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made competent witnesses, and defendants on trial are entitled to have such witness brought from the penitentiary (Sec. 1567, Penal Code) upon a proper showing of materiality of the testimony. People v. Willard, 92 Cal. 482.
Section 1382, Penal Code, is mandatory, and prescribes the means and the only means of enforcing the constitutional right to a speedy and public trial. People v. Staples, 91 Cal. 29, citing People v. Morino, 85 Cal. 515.
The act of 1889, (Stats. p. 70) relating to opening, widening, etc., of streets, does not provide for taking property without due process of law. The act provides due notice of every material step taken in the proceedings, and it is not unconstitutional that such notice may be given by posting instead of personally. Davies r. City of Los Angeles, 86 Cal. 37.
It is the duty of the court to submit to the jury the issue raised by a plea of former jeopardy, and have it specially passed on, in addition to the general finding upon the plea of not guilty. People v. Hamburg, 84 Cal. 468. (People v. Fuqua, 61 Cal. 377.)
If section 1180, Penal Code, authorizes defendant to be tried for higher offense after conviction of lower offense has been set aside at his instance, it is unconstitutional. People v. Gordon, 99 Cal. 227. See People v. Carty, 77 Cal. 213, and People v. Keefer, 65 Cal. 232, where it was held that a conviction for manslaughter being set aside on defendant's appeal, he could afterwards be convicted of murder under the same indictment or information.
The plea of once in jeopardy and former acquittal must be entered in the minutes substantially as prescribed by section 1017, Penal Code. People v. O'Leary, 77 Cal. 30.
When defendant procures a reversal of a judgment against him upon appeal, though asking for a discharge because of insufficiency of the verdict, and not for a new trial, if the prayer for discharge_be denied and new trial ordered, he will be deemed to have impliedly assented to all the consequences legitimately following his appeal, and a plea of once in jeopardy by reason of the former trial cannot be sustained upon the new trial. People v. Travers, 77 Cal. 176.
There cannot be as many prosecutions for libel maintained upon a single article published in a single issue of a newspaper, as there are false and defa ma. tory statements concerning a single individual in such article. “Out of the same facts a series of charges shall not be preferred.” A plea of former jeopardy is sustained at second trial for libel based upon a libelous statement contained in a newspaper article, by evidence of former trial based upon a different libel contained in the same article published at same time, etc. People v. Stephens, 79 Cal. 423.
The commencement of a trial and discharge of the jury because of the sickness of one of the jurors without the consent of defendant, does not result in an acquittal, nor being in jeopardy. People v. Ross, 85 Cal. 383.
Section 1382 of Penal Code prescribing the time within which an information or indictment must be filed against a person charged with crime, and a time thereafter within which he must be tried, are mandatory and leaves no discretion in the court to prolong the time of imprisonment without a trial. Where an information was filed and the defendant within five days entered a plea of not guilty, the case should have been dismissed on his motion made more than sixty days after the filing of the information where he had not been brought to trial within that time, and the prosecution showed no valid reason for the delay. People v. Morino, 85 Cal. 515.
The Superior Court being led through deceit and misrepresentation of counsel to believe that the Supreme Court had, on appeal, reversed an order refusing a new trial, instead of having reversed an order granting a new trial, permitted the defendant to plead guilty of a lesser offense than that with which she was charged and had in fact been convicted by verdict of a jury. A fine having been paid in satisfaction of a judgment of the court entered on the plea of guilty and the defendant having been again brought before the court to receive sentence upon the verdict of the jury, Held, she had not been in jeopardy by reason of the plea of guilty of the lesser offense and the judgment of fine. People v. Woods, 84 Cal. 441.
The right to have compulsory process for the attendance of witnesses does not give an absolute right to a defendant in a criminal case to have an order of court for the production of a witness confined in state prison. The necessity of the production is a matter of sound discretion with the trial court. Willard v. Superior Court, 82 Cal. 456.
