1874

an indict-
ment for
perjury or
suborna-
tion of
perjury.

Pleading in 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 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.

Pleading in
indictment

or embez
zlement.

967. In an indictment for the larceny or embezfor larceny zlement of money, bank notes, shares of stock, or valuable securities, it is sufficient to allege the larceny or embezzlement to be of money, bank notes, shares of stock, or valuable securities, without specifying the coin, number, denomination, or kind thereof.

an indict

ment for

NOTE.-Founded upon Stats. 7 and 8 Geo. IV, Chap.

29, Sec. 48. Speaking of the rule as it now exists,
Justice Wallace, in People vs. Cox, October Term,
1870, says:
"An indictment for the crime of embez-
zlement ought to state the description of the property
embezzled, with the same particularity as is required
in an indictment for larceny. For obvious reasons, it
may be difficult to give such a description of property
embezzled, particularly where the offense is committed
by a person in the course of a continuous employment,
as clerk, cashier, or the like; but I find nothing in the
law authorizing us to make any distinction upon this
point between the offenses of larceny and embezzle-
ment. It would, perhaps, promote the ends of justice
if a statute should be passed to correct the law in this
particular." The same reasons apply to an indictment
for larceny. See, also, note to Sec. 959.

Pleading in 968. An indictment for exhibiting, publishing,
passing, selling, or offering to sell, or having in pos-
et low session, with such intent, any lewd or obscene book,

selling.

exhibiting,
etc.. lewd

and

obscene
books, etc.

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.

NOTE.-Stats. 1850, p. 297, Sec. 2.

a Previous An I

969. In charging in an indictment, the fact of previous conviction of a felony, or of an attempt to commit an offense which, if perpetrated, 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)."

conviction

Indict

against
several, one
or more

970. (§ 254.) Upon an indictment against several ment defendants, any one or more may be convicted or acquitted.

may be
acquitted.1

between

before the

fact

971. (§ 255.) The distinction between an acces- Distinction
sory before the fact and a principal, and between prin- accessory
cipals in the first and second degree, in cases of felony, final
is abrogated, and all persons concerned in the commis- abrogated.
sion of a felony, whether they directly commit the act Principals,
constituting the offense, or aid and abet in its commis- dicted, etc.
sion, though not present, shall hereafter be indicted,
tried, and punished as principals.

NOTE.-See notes to Secs. 30 and 31 of this Code. It
is not error to charge principal and accessory in the
same indictment.-People vs. Davidson, 5 Cal., p.
133; People vs. Valencia, April Term, 1872. An
indictment, charging a felony and setting forth that
the defendant was an accessory before the fact, is good
under our statute.-People vs. Cryder, 6 Cal., p. 23.
The acts of the defendant should be set forth in the
indictment.-People vs. Schwartz, 32 Cal.,
p. 160.

how in

may be

Am

1874

972. (§ 256.) An accessory to the commission of Accessory mi a felony may be indicted, tried, and punished, though indicted the principal may be neither indicted nor tried.

NOTE.-People vs. Newberry, 20 Cal. p. 439. The accessory must be indicted, tried, and punished as a

and tried, though principal

has not

been.

1774

principal, but the particular acts, which established that he aided and abetted the crime, and thus became a principal, must be alleged in the indictment.-People vs. Campbell, 40 Cal., p. 129; see, also, People vs. Trim, 39 Cal., p. 75.

TITLE VI.

OF PLEADINGS AND PROCEEDINGS AFTER INDICT-
MENT AND BEFORE THE COMMENCEMENT OF THE
TRIAL.

CHAPTER I. Of the arraignment of the defendant.
II. Setting aside the indictment.

III. Demurrer.

IV. Plea.

V. Transmission of certain indictments from the County Court to the Dis

trict Court or Municipal Criminal Court of San Francisco.

VI. Removal of the action before trial.

VII. The mode of trial.

VIII. Formation of the trial jury and the

calendar of issues for trial.

IX. Postponement of the trial.

CHAPTER I.

OF THE ARRAIGNMENT OF THE DEFENDANT.

SECTION 976. Defendant must be arraigned in the Court where the indictment was found or sent.

977. Defendant, when to be present at arraignment.
978. If in custody, to be brought before Court.

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

980. Bench warrant, by whom and how issued.

981. Form of bench warrant.

982. Directions in the bench warrant, if the offense is bail

able. Order for bail to be indorsed.

SECTION 983. Bench warrant, how served..

984. Proceeding on giving bail in another county.

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

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

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

988. Arraignment, how made.

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

990. Time allowed, and how defendant may answer on

arraignment.

must be in the Court where the

976. (§ 258.) When the i dictment is filed, the Defendant defendant must be arraigned thereon before the Court in which it is found, if triable therein; if not, before the Court to which it is transmitted.

NOTE.-See arraignment.-Sec. 988, and note, post. It was held in the case of The People vs. Corbett, 28 Cal., p. 328, that "a verdict in a criminal case, where there has been neither arraignment nor plea, is a nullity, and no valid judgment can be rendered thereon."-Douglas vs. State, 3 Wisconsin, p. 830; 1 Whar., Sec. 530. "And so is a verdict rendered upon a plea put in by the attorney of a party indicted for a felonious assault with intent to rob."-McQuillan vs. State, 8 S. & M., p. 587.

977. (§ 259.) If the indictment is for a felony, the defendant must be personally present; but if for a misdemeanor, he may appear upon the arraignment by counsel.

NOTE.-See McQuillan vs. State, 8 S. & M., p. 587;
People vs. Corbett, 28 Cal., p. 328.

978. (§ 260.) 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.

979. (§ 261.) If the defendant has been discharged on bail, or has deposited money instead thereof, and do not appear to be arraigned when his personal attend

arraigned indictment

was found or sent.

Defendant, present at

when to be

arraign

ment.

If in cusbrought be

tody, to be

fore Court.

If dis

charged on

bail, bench

warrant

to issue.

Bench

warrant, by whom

and how issued.

Form of bench warrant.

ance 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 bench warrant for his arrest.

980. (§ 262.) 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. (§ 263.) The bench warrant upon the indictment 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,
Constable, Marshal, or Policeman in this State:

of

An indictment having been found on the

day

A. D. eighteen -, in the County Court of the County of, charging C. D. with the crime of

(designating it generally); you are therefore commanded forthwith to arrest the above named C. D., and bring him before that Court (or if the indictment has been sent to another Court, then before that Court, naming it), to answer said indictment; or if the Court have adjourned for the term, 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 - day of

By order of said Court.

[SEAL.]

A. D.

Directions

in the

982. (§§ 264, 265, 266.) The defendant, when

bench war arrested under a warrant for an offense not bailable, rant, if the offense is must be held in custody by the Sheriff of the county bailable. in which the indictment is found, 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 fol lowing effect: "or, if he requires it, that you take him before any magistrate in that county, or in the county