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he plead guilty or refuse to plead, the senate shall render judgment of conviction. against him. If he deny the matters charged, the senate shall, at such time as they may appoint, proceed to try the impeachment.
Sec. 60. At the time and place appointed, and before the senate proceed to act on the impeachment, the secretary shall administer to the president of the senate, and the president of the senate to each of the members of the senate then present, an oath or affirmation truly and impartially to hear, try and determine the impeachment, and no member of the senate shall act or vote upon the impeachment, or any question arising thereon, without having taken such oath or affirmation.
Sec. 61. The oath or affirmation having been administered, the senate shall proceed to try and determine the impeachment, and may adjourn the trial from time to time.
ART. 1420, Sec. 62. The defendant cannot be convicted on impeachment without the concurrence of two-thirds of the members present; and if two-thirds of the members present do not concur in a conviction he shall be declared acquitted. ART. 1421, Sec. 63. After conviction the senate shall immediately, or at such other time as they shall appoint, pronounce judgment, which shall be in the form of a resolution entered upon the journals of the senate. The vote upon the passage thereof shall be taken by yeas and nays, and shall in like manner be entered upon the journal.
Sec. 64. On the adoption of the resolution by a majority of the members present who voted on the question of acquittal or conviction, the same shall be the judgment of the senate.
Sec. 65. The judgment may be that the defendant be suspended and removed from office, or that he be removed from office and disqualified to hold and enjoy a particular office or class of offices, or any office of honor, trust, or profit, under this state.
Sec. 66. If judgment of suspension be given, the defendant shall, during the continuance thereof, be disqualified from receiving the salary, fees, or emoluments of the office.
ART. 1422, Sec. 67. Whenever articles of impeachment against any officer subject to impeachment shall be presented to the president of the senate, such officer shall be temporarily suspended from his office, and shall not act in his official capacity until duly acquitted. Upon such suspension of any officer other than the governor, the governor shall immediately take charge of his office, and such office shall at once be temporarily filled by appointment by the governor, by and with the advice and consent of the senate, until the acquittal of the party impeached; or in case of his removal, then until the vacancy be filled at the next general election, as required by law.-[Am. Feb. 10, 1857; R. S. St. 1851, 219; C. L. 432.
ART. 1423, Sec. 68. If the lieutenant-governor be impeached, notice of the impeachment shall be immediately given to the senate by the assembly, that another president may be chosen.
Sec. 69. If the offense for which the defendant is impeached be the subject of an indictment, the indictment shall not be barred by the impeachment.
ART. 1424, Sec. 70. An accusation in writing against any district, county, or township officer for willful or corrupt misconduct in office, may be presented by the grand jury of the county for which the officer accused is elected or appointed.
Sec. 71. The accusation shall state the offense charged in ordinary and concise language and without repetition.
Sec. 72. The accusation shall he delivered by the foreman of the grand jury to the district attorney of the county, who shall cause a copy thereof to be served upon the defendant, and require by notice in writing of not less than ten days.
that he appear before the district court of the county at the next term, and answer the accusation. The original accusation shall then be filed with the clerk of the district court.
Sec. 73. The defendant must appear at the time appointed in the notice, and answer the accusation, unless for some sufficient cause the court assign another day for that purpose. If he do not appear, the court may proceed to hear and determine the accusation in his absence.
Sec. 74. The defendant may answer the accusation, either by objecting to the sufficiency thereof, or of any article therein, or by denying the truth of the same. Sec. 75. If he object to the legal sufficiency of the accusation, the objection must be in writing, but need not be in any specific form, it being sufficient if it present intelligibly the grounds of the objection.
Sec. 76. If he deny the truth of the accusation, the denial may be oral and without oath, and shall be entered upon the minutes.
Sec. 77. If an objection to the sufficiency of the accusation be not sustained, the defendant shall be required to answer the accusation forthwith.
Sec. 78. If the defendant plead guilty, or refuse to answer the accusation, the court shall render judgment of conviction against him. If he deny the matters charged, the court shall immediately, or at such time as they may appoint, proceed to try the accusation.
ART. 1425, Sec. 79. The trial shall be by a jury and shall be conducted in all respects in the same manner as the trial of an indictment for a misdemeanor.
Sec. 80. The district attorney and the defendant shall be respectively entitled to such process as may be necessary to enforce the attendance of witnesses as upon the trial of an indictment.
ART. 1426, Sec. 81. Upon a conviction the court shall immediately, or at such other time as they may appoint, pronounce judgment that the defendant be removed [from] office. But to warrant a removal, the judgment must be entered upon the minutes assigning therein the causes of removal.
ART. 1427, Sec. 82. From a judgment of removal an appeal may be taken to the supreme court in the same manner as from a judgment in a civil action, but until such judgment be reversed the defendant shall be suspended from his office. Pending the appeal the office may be filled as in case of vacancy.
