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933. If facts stated in presentment constitute public offense, court must direct bench

warrant.

SEC. 933. If the facts stated in the presentment constitute a public offense, triable in the county, the court must direct the clerk to issue a bench-warrant for the arrest of the defendant.

934. Bench-warrant, by whom and how issued.

SEC. 934. The clerk, on the application of the judge or district attorney. may, accordingly, at any time after the order, whether the court be sitting or not, issue a bench-warrant, under his signature and the seal of the court, into one or more counties.

935. Form of bench-warrant.

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SEC. 935. The bench-warrant, upon presentment, must be substantially in the following form: County of. The people of the state of California to any sheriff, constable, marshal, or policeman in this state: A presentment having been made on the day of, eighteen, to the superior court of the county of charging CD with the crime of (designating it generally), you are therefore commanded forthwith to arrest the above-named CD, and to take him before E F, a magistrate of this county; or in case of his absence or inability to act, before the nearest and most accessible magistrate in this county. Given under my hand, with the seal of said court affixed, this day of, A. D. eighteen By order of the court. [Seal.] G H, Clerk. [Amendment, approved April 12, 1880; Amendments 1880, 34 (Ban. ed. 200); took effect immediately.]

936. Bench-warrant, how served.

SEC. 936. The bench-warrant may be served in any county, and the officer serving it must proceed thereon as upon a warrant of arrest on an information, except that when served in another county it need not be indorsed by a magistrate of that county.

937. Proceedings of magistrate on defendant being brought before him.

SEC. 937. The magistrate, when the defendant is brought before him, must proceed upon the charges contained in the presentment, in the same manner as upon a warrant of arrest on an information.

TITLE V.

OF THE INDICTMENT.

CHAPTER I. FINDING AND PRESENTMENT OF THE INDICTMENT....
II. RULES OF PLEADING AND FORM OF THE INDICTMENT.

CHAPTER I.

FINDING AND PRESENTMENT OF THE INDICTMENT.

940. Indictment must be found by twelve jurors, indorsed, etc.

940

948

SEO. 940. An indictment cannot be found without the concurrence of at least twelve grand jurors. When so found, it must be indorsed, "A true bill," and the indorsement must be signed by the foreman of the grand jury.

Grand jurors-Number present to find indictment.-Although it is absolutely necessary, in order to put a defendant on trial, that

an indictment should be concurred in by at least twelve grand jurors, it is equally as well settled in this state that the whole number re

quired by law to form a grand jury need not be present at the finding of an indictment. It is sufficient if twelve concur in the finding, although less than the statutory number composing the grand jury were present at the time. In People v. Roberts, 6 Cal. 214, under the act of 1856, which provided that "if, of the persons summoned, not less than seventeen nor more than twenty-three attend, they shall constitute the grand jury," it was held that all the seventeen need not be present at the finding of an indictment, if twelve concurred in the finding. So in People v. Butler, 8 Id. 440, it was said: "If twelve concur in finding an indictment, it is not perceived how a prisoner can be injured by the absence of the others who were impaneled." People v. Gatewood, 20 Id. 147, and People v. Hunter, 54 Id. 65, are to the same effect. In People v. Thurston, 5 Id. 69, an indictment found by twenty-four persons, when the statute limited the number to twentythree, was held worthless, and all proceedings based upon it were declared void: See also People v. Gray, 61 Id. 164. "There is no evidence that it [the indictment] was not found by the constitutional number, twelve."

"A true bill."-Every indictment should be certified to be a true bill by an indorsement thereon in those words, signed by the foreman. An indictment not so certified is invalid, and will be set aside on motion: Sec. 995; People v. Lawrence, 21 Cal. 368; People v. Johnston, 48 Id. 549. After plea, however, this objection is waived, such indorsement being held, in this state, not essential to the legality and sufficiency of the indictment: People v. Lawrence, supra. In other states a failure to comply

