933. If facts stated in presentment constitute public offense, court must direct bench

warrant.

SEC. 933. If the facts stated in the presentment constitute a public offense, triable in the county, the court must direct the clerk to issue a bench-warrant for the arrest of the defendant.

934. Bench-warrant, by whom and how issued.

SEC. 934. The clerk, on the application of the judge or district attorney. may, accordingly, at any time after the order, whether the court be sitting or not, issue a bench-warrant, under his signature and the seal of the court, into one or more counties.

935. Form of bench-warrant.

SEC. 935. The bench-warrant, upon presentment, must 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: A presentment having been made on the day of, eighteen, to the superior 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 CD, and to take him before E F, a magistrate of this county; or in case of his absence or inability to act, before the nearest and most accessible magistrate in this county. Given under my hand, with the seal of said court affixed, this day of, A. D. eighteen. By order of the court. [Seal.] G H, Clerk. [Amendment, approved April 12, 1880; Amendments 1880, 34 (Ban. ed. 200); took effect immediately.]

936. Bench-warrant, how served.

SEC. 936. The bench-warrant may be served in any county, and the officer serving it must proceed thereon as upon a warrant of arrest on an information, except that when served in another county it need not be indorsed by a magistrate of that county.

937. Proceedings of magistrate on defendant being brought before him.

SEC. 937. The magistrate, when the defendant is brought before him, must proceed upon the charges contained in the presentment, in the same manner as upon a warrant of arrest on an information.

TITLE V.

OF THE INDICTMENT.

CHAPTER I. FINDING AND PRESENTMENT OF THE INDICTMENT....
II. RULES OF PLEADING AND FORM OF THE INDICTMENT.

CHAPTER I.

FINDING AND PRESENTMENT OF THE INDICTMENT.

940. Indictment must be found by twelve jurors, indorsed, etc.

940

948

SEO. 940. An indictment cannot be found without the concurrence of at least twelve grand jurors. When so found, it must be indorsed, "A true bill," and the indorsement must be signed by the foreman of the grand jury.

Grand jurors-Number present to find indictment.-Although it is absolutely neces sary, in order to put a defendant on trial, that

an indictment should be concurred in by at least twelve grand jurors, it is equally as well settled in this state that the whole number re

quired by law to form a grand jury need not with this requirement is held fatal, even after be present at the finding of an indictment. It verdict: Webster's Case, 5 Me. 432; Nois sufficient if twelve concur in the finding, al- maque v. People, Breese, 145; Commonwealth though less than the statutory number compos- v. Walters, 6 Dana, 290. In New Hampshire ing the grand jury were present at the time. a different rule prevails, and such indorsement In People v. Roberts, 6 Cal. 214, under the act is not necessary: State v. Freeman, 13 N. H. of 1856, which provided that "if, of the per- 488; also in Massachusetts: Commonwealth v. sons summoned, not less than seventeen nor Smyth, 11 Cush. 473. Where the indorsement more than twenty-three attend, they shall con- was "true bill," instead of "a true bill," it was stitute the grand jury," it was held that all the held sufficient: State v. Elkins, Meigs, 109; seventeen need not be present at the finding of State v. Davidson, 12 Vt. 300. So where there an indictment, if twelve concurred in the find- was no indorsement on the indictment, but ing. So in People v. Butler, 8 Id. 440, it was those words were written on a paper in which said: “If twelve concur in finding an indict- the indictment was folded, it was held suffiment, it is not perceived how a prisoner can be cient: Burgess v. Commonwealth, 2 Va. Cas. 483. injured by the absence of the others who were Foreman must sign.-In many of the states impaneled." People v. Gatewood, 20 Id. 147, an indictment, to be valid, must be signed by and People v. Hunter, 54 Id. 65, are to the the foreman of the grand jury: Commonwealth same effect. In People v. Thurston, 5 Id. 69, v. Sargent, Thach. Crim. Cas. 116; State v. an indictment found by twenty-four persons, Davidson, 12 Vt. 300; State v. Squire, 10 N. when the statute limited the number to twenty- H. 558; Gardiner v. People, 3 Scam. 83. It is three, was held worthless, and all proceedings a sufficient signing if the foreman, in affixing based upon it were declared void: See also Peo- his signature, makes use of only the initials of ple v. Gray, 61 Id. 164. "There is no evidence his christian name: State v. Taggart, 38 Me. that it [the indictment] was not found by the 298. So where an indictment was signed "A. constitutional number, twelve." B.," the foreman, and the letters "F. G. J." were added, they were held sufficient to indicate that he acted as foreman, it appearing from the record that A. B. was in fact foreman of the grand jury when the bill was found: State v. Chandler, 2 Hawks, 439. In North and South Carolina, Missouri, and Georgia, the foreman need not sign an indictment: State v. Creighton, 1 Nott & M. 256; State v. Cox, 6 Ired. L. 440; State v. Mertens, 14 Mo. 94; McGuffie v. State, 17 Ga. 497.

