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Ah Duck, 61 Id. 387 So, also, in overruling form had been misplaced: People v. O'Brien, an objection to an indictment for grand larceny, 64 Id. 53. in which the concluding words of the statutory

961. Presumptions of law, etc., need not be stated.

SEC. 961. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or information. [Amendment, approved April 9, 1880; Amendments 1880, 14 (Ban. ed. 160); took effect immediately.] 962. Judgments, etc., how pleaded.

SEO. 962. In pleading a judgment or other determination of or proceeding before a court or officer of special jurisdiction, it is not necessary to state the facts constituting jurisdiction; but the judgment or determination may be stated as given or made, or the proceedings had. The facts constituting jurisdiction, however, must be established on the trial.

963. Private statutes, how pleaded.

SEO. 963. In pleading a private statute, or a right derived therefrom, it is sufficient to refer to the statute by its title and the day of its passage, and the court must thereupon take judicial notice thereof.

Reciting private statutes.—At the common law a private or other statute of which the courts did not judicially know, must be recited in an indictment founded upon it: Bishop on

964. Pleading in indictment for libel.

Statutory Crimes, secs. 396, 405, 406; 1 Bish. Crim. Proc., sec. 609. Under this section it is sufficient to refer to such statute by its title and day of passage.

SEC. 964. An indictment or information for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter on which the indictment or information is founded; but it is sufficient to state generally that the same was published concerning him, and the fact that it was so published must be established on the trial. [Amendment, approved April 9, 1880; Amendments 1880, 14 (Ban. ed. 160); took effect immediately.]

See sec. 248, note.

965. Pleading in indictment or information for forgery, where instrument destroyed or withheld by defendant.

SEC. 965. When an instrument which is the subject of an indictment or information for forgery has been destroyed or withheld by the act or the procurement of the defendant, and the fact of such destruction or withholding is alleged in the indictment or information, and established on the trial, the misdescription of the instrument is immaterial. [Amendment, approved April 9, 1880; Amendments 1880, 14 (Ban. ed. 160); took effect immediately.1

See sec. 959, in note, and sec. 470, note.

966. Pleading in an indictment or information for perjury or subornation of perjury.

SEC. 966. In an indictment or information for perjury or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court and before whom the oath alleged to be false was taken, and that the court, or the person before whom it was taken, had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment or information need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission or authority of the court

or person before whom the perjury was committed. [Amendment, approved April 9, 1880; Amendments 1880, 14 (Ban. ed. 160); took effect immediately.] See seos. 959 in note, 118 and note, 127 and Information for perjury: See People v. note. Kelly, 59 Cal. 372.

967. Pleading in indictment or information for larceny or embezzlement. SEC. 967. In an indictment or information for the larceny or embezzlement of money, bank notes, certificates of stock, or valuable securities, or for a conspiracy to cheat or defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock, or valuable securities, without specifying the coin, number, denomination, or kind thereof. [Amendment, approved April 9, 1880; Amendments 1880, 15 (Ban. ed. 160); took effect immediately.]

See secs. 959, notes, 484, note, 503, note;

Sufficient information: See People v. People v. Cox, 40 Cal. 275; People v. Nelson, Flores, 64 Cal 426. 56 Id. 77.

968. Pleading in indictment or information for selling, etc., lewa and obscene books. SEC. 968. An indictment or information for exhibiting, publishing, passing, selling, or offering to sell, or having in possession, with such intent, any lewd or obscene book, pamphlet, picture, print, card, paper, or writing, need not set forth any portion of the language used or figures shown upon such book, pamphlet, picture, print, card, paper, or writing; but it is sufficient to state generally the fact of the lewdness or obscenity thereof. [Amendment, approved April 9, 1880; Amendments 1880, 15 (Ban. ed. 160); took effect immediately.] See secs. 666, note, and 667, and note.

969. Prior conviction of another offense.
Section 969, relating to previous conviction
of another offense, was repealed by act of April
9, 1880; Amendments 1880, 15 (Ban. ed. 161);
took effect immediately.

The repealed section was as follows: "Sec. 969. In charging in an indictment the fact of a previous conviction of a felony, or of an attempt to commit an offense which, if perpe trated, would have been a felony, or of petit larceny, it is sufficient to state: That the defendant, before the commission of the offense charged in this indictment, was in [giving the title of the court in which the conviction was had] convicted of a felony [or attempt, etc., or of petit larceny].' If more than one previous conviction be charged in the indictment, the date of the judgment upon each conviction shall be stated, and not more than two previ

ous convictions shall be charged in any one in dictment; Amendment, approved March 30, 1874; Amendments 1873-4, 438; took effect July 1, 1874."