with this requirement is held fatal, even after verdict: Webster's Case, 5 Me. 432; Nomaque v. People, Breese, 145; Commonwealth v. Walters, 6 Dana, 290. In New Hampshire a different rule prevails, and such indorsement is not necessary: State v. Freeman, 13 N. H. 488; also in Massachusetts: Commonwealth v. Smyth, 11 Cush. 473. Where the indorsement was "true bill," instead of "a true bill," it was held sufficient: State v. Elkins, Meigs, 109; State v. Davidson, 12 Vt. 300. So where there was no indorsement on the indictment, but those words were written on a paper in which the indictment was folded, it was held sufficient: Burgess v. Commonwealth, 2 Va. Cas. 483. Foreman must sign.-In many of the states an indictment, to be valid, must be signed by the foreman of the grand jury: Commonwealth v. Sargent, Thach. Crim. Cas. 116; State v. Davidson, 12 Vt. 300; State v. Squire, 10 N. H. 558; Gardiner v. People, 3 Scam. 83. It is a sufficient signing if the foreman, in affixing his signature, makes use of only the initials of his christian name: State v. Taggart, 38 Me. 298. So where an indictment was signed "A. B.," the foreman, and the letters "F. G. J.” were added, they were held sufficient to indicate that he acted as foreman, it appearing from the record that A. B. was in fact foreman of the grand jury when the bill was found: State v. Chandler, 2 Hawks, 439. In North and South Carolina, Missouri, and Georgia, the foreman need not sign an indictment: State v. Creighton, 1 Nott & M. 256; State v. Cox, 6 Ired. L. 440; State v. Mertens, 14 Mo. 94; McGuffie v. State, 17 Ga. 497.

941. If not found, depositions, etc., must be returned to court, etc.

SEC. 941. If twelve grand jurors do not concur in finding an indictment against a defendant who has been held to answer, the depositions and statement, if any, transmitted to them must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed.

How indorsed-This section provides how Setting aside indictment because not an indictment shall be indorsed: People v. indorsed, etc.: Sec. 995, note. Colby, 54 Cal. 38.

942. Effect of dismissal.

SEC. 942. The dismissal of the charge does not prevent its resubmission to a grand jury as often as the court may direct. But without such direction it cannot be resubmitted.

Resubmission of charge.-A defendant who has been held to answer upon a criminal charge, and who is not indicted by the grand jury at the term of court next after his committment, is entitled to be discharged, unless good cause be shown for his further detention. A mere recommendation by the grand jury that his case be submitted to the next, is not suthcient cause for his detention: Ex parte Bull, 42 Cal. 196; Ex parte Clarke, 54 Id. 412. His discharge by the court, however, does not pre

vent him from being again arrested and examined for the same offense: Ex parte Cahill, 52 Id. 463. Such dismissal is in the nature of a judgment of nonsuit, and as the defendant in such case has never been put in jeopardy, within the meaning of the constitution, he may be again prosecuted for the same offense: Ex parte Clarke, 54 Id. 412. An order of resubmission is not an appealable order: People v. Clarke, 42 Id. 622.

943. Names of witnesses inserted at foot of indictment.

SEO. 943. When an indictment is found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before

them, must be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the court.

Indorsement of names of witnesses on indictment. Unless the names of the witnesses examined before the grand jury are indorsed on or inserted at the foot of the indict ment it will be set aside on motion: Sec. 995, note. This objection must be taken before the defendant pleads, or it is waived: Sec. 996; People v. Freeland, 6 Cal. 96; People v. Sy monds, 22 Id. 348; People v. Lopez, 26 Id. 112; People v. King, 28 Id. 266. A person may be sworn and examined as a witness on the trial although his name is not indorsed on the indictment, and although he may have been a

944. Indictment, how presented and filed.

witness before the grand jury: People v. Freeland, 6 Id. 96; People v. Lopez, 26 Id. 112; People v. Symonds, 22 Id. 348. So a person who was not examined before the grand jury, and whose name is not indorsed on the indictment, may be a witness for the prosecution on the trial: People v. Jocelyn, 29 Id. 562. The name indorsed was F. Diefenbach, while the witness was G. Diefenbach; this was held insufficient to warrant the denying a motion to set aside the indictment: People v. Crowey, 56 Id. 36.

SEC. 944. An indictment, when found by the grand jury, must be presented by their foreman, in their presence, to the court, and must be filed with the

clerk.

Presented to court. It will be presumed that an indictment was presented to the court by the foreman of the grand jury, and in their presence, although that fact is not indorsed upon it, unless the contrary appear from the record of the court: People v. Blackwell, 27 Cal. 65. The conclusion of the grand jury is evidenced by the presentation to the court of an indictment, or by a return of the papers from the committing magistrate, if any have been delivered to them, with an indorsement that

the charge is dismissed: People v. Lawrence, 21 Id. 373. If no papers from the committing magistrate have been in their hands, their judgment upon the complaint is indicated by the fact that no indictment is returned: Id. If an indictment is not presented in the manner prescribed in this code, it may be set aside on motion: People v. Southwell, 46 Id. 148. The manner of presenting an indictment to the court is prescribed by this section: People v. Colby, 54 Id. 38.