"A true bill."-Every indictment should be certified to be a true bill by an indorsement thereon in those words, signed by the foreman. An indictment not so certified is invalid, and will be set aside on motion: Sec. 995; People v. Lawrence, 21 Cal. 368; People v. Johnston, 48 Id. 549. After plea, however, this objection is waived, such indorsement being held, in this state, not essential to the legality and sufficiency of the indictment: People v. Lawrence, supra. In other states a failure to comply

941. If not found, depositions, etc., must be returned to court, etc.

SEC. 941. If twelve grand jurors do not concur in finding an indictment against a defendant who has been held to 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.

How indorsed. This section provides how Setting aside indictment because not an indictment shall be indorsed: People v. indorsed, etc.: Sec. 995, note. Colby, 54 Cal. 38.

942. Effect of dismissal.

SEO. 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.

Resubmission of charge.-A defendant who has been held to answer upon a criminal charge, and who is not indicted by the grand jury at the term of court next after his committment, is entitled to be discharged, unless good cause be shown for his further detention. A mere recommendation by the grand jury that his case be submitted to the next, is not sutlicient cause for his detention: Ex parte Bull, 42 Cal. 196; Ex parte Clarke, 54 Id. 412. His discharge by the court, however, does not pre

vent him from being again arrested and examined for the same offense: Ex parte Cahill, 52 Id. 463. Such dismissal is in the nature of a judgment of nonsuit, and as the defendant in such case has never been put in jeopardy, within the meaning of the constitution, he may be again prosecuted for the same offense: Ex parte Clarke, 54 Id. 412. An order of resubmission is not an appealable order: People v. Clarke, 42 Id. 622.

943. Names of witnesses inserted at foot of indictment.

SEC. 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.

Indorsement of names of witnesses on indictment.-Unless the names of the witnesses examined before the grand jury are indorsed on or inserted at the foot of the indict ment it will be set aside on motion: Sec. 995, note. This objection must be taken before the defendant pleads, or it is waived: Sec. 996; People v. Freeland, 6 Cal. 96; People v. Sy monds, 22 Id. 348; People v. Lopez, 26 Id. 112; People v. King, 28 Id. 266. A person may be sworn and examined as a witness on the trial although his name is not indorsed on the indictment, and although he may have been a

944. Indictment, how presented and filed.

witness before the grand jury: People v. Free-
land, 6 Id. 96; People v. Lopez, 26 Id. 112;
People v. Symonds, 22 Id. 348.
So a person
who was not examined before the grand jury,
and whose name is not indorsed on the indict-
ment, may be a witness for the prosecution on
the trial: People v. Jocelyn, 29 Id. 562. The
name indorsed was F. Diefenbach, while the
witness was G. Diefenbach; this was held in-
sufficient to warrant the denying a motion to
set aside the indictment: People v. Crowey, 56
Id. 36.

SEC. 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.

Presented to court.—It will be presumed that an indictment was presented to the court by the foreman of the grand jury, and in their presence, although that fact is not indorsed upon it, unless the contrary appear from the record of the court: People v. Blackwell, 27 Cal. 65. The conclusion of the grand jury is evidenced by the presentation to the court of an indictment, or by a return of the papers from the committing magistrate, if any have been delivered to them, with an indorsement that

945. Proceedings when defendant not in

the charge is dismissed: People v. Lawrence, 21 Id. 373. If no papers from the committing magistrate have been in their hands, their judgment upon the complaint is indicated by the fact that no indictment is returned: Id. If an indictment is not presented in the manner prescribed in this code, it may be set aside on motion: People v. Southwell, 46 Id. 148. The manner of presenting an indictment to the court is prescribed by this section: People v. Colby, 54 Id. 38.

custody.

SEC. 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. Defendant not in custody.—Courts have no jurisdiction over persons charged with crime, unless in custody, actual or constructive. It would be a farce to proceed in a criminal cause unless the court had control over the person

charged, so that its judgment might be made effective. An indictment may, however, be found against one not in custody, but unless an arrest is effective, the cause can proceed no further: People v. Redinger, 55 Cal. 298.

CHAPTER IL

RULES OF PLEADING AND FORM OF THE INDICTMENT.

