Oct. 13, 1864, 105. Oct. 19, 1864, $106. If crime bail arraignment, the court must order the clerk to issue a bench-warrant for his arrest. § 1305. [106.] If the crime charged in the indictment be bailable, the court, upon directing the benchable, indorse- warrant to issue, must fix the amount of bail, and the clerk must indorse the same upon such warrant and sign it, substantially as follows: "The defendant is to be admitted to bail in the sum of menton benchwarrant. Oct. 19, 1864, $107. Warrant to cation of dis dollars." § 1306. [107.] At any time after the making of the order for the bench-warrant, the clerk, on the applicaissue on appli- tion of the district attorney, must issue such warrant as trict attorney. by order directed, whether the court be sitting or not. § 1307. [108.] The bench-warrant upon the indictment must be substantially in the following form: Oct. 19, 1864, $108. Bench-warrant, form of. 7 Or. 74. Oct. 19, 1864, § 109. Bench-warrant may issue to one or more counties. Id., § 110. Defendant, when must be taken before magistrate to put in bail. CIRCUIT COURT FOR THE COUNTY OF STATE OF OREGON. IN THE NAME OF THE STATE OF OREGON. Το day of 18—, in the circuit court for the county aforesaid, charging A B with the crime of (designating it generally), this is to command you forthwith to arrest the defendant and bring him before such court to answer the indictment, or if the court have adjourned for the term, that you deliver him into the custody of the jailer of the county aforesaid. By order of the court. [L. S.] -, 18-. Witness my hand and seal of said circuit court, affixed at in said county, this — day of C D, County Clerk. § 1308. [109.] If the district attorney so direct, a warrant must issue to one or more counties, and such warrants or either of them may be served in any county in the state, in the same manner as a warrant of arrest, except that when served in another county, it need not be indorsed by a magistrate of that county. § 1309. [110.] When the crime is bailable, and the defendant require it, the officer making the arrest must take him before a magistrate of the county wherein the arrest is made or the action is pending, for the purpose $110. of putting in bail, and thereupon such magistrate must oct. 19, 1864, proceed in respect thereto, according to the provisions of chapter XXIII. of this code, entitled "Bail." Ø 111. § 1310. [111.] If bail be taken, the magistrate must Oct. 19, 1864, make the order prescribed by section 1467 [274], and Proceeding, on deliver it to the officer, who must thereupon discharge putting in bail. the defendant, and without delay return the warrant and order to the clerk of the court at which the defendant is required to appear. § 112. § 1311. [112.] If the bai! be not allowed, the officer Oct. 19, 1864, must take the defendant before the court, or commit him to the custody of the jailer, according to the command not allowed of the warrant. When bail $113. Court may fendant into § 1312. [113.] Although the defendant has put in Oct. 19, 1864, bail to answer the charge or the indictment, the court may, at any time after the indictment is found, order the order the dedefendant into actual custody, unless he give bail with new sureties or in an increased amount, to be specified in the order. custody, a less other bail given. $114. When defend § 1313. [114.] If the defendant be present when the oct. 19, 1854, order is made, he must be forthwith committed accordingly; but if he be not present, a bench-warrant must ant committed be issued and proceeded upon in the manner provided ing bail. in this chapter. notwithstand § 1318. New indictment in such case, when to be found. § 1319. Indictment, order to set aside no bar to another prosecution. $115. § 1314. [115] The indictment must be set aside by Oct. 19, 1864, the court, upon the motion of the defendant, in either of the following cases: 1. When it is not found, indorsed, and presented as prescribed in chapter VII. of this code; Indictment, when set aside on motion. 7 Or. 388. 11 Or. 180. Oct. 19, 1864, 115. Indictment, when set aside on motion. 20 Or. 151. Oct. 19, 1864, 116. Motion to set aside, when made and . heard. Oct. 19, 1864, $117. Motion, if 2. When the names of the witnesses, examined before the grand jury, are not inserted at the foot of the indictment or indorsed thereon. Setting aside indictment. The grounds here enumerated are the only ones upon which an indictment 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: See the next section; 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. 