$687. Second prosecution for the same offense prohibited. § 688. No person to be a witness against himself in a criminal action, or to be unnecessarily restrained. § 689. No person to be convicted but upon verdict or judgment. § 681. No person punishable but on legal conviction. No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof. There is another section of this number. See prior section. Conviction of public offense, how may be had: See post, § 689. Legislation § 681. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §3); based on Crim. Prac. Act., Stats. 1851, p. 212, § 6. § 682. Public offenses, how prosecuted. Every public offense must be prosecuted by indictment or information, except: 1. Where proceedings are had for the removal of civil officers of the state; 2. Offenses arising in the militia when in actual service, and in the land and naval forces in the time of war, or which the state may keep, with the consent of Congress, in time of peace; 3. Offenses tried in justices' and police courts; 4. All misdemeanors of which jurisdiction has been conferred upon superior courts sitting as juvenile courts. [Amendment approved 1911; Stats. 1911, p. 68.] Prosecution: See Const., art. i, §§ 8, 13. Proceedings for removal of officers may be by accusation or information: See post, § 889. Legislation § 682. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 4); based on Crim. Prac. Act, Stats. 1851, p. 212, § 7. 2. Amended by Code Amdts. 1880, p. 10, in introductory paragraph adding "or information" after "indictment." 3. Amended by Stats. 1911, p. 68, the change consisting in the addition of paragraph 4. § 683. Criminal action defined. The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action. Legislation § 683. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 5); based on Crim. Prac. Act, Stats, 1851, p. 212, § 8. $686 § 684. Parties to a criminal action. A criminal action is prosecuted in the name of the people of the state of California, as a party, against the person charged with the offense. Legislation § 684. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 6); based on Crim. Prae. Act, Stats. 1851, p. 213, § 9. § 685. The party prosecuted known as defendant. The party prosecuted in a criminal action is designated in this code as the defendant. Legislation § 685. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 7); based on Crim Prac. Act, Stats. 1851, p. 213, § 10. § 686. Rights of defendant in criminal action. In a criminal action the defendant is entitled: 1. To a speedy and public trial. 2. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel. 3. To produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, crossexamined or had an opportunity to cross-examine the witness; or where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally in the like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, the deposition of such witness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found within the state; and except also that in the case of offenses hereafter committed the testimony on behalf of the people or the defendant of a witness deceased, insane, out of jurisdiction, or who cannot, with due diligence, be found within the state, given on a former trial of the action in the presence of the defendant who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, may be admitted. [Amendment approved 1911; Stats. 1911, p. 364.] Constitutional provisions: See Const., art. i, § 13. Dismissal if defendant not brought to trial within sixty days: See post, § 1382. Legislation § 686. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 8); based on Crim. Prae. Act, Stats. 1851, p. 213, § 11, and then read: "In a criminal action the defendant is entitled: "1. To a speedy and public trial. "2. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel. "3. To produce witnesses on his behalf, and to be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness; or where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally in the like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, the deposition of such witness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found within the state." 2. Amended by Stats. 1911, p. 364. § 687. Second prosecution for the same offense prohibited. No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted. Constitutional provisions: See Const., art. i, § 13; U. S. Const., Amdt. 5. Dismissal no bar: See post, § 999. Legislation § 687. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 9); based on Crim. Prae. Act, Stats. 1851, p. 213, § 12, which read: "§ 12. No person shall be subject to a second prosecution for a public offense, for which he has once been prosecuted and duly convicted or acquitted." § 688. No person to be a witness against himself in a criminal action, or to be unnecessarily restrained. No person can be compelled, in a criminal action, to be a witness against himself; nor can a person charged with a public offense be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. Defendant offering himself as witness, examination of: See post, § 1323. Defendant cannot be compelled to be witness against himself: See post, § 1323. Legislation § 688. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 10); based on Crim. Prac. Act, Stats. 1851, p. 213, § 13, which read: "§ 13. No person shall be compelled in a criminal action to be a witness against himself, nor shall a person charged with a public offense be subjected before conviction to any more restraint than is necessary for his detention to answer the charge." § 689. No person to be convicted but upon verdict or judgment. No person can be convicted of a public offense Pen. Code-26 unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon judgment against him upon a demurrer in the case mentioned in section one thousand and eleven, or upon a judgment of a court, a jury having been waived in a criminal case not amounting to felony. [Amendment approved 1880; Code Amdts. 1880, P. 4.1 Legislation § 689. 1. Enacted February 14, 1872; based on Crim. Prac. Act, Stats. 1851, p. 213, § 14, which read: "§ 14. No person can be convicted of a public offense, unless by a verdict of a jury accepted and recorded by the court, or upon a plea of guilty, or upon a judgment against him upon a demurrer to the indictment in the case, mentioned in section two hundred and sixty-six." When enacted in 1872, the latter part of § 689 read, "or upon judgment against him upon a demurrer to the indictment in the case mentioned in section 1011, or upon a judgment of a police or justice's court, a jury having been waived." 2. Amended by Code Amdts. 1880, p. 4. |