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is charged in an indictment or information, the jury, if they find a verdict of guilty of the offense with which he is charged, must also, unless the answer of the defendant admits the charge, find whether or not he has suffered such previous conviction. The verdict of the jury upon a charge of previous conviction may be: "We find the charge of previous conviction true," or, "We find the charge of previous conviction not true," as they find that the defendant has or has not suffered such conviction. En. February 14, 1872. Am'd. 1873-4, 446; 1880, 24.

Cal. Rep. Cit. 49, 395; 57, 560; 57, 572; 64, 155; 64, 340;

64, 403; 65, 297; 65, 398; 73, 445; 73, 446; 73, 447; 73, 450; 73, 451; 73, 452; 73, 549; 73, 550; 109, 297; 110, 42; 118, 389; 118, 390; 145, 610; 145, 611.

See ante, sec. 1155.

§ 1159. Jury may convict of lesser offense, or of attempt. The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. En. February 14, 1872. Am'd. 1880, 24.

Cal. Rep. Cit. 53, 59; 56, 80; 59, 364; 65, 475; 76, 58; 91, 272; 93, 659; 99, 229; 100, 153; 100, 154; 100, 158; 105, 672; 115, 305; 135, 62; 135, 270; 136, 524; 137, 197; 138, 484; 143, 13; 143, 14; 143, 149; 143, 435; 144, 47.

Crim. Prac. Act, sec. 424. En. April 20, 1850. Rep. 1851, En. 1851, 212.

290.

Cal. Rep. Cit. 5, 134; 29, 628; 31, 454.

Lesser offense: See ante, sec. 1155.

§ 1160. Verdict as to some defendants, new trial as to others. On an indictment or information against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the

case as to the others may be tried by another jury. En. February 14, 1872. Am'd. 1880, 25.

Cal. Rep. Cit. 67, 413.

Crim. Prac. Act, sec. 425. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1161. Court may airect a reconsideration of the verdict. When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the court cannot require the jury to reconsider it. If the jury render a verdict which is neither general nor special, the court may direct them to reconsider it, and it cannot be recorded until it is rendered in some form from which it can be clearly understood that the intent of the jury is either to render a general verdict or to find the facts specially and to leave the judgment to the court. En. February 14, 1872. Cal. Rep. Cit. 48, 559; Crim. Prac. Act, sec. 426.

290. En. 1851, 212.

68,

180; 68, 181;

118, 448.

En. April 20, 1850. Rep. 1851,

Crim. Prac. Act, sec. 427.. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 31, 454.

§ 1162. When judgment may be given on informal verdict. If the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant upon the issue, or judgment is given against him on a special verdict. En. February 14, 1872.

Cal. Rep. Cit. 68, 180; 135, 62; 135, 63.

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§ 1163.

En. April 20, 1850. Rep. 1851,

Polling the jury. When a verdict is rendered, and before it is recorded, the jury may be polled at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation. En. February 14, 1872.

Cal Rep. Cit. 57, 101; 62, 520.

Crim. Prac. Act, sec. 429. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1164. Recording the verdict.

When the verdict given

is such as the court may receive, the clerk must immediately record it in full upon the minutes, read it to the jury, and inquire of them whether it is their verdict. If any jurer disagree, the fact must be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case. En. February 14, 1872.

Cal. Rep. Cit. 57, 98; 57, 101.

Crim. Prac. Act, sec. 430. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1165. Defendant, when to be discharged. If judgment of acquittal is given on a general verdict, and the defendant is not detained for any other legal cause, he must be discharged as soon as the judgment is given, except where the acquittal is because of a variance between the pleading and proof, which may be obviated by a new indictment or information, the court may order his detention, to the end that a new indictment or information may be preferred, in the same manner and with like effect as provided in section one thousand one hundred and seventeen. En. February 14, 1872.

Am'd. 1880, 25.

Cal. Rep. Cit. 61, 140; 64, 263; 70, 65; 79, 179; 79, 181: 91, 643; 118, 27.

Crim. Prac. Act, sec. 431. En. April 20, 1850. Rep. 1851, En. 1851, 212.

290.

Cal. Rep. Cit. 38, 476.

Jeopardy: See ante, sec. 687.

§ 1166. Proceedings upon conviction or special verdict. If a general verdict is rendered against the defendant, or a special verdict is given, he must be remanded, if in custody, or if on bail he may be committed to the proper officer of the county to await the judgment of the court upon the verdict. When committed, his bail is exonerated, or if money is deposited instead of bail, it must be refunded to the defendant. En. February 14, 1872.

Cal. Rep. Cit. 68, 182.

Crim. Prac. Act, sec. 432. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Bail: See post, secs. 1268 et seq.

§ 1167. Proceedings on acquittal on ground of insanity. If the jury render a verdict of acquittal on the ground of insanity, the court may order a jury to be summoned from the jury list of the county, to inquire whether the defendant continues to be insane. The court may cause the same witnesses to be summoned who testified on the trial, and other witnesses, and direct the district attorney to conduct the proceedings, and counsel may appear for the defendant. court may direct the sheriff to take the defendant and retain him in custody until the question of continuing insanity is determined. If the jury find the defendant insane, he shall be committed by the sheriff to the state insane asylum. If the jury find the defendant sane, he shall be discharged. En. Stats. 1873-4, 446.

The

Inquiry into insanity of defendant before trial or after conviction. See post, secs. 1367 et seq.

CHAPTER V.

BILLS OF EXCEPTION.

1170. To what decisions exceptions may be taken.

1171. When to be settled and signed.

1172. Exceptions to decision of court by either party.

1173. Exceptions to decision of the court by the defendant.

1174.

1175.

§ 1176.

Exceptions, how settled.

What bill of exceptions is to contain.

Written charges need not be excepted to.

§ 1177. Bills of exception in criminal actions, amendment of; settled and time fixed for engrossment.

§ 1170. To what decisions exceptions may be taken. On the trial of an indictment or information, exceptions may be taken by the defendant to a decision of the court;

1. In disallowing a challenge to the panel of the jury, or to an individual juror for implied or actual bias;

2. In admitting or rejecting testimony on the trial of a challenge to a juror for actual bias;

3. In admitting or rejecting testimony, or in deciding any question of law not a matter of discretion, or in charging or instructing the jury upon the law on the trial of the issue. En. February 14, 1872. Am'd. 1873-4, 447; 1880, 25; 1901, 81.

Cal. Rep. Cit. 49, 169; 51, 470; 51, 496; 53, 184; 53, 603; 56, 535; 59, 355; 61, 549; 61, 553; 70, 11; 83, 381; 87, 120; 96, 126; 96, 134; 96, 137; 96, 140; 115, 167; 123, 491; 124, 553; 132, 142; 134, 535; 135, 373; 135, 375; 142, 93.

738.

Subd. 2-123, 488. Subd. 3-134, 544; 135, 374; 145,

Crim. Prac. Act, sec. 433. En. April 20, 1850. 290. En. 1851, 212.

Cal. Rep. Cit. 28, 218; 45, 142.

Challenges to jury: See ante, secs. 1055 et seq.
Trial of challenges: See ante, secs. 1078 et seq.
Rules of evidence: See ante, sec. 1102.

Rep. 1851,

§ 1171. When to be settled and signed. When the defendant desires to have exceptions taken at the trial settled in a bill of exceptions, the draft of a bill must be prepared by him, and presented to the judge for settlement within ten

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