be put in by counsel. The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted. [In effect April 9th, 1880.]

Plea of guilty.-The plea of guilty should not be entered, except with the express consent of defendant given personally, in direct terms in open court-41 Cal. 461. The court may, in its discretion, allow the plea of guilty to be withdrawn-24 N. H. 143; see 2 Nev. 321. When there is reason to believe it has been entered through inadvertence, and mainly from the hope that punishment would be mitigated, the court should permit it to be withdrawn-41 Cal. 462; but the party should not be permitted to trifle, by entering a plea one day, and capriciously withdrawing it the next-id. The Supreme Court will not reverse an order refusing to permit the plea of not guilty to be withdrawn-17 Cal. 76.

See ante, § 1016, note; 49 Cal. 395.

1019. The plea of not guilty puts in issue every material allegation of the indictment or information. [In effect April 9th, 1880.]

Plea of not guilty.-The plea of not guilty puts in issue all the mate rial averments, including that of the locus delicti-52 Cal. 470; 44 id. 105; 48 id. 382; 9 id. 421. Under this plea insanity may be shown-28 Cal. 461. See ante, § 1016, note; 49 Cal.395. Proceedings on plea of insanity -see post, §§ 1368-1372. The plea of not guilty puts in issue the averment of place where the crime was committed, and imposes on the prosecution the necessity of proving the locus delicti-52 Cal. 470.

1020. All matters of fact tending to establish a defense, other than that specified in the third and fourth subdivisions of section one thousand and sixteen, may be given in evidence under the plea of not guilty. [In effect April 26th, 1880.]

Involuntary intoxication.-If a person be made drunk by fraud or stratagem, or by the unskillfulness of a physician, he is not responsible for his acts-2 Parker Cr. R. 235; 31 Ga. 424; see 19 Mich. 401; 33 Ind. 543; 40 Conn. 136.

Insanity from intoxication may excuse from punishment for crime, as on a fixed frenzy or insanity, as delirium tremens-43 Cal. 344; 1 Ashm. 289; 50 Barb. 266; 48 id. 274; 6 Parker Cr. R. 209; 1 Curt. 1; 2 Cranch C. C. 158; Crabbe, 558; 1 Duval, 224; 20 Gratt. 860; 3 Har. (Del.) 551; 5 id. 510; 26 Ind. 422; 4 id. 563; 31 id. 492; 3 Jones, (N. C.) 245; Mart. & Y. 147; 5 Mason, 28; 19 Mich. 401; 46 Mo. 414; 18 N. Y. 9; 5 Ohio St. 77; 12 Tex. 500; or mania a potu-3 Har. (Del.) 551.

Intoxication.-Voluntary intoxication is no excuse for crime-27 Cal. 507; 36 id. 531; 49 id. 485; 7 Abb. Pr. 321; 13 Ala. 413; 54 Barb.319; 50 id. 226; 2 Brewst. 546; 8 Bush,464; Crabbe, 558; 2 Cush. 500; 2 Cranch C. C. 158; 1 Curt. 1; 2 id. 19; 2 Dall. 88; 1 Duval, 224; 2 id. 163; 55 Ga. 31; 45 id. 225; 3 Gray, 463; 20 Gratt. 860; 5 Har. (Del.) 510; 9 Humph. 663; 11 id. 154; 66 Ill. 118; 66 Ind. 185; 58 id. 182; 40 id. 263; 14 Kans. 538; 27 La. An. 691; 22 id. 587; 2 Mason, 91; 5 id. 28; Mart. & Y. 147; 2 Met. (Ky.) 1; 114 Mass. 295; 21 Minn. 22; 14 Mo. 502; 65 id. 530; 5s id. 556; 12 Nev. 140; 44 N. H. 392; 31 N. Y. 330; 2 Parker Cr. R. 14; 5 id. 621; 1 Strob. 479; Smedes & M. 518; 12 Tex. 500; 24 Wis. 452; 1 Wright, 520: 50 Vt. 483;

even where so extreme as to make the person unconscious of his acts -17 Mich. 9; 3 Heisk. 202. It does not aggravate a criminal act, it simply furnishes no excuse-38 Ill. 514. It neither excuses nor palliates passion or malice-1 Duval, 224; 2 id. 163; 11 Humph. 154; 1 Spear, 384; 3 Smedes & M. 518; 8 Ohio St. 435; 25 id. 369; see 9 Humph. 663; 8 Ired. 330; 2 Parker Cr. R. 235; 25 id. 223; nor lower the grade of the offense -Addis. 255; 13 Ala. 413; 8 Bush, 463; 40 Conn. 584; 3 Gray, 468; 2 Keyes, 424; 20 Gratt. 860; 38 Ill. 514; 65 Mo. 530; 14 La. An. 570; 12 Nev. 140; 8 Ohio St. 435; 2 Mason, 91. Nor does it extenuate crime-27 Cal. 507; 29 Cal. 678; 21 id. 554; 114 Mass. 295. Nor furnish an inference of the absence of premeditation-48 Barb. 274; 36 N. Y. 276; 27 Mo. 332; see ante, $22.

