Proceedings on arrest in capital cases. In cases not capital. Amount of bail indorsed. Service of bench warrant. Proceedings on giving bail in another county. Increase of bail in felony cases after indictment. Commitment. Right to counsel. Arraignment. Defendant's name. 6 Cal, 210. No name given. Entry of true name on minutes. Time to answer. Answer. (designating it generally); you are therefore commanded forthwith to arrest the above-named C. D., and bring him before that court to answer said indictment; or if the court has 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, E. F., Clerk.(*) [SEAL.] [Amendment, approved April 3, 1863, 158; took effect January 1, 1864. 1851. SEC. 264. The defendant, if the offense be punishable with death, when arrested under the warrant, shall be held in custody by the sheriff of the county in which the indictment is found, unless admitted to bail, upon an examination upon a writ of habeas corpus. 1852. SEC. 265. If the offense be not capital, the bench warrant shall be in a similar form, adding to the body thereof a direction to the following effect: "Or if he require it, that you take him before any magistrate in that county, or in the county in which you arrested him, that he may give bail to answer to the indictment." 1853. SEC. 266. If the offense charged be not not capital, the court upon directing the bench warrant to issue shall fix the amount of bail, and an indorsement shall be made upon the bench warrant, signed by the clerk, to the following effect: "The defendant is to be admitted to bail in the sum of dollars." 1854. SEC. 267. The bench warrant may be served in any county, in the same manner as a warrant of arrest, except that when served in another county it need not be indorsed by the magistrate of that county. 1855. SEC. 268. If the defendant be brought before a magistrate of another county for the purpose of giving bail, the magistrate shall proceed in all respects thereto in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings may be had thereon, as provided in sections one hundred and fourteen to one hundred and seventeen, both inclusive. 1856. SEC. 269. When the indictment is for a felony, 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 give bail in an increased amount, to be specified in the order. 1857. SEC. 270. If such order be made and the defendant be present, he shall be forthwith committed accordingly. If he be not present, a bench warrant shall be issued and proceeded upon in the manner provided for in this chapter. 1858. SEC. 271. If the defendant appear for arraignment without counsel, he shall be informed by the court that it is his right to have counsel before being arraigned, and shall be asked if he desire the aid of counsel. 1859. SEC. 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 indorsed on it, and asking him whether he pleads guilty or not guilty to the indictment. 1860. SEC. 273. When the defendant is arraigned he shall be informed that if the name by which he is indicted be not his true name he must then declare his true name, or be proceeded against by the name in the indictment. 1861. SEC. 274. If he give no other name, the court may proceed accordingly. 1862. SEC. 275. If he allege that another name is his true name, the court shall 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. 1863. SEC. 276. If on the arraignment the defendant require it, he shall be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment. 1864. SEC. 277. If the defendant do not require time as provided in the last section, or if he do, then on the next day, or at such future day as the court may have allowed him, he may answer to the arraignment; either move the court to set aside the indictment, or may demur or plead thereto. (*) The original used the words "court of sessions" instead of "county court." CHAPTER IV. SETTING ASIDE THE INDICTMENT. 1865. SEC. 278. The indictment shall be set aside by the court in which the defend- Grounds of ant is arraigned, and upon his motion in either of the following cases: First. Where it is not found, indorsed, and presented as prescribed in this act. Second. Where 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. Third. Where any person is admitted to be present during the session of the grand jury, while the charge embraced in the indictment is under consideration, except as provided in section two hundred and sixteen. setting aside indictment. 4 Cal. 225. 5 Cal 69. 22 Cal. 349. answer. 6 Cal. 96. 1866. SEC. 279. When the defendant had not been held to answer before the find- Where defendant ing of the indictment, he may move to set it aside, on any ground which would have not held to been good ground for challenge, either to the panel or to any individual grand juror. 1867. SEC. 280. If the motion to set aside the indictment be not made, the defendant shall be precluded from afterwards taking the objections mentioned in the last objections. two sections. 