Effect of this repeal: See People v. Boyle, 64 Cal. 153; People v. Lewis, Id. 401; People v. King, Id. 338. Say the court in this last case: "It is necessary, since the repeal of sections 969 and 1025 of the Penal Code, in proceeding against him [accused] by indictment or information, not only to charge the facts of the previous conviction and subsequent commission of crime, but to prove them. The defendant must plead to both charges; and upon the issue raised by his plea both must be proved on his trial and be passed upon by the jury. There is no other mode of proving the facts."

970. Indictment against several, one or more may be acquitted.

SEC. 970. Upon an indictment or information against several defendants, any one or more may be convicted or acquitted. [Amendment, approved April 9, 1880; Amendments 1880, 15 (Ban. ed. 161); took effect immediately.] Presumption of defendant's innocence. If two persons be jointly or severally indicted for the same offense, the conviction of one does

not raise the presumption that the other is innocent: People v. Johnson, 47 Cal. 122.

971. Distinction between accessary before the fact and principal abrogated. SEO. 971. The distinction between an accessary before the fact and a principal, and principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commis

sion, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment or information against such an accessary than are required in an indictment or information against his principal. [Amendment, approved April 9, 1880; Amendments 1880, 15 (Ban. ed. 161); took effect immediately.]

Principals: Sec. 31, note; see People v. Valenzuella, 6 Pac. C. L. J. 561.
Accessaries: Secs. 32, note, 959 in note.

972. Accessary may be indicted and tried though principal has not been.

SEO. 972. An accessary to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted. [Amendment, approved April 9, 1880; Amendments 1880, 15 (Ban. ed. 161); took effect immediately.] Principals: Sec. 31, note. Accessaries: Secs. 32, note, 959 in note.

TITLE VI.

OF PLEADINGS AND PROCEEDINGS AFTER INDICTMENT AND BEFORE THE COMMENCEMENT OF THE TRIAL.

CHAPTER I. OF THE ARRAIGNMENT OF THE DEFENDANT,

976

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V.

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

1028

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VIII.

FORMATION OF THE TRIAL JURY AND THE CALENDAR OF ISSUES
FOR TRIAL...

1046

IX.

1052

POSTPONEMENT OF THE TRIAL.

CHAPTER I.

OF THE ARRAIGNMENT OF THE DEFENDANT.

1176. Defendant must be arraigned in court where indictment or information was found.

SEC. 976. When the indictment or information is filed, the defendant must le arraigned thereon before the court in which it is filed, unless the cause is transferred to some other county for trial. [Amendment, approved April 9, 1880; Amendments 1880, 15 (Ban. ed. 161); took effect immediately.]

The amendments of April 9, 1880, in this chapter simply conform the sections to the proceeding by information.

Arraignment: Sec. 988, note.

Change of venue: Sec. 1033, note.

See construction of the above section in determining that superior courts have not jurisdiction of cases of petit larceny: Ex parte Wallingford, 60 Cal. 103, 105.

977. Defendant, when to be present at arraignment.

SEC. 977. If the indictment or information be for a felony, the defendant must be personally present; but if for a misdemeanor, he may appear upon the arraignment by counsel. [Amendment, approved April 9, 1880; Amendments 1880, 16 (Ban. ed. 161); took effect immediately.]

Arraignment: Sec. 988, note.

Plea by defendant: Sec. 1016, note.
Plea by attorney: Sec. 1016, note.

Personal attendance at trial: Sec. 1043, note. Trial in absence of defendant: Sec. 1181, note.

978. If in custody, to be brought before court.

SEC. 978. When his personal appearance is necessary, if he is in custody, the court may direct, and the officer in whose custody he is must bring him before it to be arraigned.

Personal attendance.-In all cases amounting to a felony, the defendant must appear and plead in person, and must be personally present at the trial: Secs. 1016, note, 1043, note. If for a misdemeanor he may plead by counsel, and the trial may proceed in his absence: Id.

A failure to appear at the trial, when the charge is a misdemeanor, either in person or by counsel, does not authorize the court to declare the bond given for such appearance forfeited: People v. Ebner, 23 Cal. 158; People v. Budd, 51 Id. 349.

