CHAPTER XI.

IRRORS AND MISTAKES IN PLEADINGS AND OTHER PRO

CEEDINGS.

§ 1404. When not material.

1404. Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.

Errors in pleadings.-An error must actually prejudice the defendant 44 Cal. 542; see 49 id. 390. A failure to read the indictment, and to state defendant's plea, is not a fatal error-53 Cal. 494. Tech nical errors or defects are disregarded on appeals-53 Cal. 494.

CHAPTER XII.

DISPOSAL OF PROPERTY STOLEN OR EMBEZZLED.

§ 1407. Peace officer must hold property subject to the order of mag

§ 1410.

Court in which trial is had may order its delivery.

§ 1411.

Delivered to county treasurer if not claimed in six months. § 1412. Receipt for money, etc., taken from person arrested. § 1413. Record of property alleged to be stolen.

1407. When property, alleged to have been stolen or embezzled, comes into the custody of a peace officer, he must hold it subject to the order of the magistrate authorized by the next section to direct the disposal thereof.

1408. On satisfactory proof of the ownership of the property, the magistrate before whom the information is laid, or who examines the charge against the person accused of stealing or embezzling it, must order it to be delivered to the owner, on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property.

1409. If property stolen or embezzled comes into custody of the magistrate, it must be delivered to the owner on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate.

1410. If the property stolen or embezzled has not been delivered to the owner, the court before which a trial is had for stealing or embezzling it may, on proof of his title, order it to be restored to the owner.

1411. If the property stolen or embezzled is not claimed by the owner before the expiration of six months from

the conviction of a person for stealing or embezzling it, the magistrate or other officer having it in custody must, on the payment of the necessary expenses incurred in its preservation, deliver it to the county treasurer, by whom it must be sold and the proceeds paid into the county treasury.

1412. When money or other property is taken from a defendant, arrested upon a charge of a public offense, the officer taking it must at the time give duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken; one of which receipts he must deliver to the defendant and the other of which he must forthwith file with the clerk of the court to which the depositions and statement are to be sent. When such property is taken by a police officer of any incorporated city or town, he must deliver one of the receipts to the defendant, and one, with the property, at once to the clerk or other person in charge of the police office in such city or town.

1413. The clerk in, or person having charge of, the police office in any incorporated city or town, must enter in a suitable book a description of every article of property alleged to be stolen or embezzled, and brought into the office or taken from the person of a prisoner, and must attach a number to each article, and make a corresponding entry thereof.

CHAPTER XIII.

REPRIEVES, COMMUTATIONS, AND PARDONS.

§ 1417. Governor may grant reprieves, commutations, and pardons. His power in respect to convictions for treason.

§ 1418.

§ 1419.

To communicate to the Legislature reprieves, commutations, and pardons.

§ 1420. Report of case, how and from whom required.

§ 1421. Notice to district attorney of application for pardon.

§ 1422. Publication of notice.

1423. When two preceding sections are not applicable.

1417. The governor has power to grant reprieves, commutations, and pardons after conviction, for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to the regulations provided in this chapter.

Pardoning power.-The pardoning power, whether exercised under the Federal or State Constitution, is the same in its nature and effect as that exercised by the representatives of the English crown in this country in the colonial times-43 Cal. 439. See Fed. Const. art. ii, $ 2, subd. 1; Const. of Cal. art. vii, § 1. A pardon is an act of grace from the power intrusted with the execution of the laws, exempting from punishment which the law inflicts-43 Cal. 439; 7 Peters, 159. The word" pardon" must be construed with reference to its meaning at the time of the adoption of the Constitution-7 Peters, 162; 3 Dall. 386; 5 Peters, 264; 8 id. 75; 17 How. 456; 18 id. 316; 1 Abb. U. S. 115; 2 id. 150. It is construed like a grant, most favorably to the grantee-10 Ark. 284; 1 Strob. 160. The power to pardon extends to all kinds of pardons known to the law as such, either general, special, conditional, or absolute-18 How. 314; 4 Wall. 380.

Where the condition of a pardon is that defendant shall leave the State, and he either does not leave, or, having left, returns, the original sentence revives, and may be enforced-8 Watts & S. 197; 1 Strob. 347; 1 Parker Cr. R. 47; 18 How. 307; but if the time for departure is specified in the pardon, it does not begin to run during sickness or incapacity-2 Caínes, 57. A pardon with a condition precedent, does not operate until the condition is performed-8 Watts & S. 197. The governor may pardon as well before as after trial-7 Watts, 152; 45 Pa. St. 372; 46 id. 357; or, may grant a conditional pardon-8 Watts & S. 197; 1 Bail. 283; 2 id. 516; 1 Parker Cr. R. 47; 18 How. 314; or, he may pardon after the prisoner has suffered the punishment adjudged for his crine-43 Cal. 439.

His power to reprieve does not depend on his constitutional power to pardon, the designation of the time for execution being no part of

the sentence-17 N. H. 545. A pardon is a release of all fines or imprisonment for the offense-28 Pa. St. 297; 2 Phila. 256; but not of costs -2 Whart. 440; 46 Pa. St. 446; 43 id. 53; and of such fines and penalties as were payable to the State-3 id. 126; but the pardoning power cannot decree a repayment of a fine-3 Dutch. 637; and without words of restitution, it does not restore forfeited estates-3 Grant Cas. 158. It may remit a forfeited recognizance after judgment-9 Watts, 142.

The pardoning power is lodged in the executive-13 Wall. 128; 8 Blackf. 229; 1 Abb. U. S. 116; 1 Nott. & McC. 26; 1 Mason, 431; 3 Opin. Att.-Gen. 622. Delivery is essential to give effect to a pardon-3 Ben. 320; 41 Pa. St. 210; 7 Peters, 150; 8 Blatchf. 89. Until delivery, a pardon, though signed and sealed, may be recalled and canceled by the executive or his successor in office-3 Ben. 307. A pardon must be proved by the production of the warrant itself, or its loss must be accounted for-6 Watts, 338; 1 Grant Cas. 329. It removes the disability to testify-43 Cal. 439. See as to its effect-20 Wall. 468; 16 id. 151; 13 id. 154; id. 128; id. 156; 9 id. 531; 2 Abb. U. S. 148. A pardon obtained by fraud is void, and may be revoked before actual delivery-3 Ben. 307; 43 Pa. St. 53.

1418. He may suspend the execution of the sentence, upon a conviction for treason, until the case can be reported to the Legislature at its next meeting, when the Legislature may either pardon, direct the execution of the sentence, or grant a further reprieve; provided, that neither the governor nor the Legislature shall have power to grant pardons or commutations of sentence in any case where the convict has been twice convicted of felony, after the first day of January, eighteen hundred and eighty, unless upon the written recommendation of a majority of the judges of the Supreme Court. [In effect February 18th, 1880.]

1419. He must, at the beginning of every session, communicate to the Legislature each case of reprieve, commutation, or pardon, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon, or reprieve, and the reasons for granting the same. [In effect February 18th, 1880.]

1420. When an application is made to the governor for a pardon, he may require the judge of the court before which the conviction was had, or the district attorney by whom the action was prosecuted, to furnish him, without delay, with a statement of the facts proved on

PEN. CODE.-49.