Crim. Prac. Act, sec. 306. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1023. Conviction or acquittal for a higher offense, effect of. When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal, or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information. En. February 14, 1872. Am'd. 1880, 45. Cal.Rep.Cit. 99, 231; 132, 500; 133, 129; 138, 484. Crim. Prac. Act, sec. 307. 1851, 290. En. 1851, 212. See ante, sec. 1016, subd. 3. En. April 20, 1850. Rep. § 1024. Defendant refusing to answer, plea of not guilty. If the defendant refuses to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered. En. February 14, 1872. Am'd. 1880, 19. Cal. Rep.Cit. 64, 339; 64, 340; 64, 341; 73, 446; 73, 447; 57, 561; 57, 572; 65, 298; 73, 443; 73, 444; 73, 450; 73, 451; 88, 118. The repealed section was as follows: "Sec. 1025. When a defendant, who is charged on the indictment with having suffered a previous conviction, pleads either guilty or not guilty of the offense for which he is indicted, he must be asked whether he has suffered such previous conviction. If he answers that he has, his answer shall be entered by the clerk in the minutes of the court, and shall, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings. If he answers that he has not, his answer shall be entered by the clerk in the minutes of the court, and the question whether or not he has suffered such previous conviction shall be tried by the jury which tries the issue upon the plea of 'not guilty,' or in case of a plea of 'guilty,' by a jury impaneled for that purpose. The refusal of the defendant to answer is equivalent to a denial that he has suffered such previous conviction. In case the defendant pleads not guilty,' and answers that he has suffered the previous conviction, the charge of the previous conviction shall not be read to the jury, nor alluded to on the trial." CHAPTER V. TRANSMISSION OF CERTAIN INDICTMENTS FROM THE COUNTY COURT TO THE DISTRICT COURT, OR MUNICIPAL CRIMINAL COURT OF SAN FRANCISCO. § 1028. § 1029. Transmission of indictments from the county to district courts. (Repealed.) Indictments against a superior judge. § 1030. Indictments transmitted to municipal criminal court. (Repealed.) § 1028. Transmission of indictments from the county to district courts. (Repealed.) En. February 14, 1872. Am'd. 1873-4, 440. Rep. 1880, 6. Cal.Rep.Cit. 51, 601. Crim. Prac. Act, sec. 309. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1860, 31; 1863, 160. Cal.Rep.Cit. 4, 241. § 1029. Indictments against a superior judge. When an indictment is found, or an information filed in a superior court against a judge thereof, a certificate of that fact must be transmitted by the clerk to the governor, who shall thereupon designate and direct a judge of the superior court of another county to preside at the trial of such indictment or information, and hear and determine all pleas and motions affecting the defendant thereunder before and after judgment. 1873-4, 440; 1880, 6. Cal.Rep.Cit. 81, 569. En. February 14, 1872. Am'd. Crim. Prac. Act, sec. 310. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1863, 160. § 1030. Indictments transmitted to municipal criminal (Repealed.) En. February 14, 1872. Rep. 1880, 6. court. § 1037. § 1038. Proceedings on removal. Proceedings on removal, if defendant is in custody. Transmission of papers. § 1033. When action may be removed. A criminal action may be removed from the court in which it is pending: First-On the application of the defendant, on the ground that a fair and impartial trial cannot be had in the county where the action is pending. Second. On the application of the district attorney, on the ground that from any cause no jury can be obtained for the trial of the defendant in the county where the action is pending. En. February 14, 1872. Am'd. 1880, 19; 1887, 61. Cal. Rep.Cit. 56, 328; 56, 329; 87, 350; 87, 354; 87, 361; Crim. Prac. Act, sec. 312. 1851, 290. En. 1851, 212. 56, 330; 65, 147; 80, 298; 87, 366; 132, 632. En. April 20, 1850. Rep. Change of venue in criminal cases.-Section 397 of the Code of Civil Procedure, providing for the change of the place of trial in civil actions, has no application to criminal cases. The only provisions of law providing for a removal of such cases from one county to another for trial are found in the Penal Code, sections 1033-1038, inclusive. § 1034. Application for removal, how made. The application must be made in open court and in writing, verified by the affidavit of the defendant or of the district attorney, as the case may be, a copy of which application must be served upon the attorney of the adverse party at least one day prior to the hearing of the application. Whenever the affidavit of the defendant shows that he cannot safely appear in person to make such application, because popular prejudice is so great as to endanger his personal safety, and such statement is sustained by other testimony, such application may be made by his attorney, and shall be heard and determined in the absence of the defendant, notwithstanding the charge then pending against him be a felony, and he has not at the time of such application been arrested or given bail, or been arraigned, or pleaded, or demurred to the indictment or information. En. February 14, 1872. Am'd. 1887, 61. Cal.Rep.Cit. 56, 329; 65, 147. Crim. Prac. Act, sec. 313. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1857, 71. § 1035. Application, when granted. If the court be satisfied that the representations of the applicant are true, an order must be made transferring the action to the proper court of some convenient county, free from a like objection. En. February 14, 1872. Am'd. 1887, 62. Cal.Rep. Cit. 65, 147; 80, 298. Crim. Prac. Act, sec. 314. En. April 20, 1850. 1851, 290. En. 1851, 212. Am'd. 1863, 160. Rep. 1036. Order of removal. The order of removal must be entered upon the minutes, and the clerk must immediately make out and transmit to the court to which the action is removed a certified copy of the order of removal, record, pleadings, and proceedings in the action, including the undertakings for the appearance of the defendant and of the witnesses. En. February 14, 1872. Cal.Rep.Cit. 71, 605. Crim. Prac. Act, sec. 315. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1037. Proceedings on removal, if defendant is in custody. If the defendant is in custody, the order must direct his removal, and he must be forthwith removed by the sheriff of the county where he is imprisoned, to the custody of the sheriff of the county to which the action is removed. En. February 14, 1872. Crim. Prac. Act, sec. 316. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. removal. Transmission of § 1038. Proceedings on papers. The court to which the action is removed must proceed to trial and judgment therein as if the action had been commenced in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action is removed must at any time, upon application of the district attorney or the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained. En. February 14, 1872. Crim. Prac. Act, sec. 317. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Costs on removal of criminal action chargeable against what county: See Political Code, sec. 4345. CHAPTER VII. THE MODE OF TRIAL. § 1041. Issue of fact defined. § 1042. How tried. § 1043. $ 1041. When presence of defendant is necessary on the trial. Issue of fact defined. An issue of fact arises: 1. Upon a plea of not guilty. |