979. If discharged on bail, bench-warrant to issue.

SEC. 979. If the defendant has been discharged on bail, or has deposited money instead thereof, and do not appear to be arraigned when his personal attendance is necessary, the court, in addition to the forfeiture of the undertaking of bail or of the money deposited, may direct the clerk to issue a benchwarrant for his arrest.

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

SEC. 980. The clerk, on the application of the district attorney, may, at any time after the order, whether the court is sitting or not, issue a bench-warrant to one or more counties.

981. Form of bench-warrant.

SEC. 981. The bench-warrant upon the indictment or information must, if the offense is a felony, be substantially in the following form: County of The people of the state of California to any sheriff, cònstable, marshal, or policeman in this state: An indictment having been found (or information filed) in the superior court of the county (designating it generally); you

on the

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- day of

A. D. eighteen

of —, charging C D with the crime of are therefore commanded forthwith to arrest the above-named C D, and bring him before that court (or if the indictment and information has been sent to another court, then before that court, naming it), to answer said indictment (or information), or if the court be not in session, that you deliver him into the custody of the sheriff of the county of Given under my hand, with the seal of said court affixed, this

A. D.

By order of said court. ·

day of

E F, Clerk.

[SEAL.] [Amendment, approved April 9, 1880; Amendments 1880, 16 (Ban. ed. 161); took effect immediately.]

982. Directions in the bench-warrant if the offense is bailable.

SEC. 982. The defendant, when arrested under a warrant for an offense not bailable, must be held in custody by the sheriff of the county in which the indictment is found or information filed, unless admitted to bail after an examination upon a writ of habeas corpus; but if the offense is bailable, there must be added to the body of the bench-warrant a direction to the following effect: "Or, if he requires it, that you take him before any magistrate in that county, or in the county in which you arrest him, that he may give bail to answer to the indictment (or information); " and the court, upon directing it to issue, must fix the amount of bail, and an indorsement must be made thereon and signed

by the clerk, to the following effect: "The defendant is to be admitted to bail in the sum of dollars." [Amendment, approved April 9, 1880; Amendments 1880, 16 (Ban. ed. 162); took effect immediately.] Entitled to release from arrest upon bench-warrant. A party who has been in dicted for a bailable offense, and is under arrest on a bench-warrant, on which an order is indorsed directing the accused to be admitted to

983. Bench-warrant, how served.

bail in a specified sum, is entitled to be discharged upon executing a bond in proper form and for the prescribed amount. No indorsement of approval on the bond is necessary: People v. Penniman, 37 Cal. 271.

SEC. 983. The bench-warrant may be served in any county, in the same manner as a warrant of arrest, except that when served in another county it need not be indorsed by the magistrate of that county.

984. Proceeding on giving bail in another county.

SEC. 984. If the defendant is brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings must be had thereon.

Arrests: Secs. 841-851, and notes; see Ex parte Hung Sin, 54 Cal. 102.

985. Ordering defendant into custody or increasing bail when indictment is for felony.

SEO. 985. When the information or indictment is for a felony, and the defendant, before the filing thereof, has given bail for his appearance to answer the charge, the court to which the indictment or information is presented, or in which it is pending, may order the defendant to be committed to actual custody, unless he gives bail in an increased amount, to be specified in the order. [Amendment, approved April 9, 1880; Amendments 1880, 16 (Ban. ed. 162); took effect immediately.]

986. Defendant, if present, when order made, to be committed; if not, bench-warrant to issue.

SEC. 986. If the defendant is present when the order is made, he must be forthwith committed. If he is not present, a bench-warrant must be issued and proceeded upon in the manner provided in this chapter.

987. Defendant, on arraignment, to be informed of his right to counsel.

SEC. 987. If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him.

Right to have counsel: Article 6 of the amendments to the constitution of the United States; art. 1, sec. 13, state constitution. In Rowe v. Yuba County, 17 Cal. 62, approved in Lamont v. Solano County, 49 Id. 158, it was held "part of the general duty of counsel to render professional services to persons accused of crime who are destitute of means, upon the appointment of the court, when not inconsistent with their obligations to others," and that at

988. Arraignment, how made.

torneys who render such services cannot recover any compensation therefor from the county.

The accused ought to be informed of his right to counsel at the commencement of the proceedings of arraignment; yet the arraignment will not be void if he is so informed in the course of the arraignment: People v. Villarino, 4 West Coast Rep. 693.

SEC. 988. The arraignment must be made by the court, or by the clerk or district attorney under its direction, and consists in reading the indictment or information to the defendant and delivering to him a copy thereof, and of the indorsements thereon, including the list of witnesses, and asking him whether

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