bail to be in which you arrest him, that he may give bail to rant, how 983. (§ 267.) The bench warrant may be served Bench warin any county, in the same manner as a warrant of served. arrest, except that when served in another county it need not be indorsed by the magistrate of that county. NOTE.-See" Arrest," Secs. 841-851, ante, and notes; how, by whom, and by what means made. on giving another 984. (§ 268.) If the defendant is brought before a Proceeding magistrate of another county for the purpose of giving bailin bail, the magistrate must proceed in respect thereto in county. 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. defendant into custody or bail when Am 1874 985. (§ 269.) When the indictment is for a felony, Ordering ? and the defendant, before the finding thereof, has given bail for his appearance to answer the charge, the Court to which the indictment is presented may order the defendant to be committed to actual custody, unless he gives bail in an increased amount, to be specified in the order. 986. (§ 270.) 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. (§ 271.) 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 When Court to assign counsel. Arraignment, how made. counsel. If he desires and is unable to employ counsel, the Court must assign counsel to defend him. NOTE.-Art. I, Sec. 8, Const. The Court of Sessions, which corresponds to the County Court in jurisdiction in impaneling Grand Juries, was not bound to assign counsel to the defendant.-People vs. Moice, 15 Cal., p. 230. 988. ($272.) The arraignment must be made by the Court, or by the Clerk or District Attorney, under its direction, and consists in reading the indictment to the defendant and delivering to him a copy thereof and of the indorsements thereon, including the list of witnesses, and asking him whether he pleads guilty or not guilty to the indictment. NOTE.-See note to Sec. 976, ante; also, notes to Secs. 858, 859, ante. Arraignment is defined by Bouv., vol. 1, p. 143, to be "calling the defendant to the bar of the Court to answer the accusation contained in the indictment." At common law the defendant was called to the bar by his name, and he was commanded to hold up his hand. This was to completely identify him; but the holding up the hand is not now required; he simply stands up, and his name is obtained as provided in the next section. Silence or a refusal to speak is alike an admission of the name as his true name, and in it he may be proceeded against.-See 1 W. Blackst., 33 Archibald Crim. Plead., 1859 ed.; 1 Whar. Am. Cr. Law, Sec. 530, p. 128. 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 indorsement. 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 read 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." Whatever the plea of the defendant, it is entered and proceeded upon as provided in Secs. 1016-1024, post. See, also, as to proceedings on arraignment, 1 Mass., p. 95; id., p. 103; 13 id., p. 299; 9 id., p. 402; 10 Metc., p. 222; Av. Crim. Pl., 14 Lond. ed., p. 129; Carrington's Crim. Law, p. 57; 3 Carr. & K., p. 121; Roscoe Cr. Ev., 4 Lond. ed., p. 215. See case of the deaf person who could not be prevailed on to plead.-1 Leach Cr. Cases, fourth ed., p. 102; Comm. vs. Hill, 14 Mass., p. 207; 7 ings on arraign ment when defendant is not indicted by name. 989. (§§ 273, 274, 275.) When the defendant is Proceedarraigned, he must be informed that if the name by which he is indicted is not his true name, he must then declare his true name, or be proceeded against his true by the name in the indictment. 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 indictment may be had against him by that name, referring also to the name by which he is indicted. NOTE.-See note to Sec. 988, ante. See 1 Russ. on Cr., pp. 6, 7, note f; 1 Whar. Am. Cr. Law, Secs. 530532, et seq., and notes. allowed, 990. (§§ 276, 277.) If, on the arraignment, the Time defendant requires it, he must be allowed a reasonable time, not less than one day, to answer the indictment. He may, in answer to the arraignment, move to set aside, demur, or plead to the indictment. NOTE. In misdemeanors, the defendant may plead by his attorney, and need not be present, but in felonies he must be present and plead in person, under the advice of his counsel. Under a plea of guilty, if the indictment is found not to charge an offense, none is confessed.-Fletcher vs. State, 7 Eng., p. 169; 1 Whar. Am. Cr. Law, Sec. 533. It is a matter of discretion to allow the withdrawal of a plea of guilty, and it has been permitted even after overruling motion for a new trial.-State vs. Cotton, 4 Foster, N. H., p. 143; Davis vs. State, 20 Georgia, p. 674; 1 Whart. A. C. L., p. 338. and how may defendant answer on arraignment. Indict ment, when set aside on motion. CHAPTER II. SETTING ASIDE THE INDICTMENT. SECTION 995. Indictment, when set aside on motion. 996. Defendant waives objections, unless he makes the motion. 997. Motion, when heard. If denied or granted, what proceedings are to be had. 998. Effect of order for submission. 999. Order no bar to another prosecution. 995. (§§ 278, 279.) The indictment must be set aside by the Court in which the defendant is arraigned, upon his motion, in either of the following cases: 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 925; 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. NOTE. The grounds for setting aside an indictment are entirely different from those of the demurrer. The former go to matters occurring prior to the finding of the indictment, as also to its presentation and indorsement, whilst the grounds of demurrer must appear on the face of, or in the contents of the indictment. Subd. 1.-See Sec. 941, ante, and note; People vs. Lawrence, 31 Cal., p. 368. Subd. 2.-See Sec. 943, ante, and note; People vs. Symonds, 22 Cal., p. 348; People vs. Freeland, 6 Cal., p. 96; People vs. King, 28 Cal., p. 265. Subd. 3.-See Secs. 906, 919, 920, 925, ante, and notes. Subd. 4.-Under Sec. 894, ante, one held to answer may challenge Grand Jury; one not so held has no such opportunity.-People vs. Colmere, 23 Cal., p. 631; The motion provided for in this section must be made One held to answer a charge must, prior to the impaneling of the Grand Jury before which his case comes, interpose his challenge to Grand Jurors for cause; it is too late after indictment or arraignment.People vs. Colmere, 23 Cal., p. 631. Excusing persons from serving on the Grand Jury will not be presumed to have been done without good cause or grounds, but the contrary.-People vs. Millsaps, 35 Cal., p. 47. In an appeal from an order refusing a new trial, on motion based on errors occurring during the trial, the Court will not examine the indictment as to its sufficiency.People vs. Phipps, 39 Cal., p. 326. waives 996. (§ 280.) If the motion to set aside the indict- Defendant ment is not made, the defendant is precluded from afterwards taking the objections mentioned in the last section. cited. NOTE.-See note to Sec. 965, ante, and cases there objections unless he makes the motion. when heard. If denied what proto be had. or granted, cedings are 997. (§§ 281, 282, 283.) The motion must be Motion, 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, 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. |