Intoxication.-Though intoxication does not extenuate or excuse crime, yet it may be receivable in evidence to determine the degree of the offense-27 Cal. 507; 3 Parker Cr. R. 632; 18 N. Y. 9; or to determine what specific offense was committed-21 Cal. 544; 27 id. 507; 43 id. 344; 36 id. 531; 13 Ala. 413; 33 id. 419; 2 Brewst. 546; 1 Duval, 224; 2 id. 163; 25 Ga. 527; 29 id. 594; 33 id. 449; 9 Humph. 663; 4 id. 136; 19 Mich. 401; 11 Minn. 154; 16 Ind. 428; 2 Lea, (Tenn.) 578; 1 Spear, 381; 43 Tex. 503; 2 Tex. Ct. App. 275; 4 id. 275; id. 461; or to test the condition of the mind, and its capacity to form an intention-34 Cal. 212; 27 id. 507; 1 Dak. 203; 31 N. Y. 330; or to show that he was not capable of deliberation, or of attack or defense-40 Conn. 136; 9 Kans. 119; or incapable of judging his acts or their consequences-21 Cal. 544; 37 id. 507; 44 Pa. St. 55; 19 Mich. 401; 11 Humph. 154; 4 id. 136; 9 id. 663; 8 id. 671; 1 Spear, 384. It may be shown in mitigation of punishment-2 Bush, 67; 5 id. 362; 7 id. 320; 8 id. 463; 1 Duval, 224. Evidence of intoxication should be received with great caution, for a drunken man may act with premeditation as well as another-38 Cal. 531. See Desty's Crim. Law, §§ 27, b, c.

Proof of insanity.-Under the plea of not guilty the insanity of defendant at the time of the act may be given in evidence-28 Cal. 461; but it should be examined with great care-39 Cal. 625. The presump tion of law is that defendant was sane till the contrary is shown from preponderance of proof-20 Cal. 518; see 6 id. 543. Habitual, but not temporary or spasmodic insanity raises the legal presumption of its continuance-38 Cal. 183; 17 Cal. 424. The insanity of defendant's parents may be shown when there appears to be no motive for the act, or where there is evidence of insanity of the defendant-31 Cal. 466. See post, § 1369, and note.

Statute of limitations.-The statute of limitations need not be specially pleaded-17 Wall. 168; 4 Day, 121; 3 Cranch C. C. 441; 5 id. 73; 2 Low. 267; 29 N. H. 274; 28 Pa. St. 259; contra, 5 Parker Cr. R. 231; 74 N. C. 230; 4 Ga. 335; 10 Humph. 52; 8 Ind. 494; 7 Iowa, 409.

Excuse and justification.-Misfortune or accident as an excusesee Desty's Crim. Law, §§ 30, a, b; ante, § 26, subd. 6. Acts done under compulsion or duress-id. §§ 32, a, b; ante, § 26, subd. 8. Consent of party injured, as an excuse-see Desty's Crim. Law, §§ 33, a, b. Ignorance or mistake of law, as an excuse-id. §§ 34, a, b. Ignorance or mistake of fact-id. §§ 35, a, b; ante, § 26, subd. 4.

Self-defense.-The right of self-defense is based on necessity-27 Cal. 572. The owner of a house may use force necessary to repel an assault-8 Cal. 341; Addis. 246. The act of raising the window in the night is not sufficient to rouse the fears of a reasonable man so as to excuse the use of a deadly weapon, without first warning the intruder off-43 Cal. 447; 90 Ill. 221. A party assaulted is justified in using such force as is necessary to repel assailant, but no more-32 Cal. 280; 30 id. 312; 44 id. 65; 2 Minn. 270; 1 Ohio St. 66. He may use whatever force is necessary to avert apparent danger, although it afterward appears there was no real danger-44 Cal. 69; and his guilt or innocence depends on the circumstances as they appear to him-55 Cal. 207; 44 id. PEN. CODE.-34.

69; 54 Barb. 342; 46 id. 625; 32 N. Y. 509; and if, without fault or carelessness, he is misled concerning them, and defends according to the supposed state of facts, he is justifiable, although the facts are in truth otherwise, and there is really no occasion for extreme measures-55 Cal. 202; People v. Miles, 55 Cal. 207. Mere antecedent threats is no excuse for a deadly assault, when no demonstration is made by the party threatening-45 Cal. 261. See Desty's Crim. Law. title HOMICIDE.

1021. If the defendant was formerly acquitted on the ground of variance between the indictment or information and the proof, or the indictment or information was dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense. [In effect April 9th, 1880.]

