answer, the depositions and statement, if any, transmitted to them must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed.

Indorsement.-This section prescribes how an indictment must be indorsed and presented-54 Cal. 38. The objection that the indictment is not indorsed must be taken by motion, before demurrer or plea, or the defect is waived-28 Cal. 272; 34 id. 308; 5 Me. 373; 2 Greene, 270; 4 Ill. 83; 1 Meigs, 109; 23 Ind. 32; 23 Ala. 772; 8 Mo. 247; id. 283; 6 Dana, 290; 8 Humph. 118; 28 Miss. 728; 1 Morris, 332.

942. The dismissal of the charge does not prevent its resubmission to a grand jury as often as the court may direct. But without such direction it cannot be resubmitted. Dismissal of charge.-When the grand jury has dismissed a charge, the court may dismiss the action, and discharge the prisoner from custody and sureties from their obligations, unless it has reason to believe that the jury at the succeeding term may properly indict him -54 Cal. 413. This section is to be considered in connection with § 1382 of this Code-54 Cal. 413.

Construction.-This section is to be considered in connection with § 1383 of this Code-54 Cal. 413. Upon such dismissal, the power of the court to resubmit ceases-54 Cal. 412, explaining 52 id. 463. It is in the nature of a nonsuit-54 Cal. 412. When an action has been dismissed, a new action may be commenced on any subsequent day-54 Cal. 412. See JEOPARDY, ante, page 17.

943. When an indictment is found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, must be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the court.

Names of witnesses to be inserted before the indictment is presented to the court-46 Cal. 149. If not inserted at the foot of the indictment, or indorsed thereon, and defendant fails to take advantage of the omission at the time of his arraignment, the objection is deemed waived-22 Cal. 348; 26 id. 112; see 6 id. 96; 21 id. 368. It is not an ob jection to a witness being sworn at the trial, whose name is not on the indictment-22 Cal. 348; 28 id. 272; 29 id. 563; 34 id. 308; 26 Mich. 496; 2 Va. Cas. 3; id. 29. See post, § 995. Whenever, by statute, the indorsement of the names of witnesses is required, its omission can be taken advantage of by motion to quash demurrer or plea, if not by motion in arrest-5 How. (Miss.) 730; 13 Sinedes & M. 259; 6 Mo. 649; 10 id. 167; 19 id. 224; 3 Dana, 474; 10 Yerg. 239; 3 Fla. 262. Contra, 1 Ala. 655.

Bill of particulars.-The defendant is not entitled to a bill of par ticulars of the evidence relied on to sustain the indictment-55 Cal. 230.

944. An indictment, when found by the grand jury, must be presented by their foreman, in their presence, to the court, and must be filed with the clerk.

Indictment, how presented.-This section prescribes the manner of presentments-54 Cal. 38. An indictment is not vitiated by the fact that one challenged and excluded from the deliberation of the case appears in the court with the other grand jurors when the indictment is presented-20 Cal. 146. If the indictment is not presented in the manner prescribed, it may be set aside on motion-46 Cal. 148. An indorsement that it was presented by the foreman of the jury, and in their presence, is not essential. This fact will be presumed-21 Cal. 368; 27 id. 67.

To be filed-81 N. C. 516; 42 Ind. 393; 59 Ill. 68; 2 Va. Cas. 527; 3 Iowa, 249; 2 Cold. 184; 6 Ired. 440; see 5 W. Va. 510; 53 Miss. 585; 41 Tex. 463; 1 Tex. Ct. App. 664; 8 Ill. 71; 8 Yerg. 166; 7 Humph. 155.

945. When an indictment is found against a defendant not in custody, the same proceedings must be had as are prescribed in sections nine hundred and seventy-nine to nine hundred and eighty-four, inclusive, against a defendant who fails to appear for arraignment.

Indictment may be found against one not in custody-55 Cal. 298; but if he is never arrested, the proceedings can go no further-id. A party arrested on a bench-warrant, on which an order is indorsed admitting him to bail, is entitled to discharge on execution of a recognizance-27 Cal. 272.