1868. SEC. 281. The motion shall be heard when it is made, unless for good cause the court shall postpone the hearing to another time. 14 Cal. 571. Waiver of 15 Cal. 331. 15 Cal. 477. 21 Cal. 368. Hearing of motion. 1869. SEC. 282. If the motion be denied, the defendant must immediately answer Denial of motion. the indictment, either by demurring or pleading thereto. motion. of case. 1870. SEC. 283. If the motion be granted, the court shall order that the defendant, Granting of if in custody, be discharged therefrom; or if admitted to bail, that his bail be exonerated; or if he have deposited money instead of bail, that the same shall be refunded to him, unless it direct that the case be submitted to the same or another grand jury. 1871. SEC. 284. If the court direct that the case be resubmitted, the defendant, Resubmission if already in custody, shall so remain, unless he be admitted to bail, or if already admitted to bail, or money have been deposited instead thereof, the bail or money shall be answerable for the appearance of the defendant to answer a new indictment. 1872. SEO. 285. Unless a new indictment be found before the next grand jury of Discharge of the county is discharged, the court shall, on the discharge of such grand jury, make the order prescribed in section two hundred and eighty-three. defendant. 1873. SEC. 286. An order to set aside an indictment, as provided in this chapter, Setting aside shall be no bar to a future prosecution for the same offense. CHAPTER V. DEMURRER. indictment no bar to future prosecution. 1874. SEO. 287. The only pleading on the part of the defendant is either a demur- Defendant's pleading. rer or a plea. 1875. SEC. 288. Both the demurrer and the plea must be put in open court either In open court. at the time of the arraignment, or at such other time as may be allowed to the defend ant for that purpose. 1876. SEC. 289. The defendant may demur to the indictment when it shall appear Grounds of upon the face thereof, either: First. That the grand jury by which it was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county. Second. That it does not substantially conform to the requirement of sections two hundred and thirty-seven and two hundred and thirty-eight. Third. That more than one offense has been charged in the indictment. Fourth. That the facts stated do not constitute a public offense. Fifth. That the indictment contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution. demurrer. 1877. SEC. 290. The demurrer must be in writing, signed either by the defendant or Demurrer in his counsel, and filed. It must distinctly specify the grounds of objection to the indict-writing. ment, or it shall be disregarded. 1878. SEC. 291. Upon the demurrer being filed, the argument of the objections pre- Argument. sented thereby shall be had either immediately, or at such time as the court may appoint. 1879. SEO. 292. Upon considering the demurrer, the court shall give judgment Judgment. Effect of allowance of demurrer. If case not resubmitted. Where case resubmitted. Effect of disallowing demurrer. Objections, how either allowing or disallowing it, and an order to that effect shall be entered on the minutes. 1880. SEO. 293. If the demurrer be allowed, the judgment shall be final upon the indictment demurred to, and shall be a bar to another prosecution of the same offense, 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. 1881. SEO. 294. If the court do not direct the case to be resubmitted, the defendant, if in custody, shall be discharged, or if admitted to bail, his bail shall be exonerated, or if he has deposited money instead of bail, the money shall be refunded to him. 1882. SEC. 295. If the court direct that the case be resubmitted anew, the same proceedings must be had thereon as are prescribed in sections two hundred and eightyfour and two hundred and eighty-five. 1883. SEO. 296. If the demurrer be disallowed, the court shall permit the defendant at his election to plead, which he must do forthwith, or at such time as the court may allow; if he do not plead, judgment shall be pronounced against him. 1884. SEO. 297. When the objections mentioned in sections two hundred and eightynine appear upon the face of the indictment, they can only be taken advantage of by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a public offense, may be taken at the trial under the plea of not guilty and in arrest of judgment. CHAPTER VI. PLEAS. Pleas Oral. 4 Cal. 241. Form of entry of plea. Plea of guilty. Withdrawing plea of guilty. Plea of not guilty. Defenses under plea of not guilty. Acquittal for variance. Acquittal on merits. Effect of former conviction or acquittal. 1885. SEC. 298. There are three kinds of pleas to an indictment. First. Guilty. Second. Not guilty. A plea of Third. A former judgment of conviction or acquittal of the offense charged, which may be pleaded, either with or without the plea of "not guilty." 1886. SEC. 299. Every plea shall be oral, and shall be entered upon the minutes of the court. 