The act of April 1, 1878, (Stats. p. 106), provided that on the death of a police officer of San Francisco, the city and county treasurer should pay a certain eum to his legal representatives out of a ceriain fund created by said act. Held, this did not create a vested right in the officer during his life, and the subsequent act of March 4, 1889, (Stats. p. 56) creating a police relief and pension fund in the several cities and counties of the state and providing that any fund provided by law and theretofore existing in any county, city or town for the relief or pensioning of police officers, etc., or for the payment of a sum of money on their death, should be merged in the fund created by the latter act, impliedly repealed the act of 1878, and did not deprive such officers of property without due process of law. Pennie v. Reis, 80 Cal. 266.
A person acquitted on trial for assault with deadly weapon for variance as to the name of the person assaulted, and a new information ordered, is not entitled to a plea of twice in jeopardy, on the second trial. People v. Oreileus, 79 Cal. 178.
The act of April 15, 1880, (Stats. p. 227) providing for protection of lands from overflow, authorizes the taking of property without due process of law, in that it does not provide for notice to the owners to be heard as to the validity of the assessment. Hutson v. Woodbridge, P. Dist., 79 Cal. 9.
Counsel should be appointed for a defendant charged with murder; a plea of not guilty having been entered and insanity being relied upon as a defense, where the defendant's employed counsel is absent at the legislature and his employment as counsel does not appear to have been made prior to commencement of legislative session. People v. Goldenson, 76 Cal. 328.
A defendant cannot plead once in jeopardy where at a former trial he consented to the discharge of a jury which had brought in a void judgment. People v. Curtis, 76 Cal. 57.
The examination before a magistrate, and discharge upon a criminal accusation is not jeopardy, and will not bar a second arrest and examination. Ex parte Fenton, 77 Cal. 183.
It has been held in New York that an act which substantially destroys the property in intoxicating liquors owned and possessed by a party within the state when the act took effect by preventing its sale, keeping, giving away, etc., is inoperative and void as depriving a person of propertywithout due process of law. The question not being properly presented to this court by the record, is not decided. Ex parte Campbell, 74 Cal. 20.
The provisions of the act of March 7, 1887, (Stats. p. 46) to prohibit the sophistication and adulteration of wine and to prevent fraud are not so unreasonable in their restrictions as to deprive any persons of their property without due process of law. Ex parte Kohler, 74 Cal. 38.
A defendant convicted of assault with a deadly weapon under an information charging him with assault with intent to commit murder is not placed twice in jeopardy by afterwards being tried upon a charge of attempt to commit robbery although the offenses were so closely connected in point of time that it is impossible to separate the evidence relating to them, (People v. Bentley, 77 Cal. 7) and where the verdict fails to find the degree of the crime. People v. Travers, 73 Cal. 580.
The power to determine the expediency of a public improvement is legislative in character, not judicial, and the act of March 26, 1876, (Stats. p. 433)
for widening of Dupont street in San Francisco, which left it to the supervisors to first determine or pass upon the expediency of the proposed improvement, before the act should take effect, was not a taking of property without a due process of law. There is no constitutional right of the owner to be heard in such matters before an assessment is made. Lent v. Tillson, 72 Cal. 404.
A person is in jeopardy when placed upon trial before a competent court and jury upon a valid indictment, and cannot be again subjected to trial for same offense unless the jury is discharged without a verdict by reason of some legai necessity or by his consent, or unless their verdict, if against him, be set aside at his instance. (People v. Webb, 38 Cal. 467); People v. Horn, 70 Cal. 17.
One private person cannot take the property of another either for the use of the taker or an alleged public use without any compensation made or tendered. Lux v. Haggin, 69 Cal. 265.
The action the court in sending a jury in charge of an officer to view the premises where a homicide has been committed, the defendant not accompanying the jury, permits the receiving of evidence by the jury not in the presence of defendant, and is not allowing defendant to be present in person in all stages of the proceeding. Section 1119 Penal Code does not contemplate the absence of defendant. (Myrick and McKee, JJ., dissent.) There should be no evidence taken in the absence either of the court or defendant. (Searls, Comr., Thornton and McKinstry, JJ., concurring.) People v. Bush, 68 Cal. 623.
A person is not placed in jeopardy by a conviction upon an indictment charging a crime to have been committed on a day subsequent to the date of its filing. People v. Larson, 68 Cal. 18. Citing People v. Clark, 67 Cal. 99.
Where defendant was present and had opportunity to cross-examine a witness whose deposition was taken before the committing magistrate, such deposition may be read in evidence at his trial, proof