CHAPTER II. >

RULES OF PLEADING AND FORM OF THE INDICTMENT.

§ 948. Form of and rules of pleading.

§ 949. First pleading by the people is indictment, or information. § 950. Indictment, or information, what to contain.

§ 954.

Must charge but one offense and in one form, except where it may be committed by different means.

§ 955.

Statement as to time when offense was committed.

§ 956. Statement as to person injured or intended to be.

§ 957. Construction of words used.

§ 958.

Words used in a statute need not be strictly pursued.
Indictment or information, when sufficient.

§ 959.

§ 960.

Not insufficient for defect of form not tending to prejudice defendant.

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

§ 962. Judgments, etc., how pleaded.

§ 964.

Pleading for libel.

§ 965.

§ 966.

Pleading for forgery, where instrument has been destroyed or withheld by defendant.

Pleading for perjury or subornation of perjury.

§ 967. Pleading for larceny or embezzlement.

§ 968. Pleading for selling, exhibiting, etc., lewd and obscene books.

§ 969. Previous conviction of another offense. [Repealed.]

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

§ 971. Distinction between accessory before the fact and principal abrogated.

§ 972. Accessory may be indicted and tried, though principal has not been.

948. All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code.

Rules of pleading. The Criminal Code was designed to work the same change in pleading and practice on criminal actions which is wrought by the Civil Code in civil actions-27 Cal. 510. The form of indictment and rules by which the sufficiency of pleadings are deter

mined must be sought for in its provisions-28 Cal. 208; 19 id. 598; 21 Id. 403; 27 id. 510; 34 id. 200; 37 id. 280; 39 id. 55.

949. The first pleading on the part of the people is the indictment or information. [In effect April 9th, 1880.]

950. The indictment or information must contain1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties.

2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. [In effect April 9th, 1880.]

Caption. Entitling an indictment specifying the name of the court, as of the County of San Francisco, or as the City and County of San Francisco, is sufficient-14 Cal. 572; and see 10 id. 21.

Subd. 1. The indictment must be certain as to the defendant's name 58 Ind. 567; but when once given in full, it may be repeated by the christian name only-65 Me. 111; but each count must describe him by his full name-6 Gray, 478; 1 Denison, 356; see 1 Eng. 165. Misnomer of defendant must be taken advantage of by plea in abatement-15 Me. 122; 29 id. 329; 1 Mass. 76; 1 Met. 151; 119 Mass. 199; 32 Iowa, 17; 54 Ala. 155; 2 Va. Cas. 20; 1 Tex. Ct. App. 531. If a man renders it doubtful what his true name is, he cannot complain of the misnomer-2 Cromp. & J. 215. A corporation may be indicted in its corporate name -12 Serg. & R. 389; 10 Mass. 78; 16 id. 142; 40 N. J. 169; 2 Va. Cas. 296; 28 Vt. 583; 9 Car. & P. 478; 7 El. & B. 453; 9 Q. B. 315; see 45 N. Y. 153; 28 Ind. 321; 63 Ill. 481. An allegation charging defendant as "superintendent of common schools," is sufficient-39 Cal. 425; see 35 id. 114. Names are used for the purpose of identification-6 Cal. 212; and the use of initials by which the party may be more readily known and identified, though varying from the true initials, is not a fatal error-37 Cal. 280; so, an error in the initial of a middle name is immaterial-20 Cal. 435; see 29 id. 262; 34 id. 190; 6 Pac. C. L. J. 610. Where the name of defendant was prefixed by the initial letters of his christian names, it was held good on motion for arrest of judgment-37 Cal. 280; see 10 N. H. 347; 3 Met. (Ky.) 484; 27 Conn. 42; 47 Ill. 122; 4 McCord, 487; 3 Rich. 172; 65 N. C. 313; 67 id. 58; 31 Tex. 560; 13 Blatchf. 276. The omission of a middle name is not a fatal defect-6 Cal. 205; 39 Ill. 457; 17 Ala. 179; 14 Barb. 259; 2 Cowen, 463; 20 Iowa, 98. See 7 Eng. 622; 48 Ind. 483; 10 Mo. 391; 1 Ld. Raym. 562; as the law does not recognize more than one christian name-14 Tex. 402; 20 Iowa, 98; contra, I Pick. 388; and see 3 id. 362; 40 Me. 438.