1887. SEO. 300. The plea shall be entered in substantially the following form:— First. If the defendant plead guilty, "The defendant pleads that he is guilty of the offense charged in this indictment." Second. If he plead not guilty, "The defendant pleads that he is not guilty of the offense charged in this indictment." Third. If he plead a former acquittal or conviction, "The defendant pleads that he has already been convicted (or acquitted as the case may be) of the offenses charged in this indictment by the judgment of the court of (naming it), rendered at 1888. SEC. 301. A plea of guilty can in no place be put in, except by the defendant himself in open court, unless upon indictment against a corporation, in which case it may be put by counsel. 1889. SEC. 302. The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted. 1890. SEC. 303. The plea of not guilty shall be deemed a denial of every material allegation in the indictment. 1891. SEO. 304. All matters of fact tending to establish a defense other than that specified in the third subdivision of section two hundred and ninety-eight, may be given in evidence under the plea of not guilty. 1892. SEC. 305. If the defendant were formerly acquitted on the ground of a variance between the indictment and the proof, or upon an objection to the form or substance of the indictment, it shall not be deemed an acquittal of the same offense. 1893. SEO. 306. When, however, he shall have been acquitted on the merits, he shall be deemed acquitted of the same offense, notwithstanding any defect in form or substance in the indictment on which he was acquitted. 1894. SEC. 307. When the defendant shall have been convicted or acquitted upon an indictment, the conviction or acquittal shall be a bar to another indictment for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment, as provided in section four hundred and twenty-four. 1895. SEC. 308. If the defendant refuse to answer the indictment by demurrer or Standing mute. plea, a plea of not guilty shall be entered. CHAPTER VII. REMOVAL OF CERTAIN INDICTMENTS FROM THE COURT OF SESSIONS [COUNTY COURT] TO THE DISTRICT COURT. to district court. 1896. SEC. 309. When an indictment is found in the county court for treason, mis- Indictments to prison of treason, murder, or manslaughter, it shall be transmitted by the clerk to the be transmitted district court of the county for trial; except when the indictment is found against a 4 Cal. 218. person holding the office of district judge.() [Amendment, approved April 3, 1863, 158; took effect January 1, 1864. 4 Cal. 238. 1897. SEC. 310. All indictments found against a county judge shall also be trans- Indictments mitted to the district court of the county for trial.(') against county [Amendment, approved April 3, judges. 1863, 158; took effect January 1, 1864. district court. 1898. SEC. 311. Upon the filing in the distriet court of an indictment transmitted Proceedings in from the county court, the defendant shall be arraigned and the same proceedings had in the district court as are required by this act upon indictments tried in the county court.() [Amendment, approved April 3, 1863, 158; took effect January 1, 1864. CHAPTER VIII. REMOVAL OF THE ACTION TO ANOTHER COUNTY. 1 Cal. 379. 1899. SEO. 812. A criminal action prosecuted by indictment may be removed from Change of venue. the court in which it is pending, on the application of the defendant, on the ground 1 Cal. 408. that a fair and impartial trial cannot be had in the county where the indictment is pending. 5 Cal. 353. 21 Cal. 261. 1900. SEC. 313. The application must be made in open court and in writing, verified Motion in by the affidavit of the defendant, and a copy of said affidavit must be served on the affidavit. writing and on district attorney, at least one day before the application is made to the court. And whenever said affidavit shall show that the defendant cannot safely appear in person to make his application, because the popular excitement against him is so great as to endanger his personal safety, and when said allegation in said affidavit is sustained by other and further testimony, in the judgment of the court, said application may be made by counsel, and shall be heard and determined in the absence of the defendant, though he be indicted for felony, and may not, at the time of such application, have been arrested, or have given bail, or been arraigned, or plead, or demurred to the indictment. But nothing in this act shall be held or construed to lessen the duty and obligation of all courts, officers, and other persons, to pursue and arrest any person indicted for crime.() [Amendment, approved March 10, 1857, 71. removal. 1901. SEC. 314. If the court be satisfied that the representation of the defendant is Order for true, an order shall be made for the removal of the action to the county court of a 154. county which is free from a like objection; or if the indictment has been transmitted 9 Cal. 298. to the district court of the county from the county court, then the order of removal shall be made to the district court of a county which is free from a like objection.