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, 54 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 of jurors. § 1315. [116.] The motion to set aside the indictment must be made and heard at the time of the arraignment, unless for good cause the court postpone the hearing to a future time, and if not so made, the defendant is precluded from afterwards taking the objections mentioned in section 1314 [115]. See the preceding section and note. § 1316. [117.] If the motion be allowed, the court must order that the defendant, if in custody, be disgranted, pro- charged therefrom; or if he have given bail or deposited money in lieu thereof, that his bail be exonerated or his money refunded to him, unless it direct that the case be resubmitted to the same or another grand jury. ceeding thereon. Oct. 19, 1864, 118. Order for to the grand jury, and effect of. § 1317. [118.] If the court direct that the case be resubmitted, the defendant, if then in custody, must so resubmission remain, unless he be admitted to bail; or if he have already given bail, or deposited money in lieu thereof, such bail or money is answerable for the appearance of the defendant to answer a new indictment, if one be found. § 1318. [119.] Unless a new indictment be found 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 section 1316 [117]. Oct. 19, 1864, $119. New indictment, when to be found or defendant discharged. § 1319. [120.] An order to set aside an indictment, Oct. 19, 1864, as provided in this chapter, is no bar to a future prosecution for the same crime. Section followed: People v. Campbell, 59 Cal. 243. $ 120. Indictment, order to set aside no bar to another prosecution. 15 Or. 202. CHAPTER XI. OF THE DEMURRER. § 1320. Demurrer or plea, only pleading on part of defendant. § 1321. Demurrer or plea, when put in. § 1322. Demurrer, grounds of. § 1323. Demurrer, how put in and its form. 1324. Demurrer, when heard. § 1330. When objections, being ground of demurrer, may be taken at the trial or in arrest of judgment. § 1320. [121.] The only pleading on the part of the defendant is either a demurrer or plea. Id., 121. Demurrer or plea only pleading on part of defendant. Id., § 122. § 1321. [122] 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 plea, when defendant for that purpose. Demurrer or put in. grounds of. § 1322. [123.] The defendant may demur to the in- Id., § 123. dictment when it appears upon the face thereof either, Demurrer, 1. That the grand jury by which it was found had no legal authority to inquire into the crime charged because the same is not triable within the county; 2. That it does not substantially conform to the requirements of chapter VIII. of this code; 20 Or. 236. 18 Or. 362. 3. That more than one crime is charged in the indict- 50.72 ment; 4. That the facts stated do not constitute a crime; 5. That the indictment contains any matter which, if 20 Or. 236. true, would constitute a legal justification or excuse of the crime charged, or other legal bar to the action. 5 Or. 494. 20 Or. 391. Oct. 19, 1864, 123. Oct. 19, 1864, $124. Demurrer, how put in and its form. Oct. 19, 1864, $125. § 1323. [124.] The demurrer must be in writing, signed either by the defendant or his attorney, and filed. It must distinctly specify the ground of objection to the indictment, or it may be disregarded. § 1324. [125.] Upon the demurrer being filed, the objections presented thereby must be heard, either imwhen heard. mediately or at such time as the court may direct. Demurrer, Oct. 19, 1864, ◊ 126. Judgment on demurrer. Oct. 19, 1864, ◊ 127. Proceeding when demurrer allowed. Oct. 19, 1864, $128. If resubmission not ordered defendant to be discharged. Id., § 129. § 1325. [126.] Upon considering the demurrer, the court must give judgment, either allowing or disallowing it, and an entry to that effect must be entered in the journal. § 1326. [127.] If the demurrer be allowed, the judgment is final upon the indictment demurred to, and is a bar to another action for the same crime, unless the court, being of opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, direct the case to be resubmitted to the same or another grand jury. Effect of judgment on demurrer: See § 1329 [130], post. In People v. Ah Own, 39 Cal. 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. 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 Id. 190. § 1327. [128.] If the court do not direct the case to be resubmitted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money in lieu thereof, the money must be refunded to him. § 1328. [129.] If the court direct that the case be re |