Acquittal, when not a bar.-A former acquittal or conviction pro cured by fraud is no bar-4 Mass. 477; 111 id.404; 48 Mo. 70; 32 Ark.722; 16 Iowa, 239; 4 Blackf. 345; 31 Ill. 409; 7 Ga. 422; 1 Swan, 34; 16 Conn. 54; 26 id. 202; 9 Humph. 677; 11 id. 599; 1 Head, 270; 2 How. St. Tri. 544; Sayers, 90. An acquittal of burglary, with intent to steal, is not a bar to a prosecution for larceny-20 Cal. 622; 14 Ga. 8; 2 Hawks, 98; 46 Ala. 717; 14 Ind. 572; so, a discharge on a preliminary examination-16 Kan. 608; nor a discharge by agrand jury-2 Ashm. 61; 2 Moody & R. 503; and see 5 Ga. 81; or where the indictment was quashed-126 Mass. 246; 32 Ark. 231. Evidence that a former indictment had been set aside on the ground that the grand jury had not been legally constituted, and that the court had ordered the case submitted to another grand jury, will not sustain a plea of former acquittal-53 Cal. 630. A former pending indictment is no bar to a trial on the second-5 Cranch C. C. 87; 3 Cush. 279; 11 id. 472; 5 Gray, 93; 126 Mass. 265; 14 Wend. 9; 28 Gratt. 950; 2 Dev. & B. 159; 78 N. C. 558; 5 Ind. 532; 22′id. 347; 36 Miss. 614.

Variance.-Immaterial variance should be disregarded-41 Cal. 236; if the defendant be in fact acquitted on the ground of immaterial variance, he cannot be again prosecuted for the same offense-41 Cal. 236; but if the variance be material, it is not a bar-41 Cal. 236. Where the indictment charged stealing of five certificates of shares of stock of the No. 7056, and the proof showed there was but one such certificate, and not a series of five, it was not a fatal variance-45 Cal. 672; see ante, § 1016, and post, § 1112; see 49 Cal. 395.

1022. Whenever the defendant is acquitted on the merits, he is acquitted of the same offense, notwithstanding any defect in form or substance in the indictment or information on which the trial was had. [In effect April 9th, 1880.]

Former acquittal.-Where a person is put on trial on a valid indictment, before a competent court and jury, a discharge of the jury without his consent, or from some unavoidable accident or necessity, is equivalent to an acquittal-48 Cal. 326; 24 id. 41. So, if the prosecut ing attorney enters a nolle prosequi after the jury is impanneled and sworn, the accused cannot be again indicted for the same offense-24 Cal. 41; 8 Ala. 951; 16 id. 781; 44id. 9; 54 id. 93; 8 Barb. 158; 1 Bail. 651; 7 Blackf. 186; 8 id. 545; 4 Cranch C. C. 465; 2 Caines, 304; 5 Cold. 311;

Dev. 491; 3 Ga. 53; 9 id. 306; 55 id. 625; 7 Gray, 328; 1 Humph. 253; 5 Ind. 290; 2 McLean, 114; 49 N. H. 155; 14 Ohio, 295; 12 Ohio St. 214; 20 Pick. 356; 23 Pa. St. 12; Thach. C. C. 132; 12 Vt. 93; 3 W. Va. 700; but it is otherwise where défendant was not in jeopardy-2 Brewst. 567; 1 Curt. 23; 42 Conn. 432; 7 Gray, 328; 35 Tex. 98; 12 Vt. 93. If, while the jury is out deliberating, and before the expiration of the term, the judge, without calling the jury into court, adjourns for the term, it is equivalent to an acquittal-48 Cal. 329. Surprise, in the sudden breaking down of the case of the prosecution, will not justify withdrawing of a juror-2 Caines, 305; 2 McLean, 114; 2 Parker Cr. R. 676; 2 Strange, 984; but see contra, 13 Ired. 203; 15 Wend. 371.

1023. 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. [In effect April 26th, 1880.]

Higher offense.-On an indictment for murder, defendant was found guilty of manslaughter, and on a second indictment for murder, his former conviction was a good plea, though a new trial had been granted on his motion-4 Cal. 376; 5 id. 278. A conviction of manslaughter is an acquittal of every higher offense, and so of all offenses included in an indictment-35 Cal. 391. If a person is indicted for manslaughter, and the court, without consent of defendant, discharges the jury because it is of opinion that the evidence shows defendant guilty of murder, if he is again indicted for the same killing, he is twice In jeopardy, and is entitled to acquittal-48 Cal. 334. See ante, § 1016, subd. 3.

1024. If the defendant refuses to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered. [In effect April 9th, 1880.]

Refusal to plead.-If a defendant stands mute, a plea of not guilty can be entered by order of court-125 Mass. 397; 76 Pa. St. 319; 5 Whart. 67; 10 Cox C. C.409; so if he refuses or declines to plead after demurrer overruled-28 Cal. 274; 29 id. 562. A refusal to plead does not admit jurisdiction-30 Mich. 371.

1025. Section one thousand and twenty-five of said Code is hereby repealed. [In effect April 9th, 1880.]

CHAPTER V.

TRANSMISSION OF CERTAIN INDICTMENTS FROM THE COUNTY COURT TO THE DISTRICT COURT OR MUNICIPAL CRIMINAL COURT OF SAN FRANCISCO.

§ 1028. Transmission of indictments from the County to District Courts. [Repealed.]

§ 1029. Indictments against a superior judge.

§ 1030. Indictments transmitted to Municipal Criminal Court. [Re pealed.]

1028. Repealed. [In effect March 12th, 1880.]

1029. 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. [In effect March 12th, 1880.]

1030. Repealed. [In effect March 12th, 1880.]