

ground of variance between the indictment and the proof, the verdict must be "not guilty by reason of variance between indictment and proof." En. February 14, 1872. Am'd. 1873-4, 446.

Cal. Rep. Cit. 51, 279; 65, 446; 68, 181; 73, 346; 84, 473; 87, 283; 134, 308.

Crim. Prac. Act, sec. 418. En. April 20, 1850. Rep. 1851, 190. En. 1851, 212.

Cal. Rep. Cit. 31, 453; 31, 454.

§ 1152. Special verdict. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact as established by the evidence, and not the evidence to prove them, and these conclusions of fact must be so presented as that nothing remains to the court but to draw conclusions of law upon them. En. February 14, 1872.

Crim. Prac. Act, sec. 419. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 31, 453; 31, 454.

§ 1153. Special verdict, how rendered. The special verdict must be reduced to writing by the jury, or in their presence entered upon the minutes of the court, read to the jury and agreed to by them, before they are discharged. En. February 14, 1872.

Crim. Prac. Act, sec. 420. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1154. Form of special verdict. The special verdict need not be in any particular form, but is sufficient if it present intelligibly the facts found by the jury. En. February 14,

1872.

Crim. Prac. Act, sec. 421. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1155. Judgment on special verdict. The court must give judgment upon the special verdict as follows:

1. If the plea is not guilty, and the facts prove the defendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted under that indictment, judgment must be given accordingly. But if otherwise, judgment of acquittal must be given.

2. If the plea is a former conviction or acquittal of the same offense, the court must give judgment of acquittal or conviction, as the facts prove or fail to prove the former conviction or acquittal. En. February 14, 1872.

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Crim. Prac Act, sec. 422. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 31, 454.

See ante, sec. 1016, subd. 3.

§ 1156. When special verdict defective, new trial to be ordered. If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact, from the evidence, as established to their satisfaction, the court must order a new trial. En. February 14, 1872.

Crim. Prac. Act, sec. 423. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 31, 454.

New trial: See post, sec. 1181.

§ 1157. Jury to find degree of crime.

Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty. En. Febuary 14, 1872.

Cal. Rep. Cit. 49, 179; 52, 454; 53, 627; 59, 384; 60, 110; 65, 538; 67, 351; 68, 180; 73, 581; 81, 618; 94, 386; 134, 308; 135, 62.

§ 1158. Jury may find upon charge of previous conviction. Whenever the fact of a previous conviction of another offense

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