945. Proceedings when defendant not in custody.

SEC. 945. When an indictment is found against a defendant not in custody, the same proceedings must be had as are prescribed in sections nine hundred and seventy-nine to nine hundred and eighty-four, inclusive, against a defendant who fails to appear for arraignment. Defendant not in custody.-Courts have no jurisdiction over persons charged with crime, unless in custody, actual or constructive. It would be a farce to proceed in a criminal cause unless the court had control over the person

charged, so that its judgment might be made effective. An indictment may, however, be found against one not in custody, but unless an arrest is effective, the cause can proceed no further: People v. Redinger, 55 Cal. 298.

CHAPTER II,

RULES OF PLEADING AND FORM OF THE INDICTMENT.

948. Form of and rules of pleading.

SEC. 948. All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this code.

Rules of criminal pleadings.-The estab lished rule of the common law, that penal statutes should receive a strict construction in favor of him upon whom a penalty was to be inflicted, has been abrogated by this code: See sec. 4, note; Ex parte Gutierrez, 45 Cal. 429. The above rule is applicable as well to sections merely regulating matters of practice as to those which define what constitutes an offense: See sec. 1404, note. In People v. Clarke, 7 Pac. C. L. J. 177, it was held that an information which was inartificially drawn, but which stated the substance of the offense, was good. In People v. King, 27 Cal. 507, it was said that our criminal code was designed to work the

same change in pleading and practice in crimi. nal actions that is wrought by the Code of Civil Procedure in civil actions, and that therefore it was not always necessary to state the facts constituting the offense with the same particularity as was required in indictments by the common law. To the same effect is People Cronin, 34 Id. 191. The test of sufliciency of pleadings is found in the codes themselves: People v. Murphy, 39 Id. 52; People v. Dick, 37 Id. 277; People v. Ah Woo, 28 Id. 205; see also People v. Sandford, 43 Id. 29.

Bill of particulars of evidence relied on by the prosecution cannot be demanded by the defense: People v. Alviso. 55 Cal. 230.

949. First pleading by the people is indictment or information.

SEC. 949. The first pleading on the part of the people is the indictment or information. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 158); took effect immediately.]

The amendments of April 9, 1880, to the various sections of this chapter simply conform the reading to the proceeding by information. Information: See sec. 809, note; cited generally, People v. Carlton, 57 Cal. 561; Kalloch v. Superior Court, 56 Id. 229; People v. Tisdale, Id.

727; People v. Williams, Id. 819; People v. Carlton, 7 Id. 108.

Indictment: See sec. 959, and notes. Signing. The name of the district attorney may be subscribed by his deputy: People v. Darr, 61 Cal. 554.

950. Indictment or information, what must contain.

SEO. 950. The indictment or information must contain:

1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties;

2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 158); took effect immediately.]

Indictment defined: Sec. 917.

Title of the action.—An indictment or iuformation filed in San Francisco may be entitled either as of the county of San Francisco, or as of the city and county of San Francisco: People v. Connor, 17 Cal. 354; People v. Beatty, 14 Id. 566.

Name of parties.-Omitting the name of the county in the title is a technical defect not affecting the substantial rights of the defendant: People v. Biggins, 3 West Coast Rep. 678. If defendant be not indicted by his true name, he must declare his true name when arraigned, and if he do not, he may properly be proceeded against by the name in the indictment: Sec. 989. The addition "Jr." is no part of a name proper; and when it does not appear that there were two persons of the name, or that the party

951. Form of indictment.

was misled, its insertion in a criminal complaint is immaterial: City and County of San Francisco v. Randall, 54 Cal. 408. Where the indictment was against James B. Boggs, and the verdict pronounced "the defendant J. M. Boggs" guilty: Held, that the error in the initial of the middle name of defendant in the verdict was immaterial: People v. Boggs, 20 Id. 432.

The mere omission of the initial of the middle name of the defendant is immaterial, it not in any way prejudicing him: People v. Ferris, 56 Cal. 442, citing People v. Boggs, supra, and People v. Lockwood, 6 Id. 205; see also secs. 953, 956.

Statement of acts constituting offense: Sec. 959, note.

SEC. 951. It may be substantially in the following form: The people of the state of California against A B, in the superior court of the county of the

day of

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A. D. eighteen

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A B is accused by the grand jury of the county of by this indictment (or by the district attorney by this information), of the crime of (giving its legal appellation, such as murder, arson, or the like, or designating it as felony or misdemeanor), committed as follows: The said A B, on the day of, A. D. eighteen A. D. eighteen —, at the county of (here set forth the act or omission charged as an offense), contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of California. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 158); took effect immediately.]

See also sec. 959.