ART. 1428, Sec. 83. The same proceedings may be had on like grounds for the removal of a district attorney, except that the accusation shall be delivered to the district judge of the district, who shall thereupon appoint some one to act as prosecuting officer in the matter, or shall place the accusation in the hands of the district attorney of an adjoining county, and require him to conduct the proceedings.
IV. PROCEEDINGS IN CRIMINAL ACTIONS PROSECUTED BY INDICTMENT.
1. Local Jurisdiction of Public Offenses.
ART. 1429, Sec. 84. Every person, whether an inhabitant of this or any other state or country, or of a territory or district of the United States, shall be liable to punishment by the laws of this state for a public offense committed by him therein, except where it is by law cognizable exclusively in the courts of the Uni
ART. 1430, Sec. 85. When the commission of a public offense commenced without the state, is consummated within the boundaries thereof, the defendant shall be liable to punishment therefor in this state, though he were without the state at the time of the commission of the offense charged; provided, he consummated the offense through the intervention of an innocent or guilty agent without this state, or any other means proceeding directly from himself, and in such case the jurisdiction shall be in the county in which the offense is consummated.
ART. 1431, Sec. 86. When an inhabitant or resident of this state shall, by any
previous appointment or engagement, fight a duel or be concerned as a second therein without the jurisdiction of this state, and in such duel a wound shall be inflicted upon any person whereof he shall die within this state, the jurisdiction of the offense shall be in the county where the death shall happen.
ART. 1432, Sec. 87. When a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction shall be in either county.
ART. 1433, Sec. 88. When a public offense is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction shall be within either county.
ART. 1434, Sec. 89. When an offense is committed within this state on board a vessel navigating a river, bay or slue, or lying therein in the prosecution of her voyage, the jurisdiction shall be in any county through which the vessel is navigated in the course of her voyage, or in the county where the voyage shall terminate.
ART. 1435, Sec. 90. The jurisdiction of an indictment for the crime of forcibly stealing, taking or arresting any man, woman or child in this state, and carrying him or her into another county, state or territory, or for forcibly taking or arresting any person or persons whomsoever, with a design to take him or her out of this state, without having established a claim according to the laws of the United States, or for hiring, persuading, enticing, decoying or seducing by false promises, misrepresentations and the like, any negro, mulatto or colored person to go out of this state, or to be taken or removed therefrom for the purpose and with the intent to sell such negro, mulatto or colored person into slavery or involuntary servitude, or otherwise to employ him or her for his or her own use, or to the use of another, without the free will and consent of such negro, mulatto or colored person, shall be, in any county in which the offense is committed, or into or out of which the person upon whom the offense was committed may in the prosecution of the offense have been brought, or in which an act shall be done by the offender in instigating, procuring, promoting, aiding in or being accessory to the commission of the offense, or in abetting the parties therein concerned.
ART. 1436, Sec. 91. When the offense either of bigamy or incest is committed in one county and the defendant is apprehended in another, the jurisdiction shall be in either county.
ART. 1437, Sec. 92. When property feloniously taken in one county by burglary, robbery, larceny or embezzlement, has been brought into another, the jurisdiction of the offense shall be in either county. But if at any time before the conviction of the defendant in the latter he be indicted in the former county, the sheriff of the latter county shall, upon demand, deliver him to the sheriff of the former county, upon being served with a copy of the indictment, and upon receipt, indorsed thereon by the sheriff of the former county, of the body of the offender, and shall, on filing the copy of the indictment and receipt, be exonerated from all liability in respect to the custody of the offender.
ART. 1438, Sec. 93. In the case of an accessory before or after the fact in the commission of a public offense, the jurisdiction shall be in the county where the offense of the accessory was committed, notwithstanding the principal offense was committed in another county.
ART. 1439, Sec. 94. When an act charged as a public offense is within the jurisdiction of another state or territory as well as of this state, a conviction or acquittal thereof in such state or territory shall be a bar to a prosecution or indictment therefor in this state.
Sec. 95. When an offense is within the jurisdiction of two or more counties, a conviction or acquittal thereof in one county shall be a bar to a prosecution or indictment therefor in another.
2. Time of Commencing Criminal Actions.
ART. 1440, Sec. 96. There shall be no limitation of time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.
ART. 1441, Sec. 97. An indictment for any other felony than murder must be found within three years after its commission.
ART. 1442, Sec. 98. An indictment for any misdemeanor must be found within one year after its commission.
ART. 1443, Sec. 99. If when the offense is committed the defendant be out of the state, the indictment may be found within the term herein limited after his coming within the state, and no time during which the defendant is not an inhabitant of, or usually resident within, the state, shall be a part of the limitation.
ART. 1444, Sec. 100. An indictment is found within the meaning of this title, when it is duly presented by the grand jury in open court, and there received and filed.
