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he pleads guilty or not guilty to the indictment or information. [Amendment, approved April 9, 1880; Amendments 1880, 16 (Ban. ed. 162); took effect immediately.]

Valid arraignment under this and the next section: See People v. Villarino, 4 West Coast Rep. 693.

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Arraignment for previous conviction may be made under this section since the repeal of sections 969 and 1025: People v. Brooks, 3 West Coast Rep. 53; People v. Lewis, 64 Cal. 401. Arraignment.-Defined by Bouvier to be "calling the defendant to the bar of the court to answer the accusation contained in the indictment:" Bouv. Law Dict., tit. Arraignment. At the common law, the defendant was called to the bar by his name, and directed to hold his hand. This was done for the purpose of identifying the prisoner as the person named in the indictment. The holding up the hand was a mere ceremony, and is not required at the present time. The defendant simply stands up, and his name is obtained as provided in section 999. Silence or a refusal to speak is alike an admission of the name as his true name, and by it he may be proceeded against. The indictment is then read to the defendant to enable him fully to understand the charge made against him. The reading must be so that he may distinctly hear it, including the indorsements. If the identity of the name is not already determined, it is then done, and a

proper record of the proceedings to identify the name made. The officer who reads the indictment, or the court, then addressing the defendant by the name fixed as his true name, who is still standing, says to him: "How say you, A B; are you guilty or not guilty?" I Archb. Crim. 330. Whatever the plea of the defendant, it is entered and proceeded upon as provided in sections 1016–1024, post. The defendant is entitled to a copy of the indictment or information, but if upon his arraignment he asks for time to plead, he thereby waives any defect in the statutory detail of the proceedings which constitute an arraignment, such as a failure to deliver a copy of the indictment: People v. Lightner, 49 Cal. 226. There must, however, be an arraignment and plea: People v. Corbett, 28 Id. 328; People v. Gaines, 52 Id. 479; Grigg v. People, 31 Mich. 471; sec. 1016, note. In cases of felony the arraignment must be in person: Sec. 977; but if the offense with which the defendant is charged is only a misdemeanor, the plea may be by counsel: Sec. 1016, note. The defendant does not waive an arraignment and plea by submitting to a trial: People v. Corbett, 28 Cal. 328; but see Molihan v. State, 30 Ind. 266; State v. Cassidy, 12 Kan. 551.

989. Proceedings on arraignment when defendant is not indicted by his true

name.

SEC. 989. When the defendant is arraigned he must be informed that if the name by which he is prosecuted is not his true name, he must then declare his true name, or be proceeded against by the name in the indictment or information. If he gives no other name, the court may proceed accordingly; but if he alleges that another name is his true name, the court must direct an entry thereof in the minutes of the arraignment, and the subsequent proceedings on the information or indictment may be had against him by that name, referring also to the name by which he was first charged therein. [Amendment, approved April 9, 1880; Amendments 1880, 17 (Ban. ed. 162); took effect immediately.] Arraignment: See 989, note.

Indictment by wrong name: Secs. 950, note, 953, note.

990. Time allowed, and how defendant may answer on arraignment.

SEC. 990. If, on the arraignment, the defendant requires it, he must be allowed a reasonable time, not less than one day, to answer the indictment or information. He may, in answer to the arraignment, move to set aside, demur, or plead to the indictment or information. [Amendment, approved April 9, 1880; Amendments 1880, 17 (Ban. ed. 163); took effect immediately.]

CHAPTER II.

SETTING ASIDE THE INDICTMENT.

995. Indictment or information when set aside on motion.

SEC. 995. The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following

cases. If it be an indictment:

1. Where it is not found, indorsed, and presented as prescribed in this code;

2. When the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, are not inserted at the foot of the indictment, or indorsed thereon;

3. When a person is permitted to be present during the session of the grand jury, and when the charge embraced in the indictment is under consideration, except as provided in section nine hundred and twenty-five;

4. When the defendant had not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge, either to the panel or to any individual grand juror.

If it be on information:

1. That before the filing thereof the defendant had not been legally committed by a magistrate;

2. That it was not subscribed by the district attorney of the county. [Amendment, approved April 26, 1880; Amendments 1880, 43 (Ban. ed. 521); took effect from passage.]