Principal and accessory.-Under an indictment which charges defendant as principal, he cannot be found guilty if the evidence shows him to have been an accessory-41 Cal. 431; 39 id. 75; 40 id. 129. An indictment against an accessory must, in addition to other matter, contain all the averments necessary in an indictment against the principal, and it must therefore allege that the crime of the principal was committed before it was found and presented-50 Cal. 416; 31 id. 567. He must be indicted in the county where the accessorial act was committed-27 Cal, 340; see 40 id. 599. See ante, § 31.

Subd. 2. Statement of offense.-Facts necessary to constitute the crime must be stated-6 Cal. 207; id. 238; 9 id. 31; id. 275; 20 id. 79; see

47 id. ordinary understanding can know what is intended-14 Cal.

person

in ordinary and concise language, and in such a way that a 29. All the matters must be set forth in which its illegality consists52 Cal. 201. Every averment that is substantially necessary to enable defendant to defend himself must be stated-9 Cal. 55; and the omission will be fatal-8 Ill. 76; id. 356; 25 Vt. 373; 8 Barn. & C. 114; but unnecessary averments or aggravations are surplusage, and will be disregarded-13 Blatchf. 178; 2 Murph. 186; 22 Minn. 67. If it does not substantially conform to the requisites of this section, it is demurrable 49 Cal. 390. It is not enough to state a mere conclusion of law92 U. S. 544; 56 Ind. 107; as charging one with "stealing," or "murdering"-52 Cal. 201; 2 Curt. 265; 1 Hughes, 448; 73 N. C. 269; 31 Ind. 72; 30 Tex. 518; 1 Rolle, 79; 2 Strange, 699; or with being a defamer, or evildoer, etc., or any such vague charge-110 Mass. 181; see 1 Mod. 71; 2 Strange, 848; 2 Hawk. P. C. ch. 25, § 59. Facts not vital to the accusation, as inere matters of description, may be stated as unknown to the grand jury-36 Cal. 247; 3 Denio, 91; provided it is described as accurately as possible-5 Cush. 295; 125 Mass. 384; id. 387; id. 394; 7 Jones, (N. C.) 446; but it must be shown that it was actually unknown to them-26 Mich. 298; 3 Ind. 403; 13 Mo. 246; 16 Ark. 499. A bare negative qualification need never be averred in an indictment, but must be relied on as matter of defense-4 Cal. 341; 6 id. 562; 30 id. 218; 53 id. 600. When the occurrence of several acts, or the doing of an act under peculiar circumstances, is necessary to constitute the offense, the indictment must state them-40 Cal. 55. An allegation in an indictment descriptive of the identity of what is legally essential to the defense cannot be rejected as surplusage-20 Cal. 76.

951. It may be substantially in the following form: The People of the State of California against A. B., in the Superior Court of the county of - the

day of B. is accused by the by this indictment, (or

grand jury of the county of by the district attorney by this information) of the crime of (giving its legal appellation, such as murder, arson, or the like, or designating it as felony or misdemeanor), committed as follows: The said A. B., on the

, at the county of

day of (here

—— A. D. eighteen set forth the act or omission charged as an offense) contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the State of California. [In effect April 9th, 1880.]

Form of indictment.-For murder-34 Cal. 209; followed-47 id. 102; cited-37 id. 230; 4) id. 390; for forgery-6 Pac. C. L. J. 610; for larceny -6 id. 569; for assault to commit murder-30 Cal. 216.

Appellation of crime.-The name given to the offense is not of itself the charge of an offense, and a mistake in regard to it is a mere irregularity, and not fatal-54 Cal. 54; 39 id. 331; 14 id. 572. It is not necessary to state in terms that it is a felony, or a misdemeanor-20 Cal. 117; and it need not state the degree of the crime-21 id. 402; and the word "feloniously" need not be used-7 id. 403; 3 Hill, 92; 22 Wend. 175; 1 N.