3. Complaint and Proceedings thereon to the Commitment, inclusive.
ART. 1445, Sec. 101. The complaint is the allegation made to a magistrate that a person has been guilty of some designated public offense.
ART. 1446, Sec. 102. A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.
Sec. 103. The following persons are magistrates: 1. The justices of the supreme court. 2. The district judges. 3. The county judges. 4. Justices of the peace. 5. The recorders of cities; and, 6. The mayors of cities, upon whom are conferred by law the powers of justices of the peace.
ART. 1447, Sec. 104. When a complaint is laid before a magistrate of the commission of a public offense, triable within the county, he must examine on oath the complainant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making
ART. 1448, Sec. 105. The deposition must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the offense, and the guilt of the defendant.
Sec. 106. If the magistrate be satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he shall issue a warrant of arrest.
ART. 1449, Sec. 107. A warrant of arrest is an order in writing in the name of the people, signed by a magistrate, commanding the arrest of the defendant, and may be substantially in the following form:
The people of the state of California to any sheriff, constable, marshal or policeman in this state, or in the county of : a complaint upon oath having been this day laid before me, by A. B., that the crime of (designate it) has been committed, and accusing C. D. thereof, you are therefore commanded forthwith to arrest the above-named C. D., and bring him before me at (naming the place), or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county.
Dated at -
this day of
ART. 1450, Sec. 108. The warrant must specify the name of the defendant, or if it be unknown to the magistrate, the defendant may be designated therein by any name. It must also state the time of issuing it, and the county, city or town where it is issued, and be signed by the magistrate with his name of office. Sec. 109. The warrant must be directed to and executed by a peace officer. Sec. 110. Peace officers, are sheriffs of counties, and constables, marshals and policemen, of cities and towns respectively.
ART. 1451, Sec. 111. If a warrant be issued by a justice of the supreme court, district judge or county judge, it may be directed generally to any sheriff, constable, marshal or policeman, in this state, and may be executed by any of those officers to whom it may be delivered..
Sec. 112. If it be issued by any other magistrate, it may be directed generally to any sheriff, constable, marshal or policeman, in the county in which it is issued, and may be executed in that county, or if the defendant be in another county it may be executed therein upon the written direction of a magistrate of that county, indorsed upon the warrant signed by him, with his name of office, and dated at the county, city or town where it is made, to the following effect: This warrant may be executed in the county of or as the case may [be].
Sec. 113. The indorsement mentioned in the last section shall not however be made, unless the warrant be accompanied with a certificate of the county clerk, under the seal of this court, as to the official character of the magistrate, or unless upon the oath of a creditable witness in writing, indorsed on or annexed to the warrant, proving the handwriting of the magistrate by whom it was issued. Upon such proof the magistrate indorsing the warrant shall be exempted from the liability to a civil or criminal action, though it afterwards appear that the warrant was illegally or improperly issued.
ART. 1452, Sec. 114. If the offense charged in the warrant be a felony, the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate of the same county, as provided in section one hundred and eighteen.
ART. 1453, Sec. 115. If the offense charged in the warrant be a misdemeanor, and the defendant be arrested in another county, the officer must, upon being so required by the defendant, bring him before a magistrate of such county, who shall admit the defendant to bail.
ART. 1454, Sec, 116. On admitting the defendant to bail the magistrate shall certify on the warrant the fact of his having done so, and deliver the warrant and recognizance to the officer having charge of the defendant. The officer shall forthwith discharge the defendant from arrest, and shall without delay deliver the warrant and recognizance to the clerk of the court at which the defendant is required to appear.
ART. 1455, Sec. 117. If on the admission of the defendant to bail, as provided in section one hundred and fifteen, or if bail be not forthwith given, the officer shall take the defendant before the magistrate who issued the warrant, or some other magistrate of the same county, as provided by the next section.
Sec. 118. When by the preceding sections of this chapter the defendant is required to be taken before the magistrate who issued the warrant, he may, if the magistrate be absent or unable to act, be taken before the nearest or most accessible magistrate in the same county. The officer shall, at the same time, deliver to the magistrate the warrant with his return, indorsed and subscribed by him. Sec. 119. The defendant must in all cases be taken before the magistrate without unnecessary delay.
ART. 1456, Sec. 120. If the defendant be brought before a magistrate in the same county other than the one who issued the warrant, the affidavits on which the warrant was granted, if the defendant insist upon an examination, shall be sent to such magistrate, or if they cannot be procured, the prosecutor and his witnesses shall be summoned to give their testimony anew.
ART. 1457, Sec. 121. When a complaint is laid before a magistrate of the commission of a public offense, triable within some other county of this state, but showing that the defendant is in the county where the complaint is laid, the same proceedings shall be had as prescribed in this chapter, (1) except that the warrant shall require the defendant to be taken before the nearest or most accessible mag
(1) Arts. 1447-1448.