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

Setting aside indictment or information. The grounds here enumerated are the only ones upon which an indictment or information may be set aside on motion: People v. Southwell, 46 Cal. 141; People v. Schmidt, 64 Id. 260. This motion must be made before demurrer or plea, and if not so made, the defendant is precluded from afterwards availing himself of the objections which he is allowed to present on such motion: People v. Freeland, 6 Id. 98; People v. Lawrence, 21 Id. 368; People v. Lopez, 26 Id. 112; People v. King, 28 Id. 272; People v. Stacey, 34 Id. 307. The grounds upon which the motion may be based go to matters occurring prior to the finding of the indictment or filing the information, as well as to their presentation and indorsement. The ruling of the lower court, upon a motion to set aside an indictment or information, will not be disturbed where the evidence is conflicting: People v. Ah Chung, 54 Id. 398. Motion based on insufficiency of affidavit for the warrant of arrest denied: People v. Velarde, 59 Id. 457.

Indictment-Where not found, indorsed, and presented, etc.-In the notes to sections 941, 943, and 944, the manner of finding, indorsing, and presenting indictments is considered. In People v. Southwell, 46 Cal. 141, it was held, upon motion to set aside an indictment for not being found, etc., as prescribed in this code, that irregularities in selecting, summoning, and impaneling the jury could not be inquired into. So in People v. Colby, 54 Id. 37, and People v. Hunter, Id. 65, this ruling was approved, and it was held that the meaning of the phrase "when not found as prescribed in this code," was simply that the indictment must be concurred in by the constitutional number, twelve.

Names of witnesses not indorsed, etc.-Sec. 943, note; see also sec. 869.

Persons present, etc.-By persons "present during the session of the grand jury," is not meant those who constitute the grand jury,

impaneled and sworn under the direction of the court: People v. Colby, 54 Cal. 38.

Defendant not been held to answer, etc. In the notes to sections 895 and 896, the grounds of challenge to the panel of the grand jury, as well as those to individual grand jurors, are considered, and the authorities relating thereto cited. A defendant who has not been held to answer before the grand jury is made up and sworn may, on motion, have an indictment set aside, on any ground which would have been a good ground of challenge to the panel or to any individual grand juror: People v. Colmere, 23 Cal. 631; People v. Turner, 39 Id. 370. If he had been held to answer prior to that time, a challenge to the panel or to an individual juror must be interposed before the grand jury is impaneled, or it is waived: Secs. 895, note, 896, note. So a defendant who is under arrest when the grand jury is about to be impaneled, although he has not been held to answer, must, if an opportunity is given to him, exercise his right of challenge, or he will be precluded from taking advantage of such objections, or motion to set aside the indictment foun against him, under this subdivision: People v. Geiger, 49 Cal. 643.

Information-Legally committed.-By section 8 of article 1 of the present constitution of this state, it is provided that "offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment," etc. Under this provision, before a person can be prosecuted by information for a public offense, he must have been examined and legally committed by one of the persons named as magistrates in section 808. It is not necessary, however, that the information should aver that the defendant has been so examined and committed: People v. Shubrick, 57 Cal. 565. If he has not been examined and committed, the information may be set aside on motion under this section upon proof of that fact, by affidavit or otherwise.

Subscribed by district attorney: Sec. 809, note, and cases there cited; also People v. Ah Fook, 64 Cal. 380.

996. Defendant waives objections unless he makes the motion.

SEC. 996. If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections men

tioned in the last section. [Amendment, approved April 9, 1880; Amendments 1880, 17 (Ban. ed. 163); took effect immediately.]

Waiver of objection: See note to last section.

997. Motion, when heard-If denied or granted, what proceedings are to be had. SEO. 997. The motion must be heard at the time it is made, unless for cause the court postpones the hearing to another time. If the motion is denied, the defendant must immediately answer the indictment or information, either by demurring or pleading thereto. If the motion is granted, the court must order that the defendant, if in custody, be discharged therefrom; or if admitted to bail, that his bail be exonerated; or if he has deposited money instead of bail, that the same be refunded to him, unless it directs that the case be resubmitted to the same or another grand jury, or that an information be filed by the district attorney; provided, that after such order of resubmission the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases, if before indictment or information filed he has not been examined and committed by a magistrate. [Amendment, approved April 9, 1880; Amendments 1880, 17 (Ban. ed. 163); took effect immediately.] Resubmission of charge: See sec. 942, and note.