948. Form of and rules of pleading.

SEC. 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 criminal pleadings.-The established rule of the common law, that penal statutes should receive a strict construction in favor of him upon whom a penalty was to be inflicted, has been abrogated by this code: See sec. 4, note; Ex parte Gutierrez, 45 Cal. 429. The above rule is applicable as well to sections merely regulating matters of practice as to those which define what constitutes an offense: See sec. 1404, note. In People v. Clarke, 7 Pac. C. L. J. 177, it was held that an information which was inartificially drawn, but which stated the substance of the offense, was good. In People v. King, 27 Cal. 507, it was said that our riminal code was designed to work the

same change in pleading and practice in criminal actions that is wrought by the Code of Civil Procedure in civil actions, and that therefore it was not always necessary to state the facts constituting the offense with the same particularity as was required in indictments by the common law. To the same effect is People Cronin, 34 Id. 191. The test of sufficiency of pleadings is found in the codes themselves: People v. Murphy, 39 Id. 52; People v. Dick, 37 Id. 277; People v. Ah Woo, 28 Id. 205; see also People v. Sandford, 43 Id. 29.

Bill of particulars of evidence relied on by the prosecution cannot be demanded by the defense: People v. Alviso. 55 Cal. 230.

949. First pleading by the people is indictment or information. SEC. 949. The first pleading on the part of the people is the indictment or information. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 158); took effect immediately.]

The amendments of April 9, 1880, to the various sections of this chapter simply conform the reading to the proceeding by information. Information: See sec. 809, note; cited generally, People v. Carlton, 57 Cal. 561; Kalloch v. Superior Court, 56 Id. 229; People v. Tisdale, Id.

727; People v. Williams, Id. 819; People v. Carlton, 7 Id. 108.

Indictment: See sec. 959, and notes. Signing. The name of the district attorney may be subscribed by his deputy: People v. Darr, 61 Cal. 554.

950. Indictment or information, what must contain.

SEC. 950. The indictment or information must contain:

1. 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. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 158); took effect immediately.]

Indictment defined: Sec. 917.

Title of the action.-An indictment or information filed in San Francisco may be entitled either as of the county of San Francisco, or as of the city and county of San Francisco: People v. Connor, 17 Cal. 354; People v. Beatty, 14 Id. 566.

Name of parties.-Omitting the name of the county in the title is a technical defect not affecting the substantial rights of the defendant: People v. Biggins, 3 West Coast Rep. 678. If defendant be not indicted by his true name, he must declare his true name when arraigned, and if he do not, he may properly be proceeded against by the name in the indictment: Sec. 989. The addition "Jr." is no part of a name proper; and when it does not appear that there were two persons of the name, or that the party

951. Form of indictment.

day of

was misled, its insertion in a criminal complaint is immaterial: City and County of San Francisco v. Randall, 54 Cal. 408. Where the indictment was against James B. Boggs, and the verdict pronounced "the defendant J. M. Boggs" guilty: Held, that the error in the initial of the middle name of defendant in the verdict was immaterial: People v. Boggs, 20 Id. 432.

The mere omission of the initial of the middle name of the defendant is immaterial, it not in any way prejudicing him: People v. Ferris, 56 Cal. 442, citing People v. Boggs, supra, and People v. Lockwood, 6 Id. 205; see also secs. 953, 956.

Statement of acts constituting offense: Sec. 959, note.

SEC. 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 A. D. eighteen A B is accused by the grand jury of the county of by this indictment (or 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 day of A. D. eighteen at the county of (here 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. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 158); took effect immediately.]

See also sec. 959.

Caption omitting county: See note to previous section.

Conclusion sufficient: See People v. Big gins, 3 West Coast Rep. 678, where the objec

tion that the information stated the deceased to have died contra formam, etc., and not that the acts of the defendant were contrary, etc., was held hypercritical.

952. Indictment must be direct and certain.

SEC. 952. It must be direct and certain as it regards:

1. The party charged;

2. The offense charged;

3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.

953. When defendant is indicted by fictitious name, elc.

SEC. 953. When a defendant is charged by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, referring to the fact of his being charged by the name mentioned in the indictment or information. [Amendment, approved April 9, 1880; Amendments 1880, 13 (Ban. ed. 158); took effect immediately.]

954. What indictment or information must charge.

SEC. 954. The indictment or information must charge but one offense, but the same offense may be set forth in different forms under different counts, and when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count. [Amendment, approved April 9, 1880; Amendments 1880, 13 (Ban. ed. 158); took effect immediately.]