(^) [Amendment, approved April 3, 1863, 158; took effect January 1, 1864. 18 Cal. 196. 1902. SEC. 315. The order of removal shall be entered on the minutes, and the Transmission of clerk shall immediately make out and transmit a certified copy of the entry with a copies of papers, certified copy of the record, pleadings, and proceedings in the action, including the re (*) Original section SEC. 309. When an indictment is found in the court of sessions for murder, manslaughter, or arson, it shall be transmitted by the clerk to the district court, sitting in the county for trial, except where the indictment is found against a person holding the office of district judge. The original had been previously amended by act approved February 14, 1860, 81, to read as follows: SEC. 309. When an indictment is found in the court of sessions for murder, manslaughter, fighting a duel, and killing or wounding any person therein, or arson, it shall be transmitted by the clerk to the district court sitting in the county for trial, except when the indictment is found against a person holding the office of district judge. (*) Original section: SKO. 310. All indictments found against a member of the court &c. Removal of defendant. Proceedings after removal. cognizances for the appearance of the defendant, and of the witnesses, to the court to which the action is removed. 1903. SEC. 316. If the defendant be in custody, the order shall direct his removal by the sheriff of the county where he is imprisoned to the custody of the sheriff of the county to which the action is removed, and he shall be forthwith removed accordingly. 1904. SEC. 317. The court to which the action is removed shall proceed to trial and judgment therein, as if the action had been commenced in such court. If it be necessary to have any of the original pleadings or other papers before such court, the court from which the action is removed shall at any time on application of the district attorney, or the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained. Issue of fact. Jury trial. Presence of defendant. Proviso. 5 Cal. 72. 17 Cal. 400. Formation of jury. Criminal docket. Disposal of issues. Time for preparation. TITLE VI. OF THE PROCEEDINGS ON THE INDICTMENT BEFORE TRIAL. CHAPTER I. THE MODE OF TRIAL. 1905. SEC. 318. An issue of fact arises- Second. Upon a plea of a former conviction or acquittal of the same offense. 1906. SEC. 319. An issue of fact must be tried by a jury of the county in which the indictment was found, unless the action be removed by order of the court into some other county. 1907. SEC. 320. If the indictment be for a felony, the defendant must be personally present at the trial; but if for misdemeanor, the trial may be had in the absence of the defendant; provided, if his presence be necessary, for the purpose of identification, the court may, upon application of the district attorney, by an order or warrant to that effect, require the personal attendance of the defendant to the trial; the defendant shall also be personally present when judgment is pronounced, if the court may deem it necessary.(") [Amendment approved April 3, 1863, 158; took effect January 1, 1864. CHAPTER II. FORMATION OF THE TRIAL JURY AND THE CRIMINAL DOCKET. 1908. SEC. 321. Trial juries for criminal actions shall be formed in the same manner as trial juries for civil actions. 1909. SEC. 322. The clerk shall keep a docket of all the criminal actions pending in the court, in which he shall enter each indictment according to the date of the filing, specifying opposite the title of each action whether it be for a felony or a misdemeanor, and whether the defendant be in custody or on bail. 1910. SEC. 323. The issues on the docket shall be disposed of in the following order, unless upon the application of either party, for good cause shown by affidavit, and upon two days' notice to the opposite party with a copy of the affidavit in support of the application, the court shall direct an indictment to be tried out of its order: First. Indictments for felony when the defendant is in custody. Second. Indictments for misdemeanor when the defendant is in custody. Third. Indictments for felony when the defendant is on bail; and, Fourth. Indictments for misdemeanor when the defendant is on bail. 1911. SEO. 324. After his plea, the defendant shall have at least two days to prepare for his trial, if he require it. Continuance. 1 Cal. 403. 4 Cal. CHAPTER III. POSTPONEMENT OF TRIAL. 1912. SEC. 325. When an indictment is called for trial the court may, upon sufficient 186. 4 Cal. 235. cause shown by affidavit, direct the trial to be postponed to another day of the same 89. 22 Cal. 349. term or the next term. 6 Cal. 248. 8 Cal. (*) Original section may be had in the absence of the defendant; but if for a felony, BEC. 320. If the indictment be for a misdemeanor, the trial he must be personally present. |