Jeopardy: See sec. 687, and note.

998. Effect of order for submission.

SEC. 998. If the court directs the case to be resubmitted, or an information to be filed, the defendant, if already in custody, must so remain, unless he is admitted to bail; or if already admitted to bail, or money has been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment or information; and unless a new indictment is found, or information filed, before the next grand jury of the county is discharged, the court must, on the discharge of such grand jury, make the order prescribed by the preceding section. [Amendment, approved April 9, 1880; Amendments 1880, 17 (Ban. ed. 163); took effect immediately.] The defendant is regarded as still held to answer, and may again challenge the grand jury, as in the first instance.

999. Order no bar to another prosecution.

SEC. 999. An order to set aside an indictment or information, as provided in this chapter, is no bar to a future prosecution for the same offense. [Amendment, approved April 9, 1880; Amendments 1880, 18 (Ban. ed. 164); took effect immediately.]

Jeopardy: See sec. 687, and note. Dismissal of an indictment is no bar to another indictment for the same offense: People v. Campbell, 59 Cal. 243. See also new in

formation filed after previous verdict of not guilty, by reason of variance in the name of the accused: People v. Allen, Id. 140.

CHAPTER III.

DEMURRER.

1002. Pleading on part of defendant.

SEC. 1002. The only pleading on the part of the defendant is either a demurrer or a plea.

1003. Demurrer or plea, when put in.

SEC. 1003. Both the demurrer and plea must be put in in open court, either at the time of the arraignment or at such other time as may be allowed to the

defendant for that purpose.

Arraignment: Sec. 988, note.

Time to plead: Sec. 990.

1004. Grounds of demurrer.

SEC. 1004. The defendant may demur to the indictment or information when it appears upon the face thereof, either:

1. If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county; or if an information, that the court has no jurisdiction of the offense charged therein;

2. That it does not substantially conform to the requirement of sections nine hundred and fifty, nine hundred and fifty-one, and nine hundred and fifty-two;

3. That more than one offense is charged;

4. That the facts stated do not constitute a public offense;

5. That it contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution. [Amendment, approved April 9, 1880; Amendments 1880, 18 (Ban. ed. 164); took effect immediately.]

Demurrer to indictment or information. A demurrer upon any of the grounds above enumerated presents the objection to the sufficiency of the indictment or information. It must be in writing, distinctly specifying the grounds of objection, and must be interposed prior to the joinder of issue of fact by plea. Unless so interposed, any of the objections mentioned that appear upon the face of the indictment or information are waived, and cannot be taken advantage of upon the trial or in arrest of judgment; excepting, however, the objection to the jurisdiction of the court, and that a public offense has not been charged, which may be taken advantage of at any time: Secs. 1082, 1185; People v. Josephs, 7 Cal. 129; People v. Apple, Id. 289; People v. Shotwell, 27 Id. 394; People v. Garnett, 29 Id. 622; People Jim Ti, 32 Id. 60; People v. Burgess, 35 Id. 115; People v. Turner, 39 Id. 370; People v. Swenson, 49 Id. 388. A general demurrer to an indictment containing two counts, one of which is sufficient, will be overruled: People v. Ferris, 56 Id. 442. In People v. Ah Own, 39 Id. 604, an order sustaining a demurrer was held to be a final judgment, from which an appeal could be taken; but in People v. Martin, 47 Id. 112, an order sustaining a demurrer on the ground that the indictment did not charge a felony, but a simple assault, and leaving the case for trial as to the assault, was held not a final judgment from which an appeal would lie. Whether an appeal will lie from an order sustaining a demurrer is considered doubtful: People v. Quong On Long, 6 Pac. C. L. J. 116. See, as to orders that may be appealed from in criminal cases, secs. 1237, 1238; People v. Clarke, 42 Cal. 622; People v. Ah Kim, 44 Id. 384. Where on appeal the record failed to show what disposition the lower court had made of a demurrer interposed by the defendant, it was held that

for aught that appeared, it might have been withdrawn, and that, the information appearing good in substance, the judgment would not be disturbed: People v. Clarke, 7 Pac. C. L. J. 190.

Grounds of demurrer enumerated in the above section are the only grounds upon which a demurrer to an information or indictment will lie: People v. Schmidt, 64 Cal. 260. Uncertainty is not a ground of demurrer: People v. Markham, Id. 157.