Caption omitting county: See note to previous section.

Conclusion sufficient: See People v. Biggins, 3 West Coast Rep. 678, where the objec

tion that the information stated the deceased to have died contra formam, etc., and not that the acts of the defendant were contrary, etc., was held hypercritical.

952. Indictment must be direct and certain.

SEC. 952. It must be direct and certain as it regards:

1. The party charged;

2. The offense charged;

3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.

Indictment when sufficient: See sec. 959, note. If the indictment be direct and certain as to the party charged, the offense charged, and states the particular circumstances which constitute the offense in ordinary and concise language, and in such a way that a person of ordinary understanding can know what was intended, it is sufficient: People v. Saviers, 14 Cal. 29. If the indictment does not state the particular circumstances, when they are necessary to constitute a complete offense, the de

fendant may demur on that ground; but if he fails to demur, a motion in arrest of judgment will be denied: People v. Swenson, 49 Id. 388. But see People v. Martin, 52 Id. 201. Where the offense charged admits of degrees, the indictment should charge the offense generally, and leave the degree to be determined by the verdict: People v. Jefferson, Id. 452; see also sec. 921, note.

Names of parties: See note to sec. 950.

953. When defendant is indicted by fictitious name, etc.

SEC. 953. When a defendant is charged by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, referring to the fact of his being charged by the name mentioned in the indictment or information. [Amendment, approved April 9, 1880; Amendments 1880, 13 (Ban. ed. 158); took effect immediately.]

Indictment by wrong name.-In People v. Kelly, 6 Cal. 210, it was urged in argument that the above section was in violation of the constitution; that in ordering the true name to be inserted upon the minutes the court altered the indictment in a material part, so that it was no longer an indictment found and presented by a grand jury. The court, however,

held the section to be constitutional, the particular name by which defendant is designated being immaterial. See also People v. Jim Ti, 32 Id. 60; People v. Ah Kim, 34 Id. 189; and see in note to sec. 951.

Inserting true name, illustration of this practice: See People v. Le Roy, 3 West Coast Rep. 785.

954. What indictment or information must charge.

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SEC. 954. The indictment or information must charge but one offense, the same offense may be set forth in different forms under different counts, and when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count. [Amendment, approved April 9, 1880; Amendments 1880, 13 (Ban. ed. 158); took effect immediately.]

Objection, how taken: See sec. 1004, note. The objection to the indictment or information that two offenses are charged therein, or that the offense is charged in more than one form, must be taken by demurrer, otherwise it is waived: People v. Weaver, 47 Cal. 106; People v. Burgess, 35 Id. 115; People v. Garnett, 29 Id. 622; People v. Connor, 17 Id. 354. For an instance where the demurrer ought to have been sustained, see People v. Quvise, 56 Id. 396. The objection should be raised by special demurrer, where the pleading does not comply with sections 950, 951, and 952; general demurrer or motion in arrest will not reach the defect: People v. Feilen, 58 Id. 218.

Indictments charging more than one of fense: See a valuable note to Ben v. State, 58 Am. Dec. 238-240. An indictment which charges the defendant with the murder of three persons charges three offenses: People v. Alibez, 49 Cal. 452. Where an indictment charged an officer of a corporation with concurring in the making of a statement of its condition which was false, and also with concurring in the publication of such false statement, a demurrer that the indictment charged more than one offense was sustained: People v. Cooper, 53 Id. 647. So also an indictment which charges burglary mixed with larceny was held to charge two offenses; People v. Garnett, 29 Id. 622.

And where it is charged that one person stole the goods and another feloniously received them, knowing them to be stolen, two offenses are charged, and against different persons: People v. Hawkins, 34 Id. 181. If an indictment for forgery contains two counts, each containing a copy of the instrument alleged to have been forged, it will not be presumed, in the absence of an averment, that both are copies of one and the same instrument: People v. Shotwell, 27 Id. 394. If the indictment contains more than one count, it must plainly appear on its face that the matters set forth in the different counts are but different descriptions of one and the same transaction: People v. Thompson, 28 Id. 214. An indictment which charged both burglary and house-breaking was held to charge two offenses: People v. Taggart, 43 Id. 81. Larceny and embezzlement cannot be united in one information: People v. De Coursey, 61 Cal. 135; and see People v. Quvise, 56 Id. 396.

Indictments charging one offense only. The name given in the indictment to the offense charged is not of itself a charge of the offense, and a mistake in regard to it is not fatal. Where the indictment recited that defendant was accused therein of the crime of "assault with intent to commit murder," and then proceeded to state facts which showed that defendant had administered poison with intent to kill,

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