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. 320. 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.

§ 1048. § 1049.

Order of disposing of issues on the calendar.

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.

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. 1851, 290. En. 1851, 212.

Rep.

§ 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. 1851, 290. En. 1851, 212.

§ 1049.

En. April 20, 1850. Rep.

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.

§ 1052.

CHAPTER IX.

POSTPONEMENT OF THE TRIAL.

§ 1052. Postponement, when and how ordered.

Postponement, when and how ordered. When an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day. En. February 14, 1872. Am'd. 1873-4, 441; 1880, 20.

Cal.Rep.Cit. 66, 396; 76, 342; 130, 76; 135, 134.

Crim. Prac. Act, sec. 325. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

TITLE VII.

OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT.

Chapter I. Challenging the Jury, §§ 1055-1089.

II.

III.

The Trial, §§ 1093-1131.

Conduct of the Jury after Cause is Submitted

to Them, §§ 1135-1143.

IV. The Verdict, §§ 1147-1167.

V. Bills of Exception, §§ 1170-1176.

VI.

New Trial, §§ 1179-1182.

VII. Arrest of Judgment, §§ 1185-1188.

§ 1061.

§ 1062.

§ 1063.

§ 1064.

§ 1065.

§ 1066.

§ 1067.

§ 1068.

§ 1069.

§ 1070.

Number of peremptory challenges.

CHAPTER 1.

CHALLENGING THE JURY.

Definition and division of challenges.

Defendants cannot sever in challenges.

Challenge to the jury defined.

Exception, if sufficiency of the challenge be denied.
If exception overruled, court may allow denial, etc.
Denial of challenge, how made, and trial thereof.
Challenge for bias in summoning officer.
Proceedings, if challenge allowed.

Defendant to be informed of his right to challenge.
Kinds of challenges to individual juror.

Challenge, when taken.

Peremptory challenge, what, and how taken.

Definition and kinds of challenge, for cause.

Particular cause of challenge.

Triers, how appointed. Majority may decide.
Oath of triers. (Repealed.)

§ 1081.

§ 1082.

(Repealed.)

Juror challenged may be examined as a witness.
Rules of evidence on trial of challenge.

§ 1084.

§ 1085. § 1086.

§ 1087.

Order of challenges.

§ 1088.

Instructions on trial for actual bias. (Repealed.)
Verdict of triers, and its effect. (Repealed.)
Challenges, first by the defendant.

Peremptory challenges, when may be taken.

§ 1089. Alternate jurors.

§ 1055.

Definition and division of challenges. A challenge is an objection made to the trial jurors, and is of two kinds:

1. To the panel.

2. To an individual juror. En. February 14, 1872. Crim. Prac. Act, sec. 326. En. April 20, 1850. 1851, 290. En. 1851, 212.

Rep.

§ 1056. Defendants cannot sever in challenges. When several defendants are tried together, they cannot sever their challenges, but must join therein. En. February 14, 1872.

Crim. Prac. Act, sec. 327. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal.Rep.Cit. 8, 303.

§ 1057.

Panel defined. The panel is a list of jurors returned by a sheriff to serve at a particular court, or for the trial of a particular action. En. February 14, 1872.

Crim. Prac. Act, sec. 328. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Selecting and returning jurors: Code Civ. Proc., secs. 204-211.

Drawing jurors: Code Civ. Proc., secs. 214-220.
Summoning jurors: Code Civ. Proc., secs. 225-228.

§ 1058. Challenge to the jury defined. A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party. En. February 14, 1872. Crim. Prac. Act, sec. 329. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.