Subd. 1. Jurisdiction.-An objection to the authority of the grand jury to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county in which the grand jury is impaneled, or to the jurisdiction of the court in which an information has been filed, may be at any time during the progress of the trial, or in arrest of judg ment. It is not waived by failure to demur: Sec. 1012; see People v. Mellon, 40 Cal 648.

Subd. 2. Specific requirements, etc.: See secs. 950, 951, 952, 954, 959, and the notes thereto; see subd. 4. Subd. 3. Charging more than one offense: See sec. 954, note. See a valuable note to Ben

v. State, 58 Am. Dec. 238-240.

Subd. 4. Facts which constitute public offense: Sec. 959, note. See also the notes under the heads of "Larceny," "Burglary," "Robbery," etc. This objection is not waived by not demurring on the ground that the information does not substantially conform to the requirement of the sections specified in subdivision 2: People v. Nelson, 58 Cal. 104.

Uncertainty is not one of the statutory grounds of demurrer: People v. Markham, 64 Cal. 157.

Waiver of objection by not demurring: See sec. 1008.

1005. Demurrer, how put in and its form.

SEC. 1005. The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the indictment or information, or it must be disregarded. [Amendment, approved April 9, 1880; Amendments 1880, 18 (Ban. ed. 164); took effect immediately.]

1006. When heard.

SEC. 1006. Upon the demurrer being filed, the argument upon the objections presented thereby must be heard, either immediately or at such time as the court may appoint.

1007. Judgment on demurrer.

SEC. 1007. Upon considering the demurrer, the court must give judgment, either allowing or disallowing it, and an order to that effect must be entered upon the minutes.

Order sustaining demurrer, whether appealable.-In People v. Ah Own, 39 Cal. 604, an order sustaining a demurrer was held to be final judgment from which an appeal could be taken; but in People v. Martin, 47 Id. 112, an order sustaining a demurrer, on the ground that the indictment did not charge a felony, but a simple assault, and leaving the case for trial as to the assault, was held not a final

judgment from which an appeal would lie. Whether an appeal will lie from such an order is considered doubtful: People v. Quong On Long, 6 Pac. C. L. J. 116; see sec. 1238.

The entry of the order on the demurrer in the minutes is the judgment; the use of the word "sustained" instead of "allowed" does not render the judgment ineffectual: People v. Jordan, 4 West Coast Rep. 84.

1008. If allowed, bar to another prosecution when.

SEC. 1008. If the demurrer is allowed, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment or information, directs the case to be submitted to another grand jury, or directs a new information to be filed; provided, that after such order of resubmission the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases. [Amendment, approved April 9, 1880; Amendments 1880, 18 (Ban. ed. 164); took effect immediately.]

Jeopardy: Sec. 687, note.

Section cited and applied: People v. Jordan,

Resubmission of charge: Sec. 942, note. 63 Cal. 219.

1009. If resubmission not ordered, defendant discharged, etc.

SEC. 1009. If the court does not permit the information to be amended, nor direct that an information be filed, or that the case be resubmitted, as provided in the preceding section, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he has deposited money instead of bail, the money must be refunded to him. [Amendment, approved April 9, 1880; Amendments 1880, 18 (Ban. ed. 164); took effect immediately.]

1010. Proceedings, if submission ordered.

SEC. 1010. If the court directs that the case be resubmitted, the same proceedings must be had thereon as are precribed in sections nine hundred and ninety-seven and nine hundred and ninety-eight.

1011. Proceedings, if demurrer disallowed.

SEC. 1011. If the demurrer is disallowed, the court must permit the defendant, at his election, to plead, which he must do forthwith, or at such time as the court may direct. If he does not plead, judgment may be pronounced against him.

Refusal to plead, after demurrer over. ruled. Where a demurrer is overruled, and the defendant refuses to plead, judgment may be pronounced against him as upon a plea of guilty: People v. King, 28 Cal. 266; People v. Jocelyn, 29 Id. 562. No constitutional right of the defendant is violated by the entry of a

judgment against him, if he refuses to plead after demurrer overruled: Id.

"If the indictment charges no offense, he is adjudged guilty of none, and it may be taken advantage of in arrest of judgment:" Commissioners' note.

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