CHAPTER I.

FINDING AND PRESENTMENT OF THE INDICTMENT.

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

§ 941. If not found, deposition, etc., must be returned to court, etc. $942. Effect of dismissal.

§ 943. Names of witnesses inserted at foot of indictment.

§ 944. Indictment, how presented and filed.

§ 945. Proceedings when defendant is not in custody.

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.

Concurrence.-This section shows how an indictment is found-54 Cal. 38. All the grand jurors need not be present at the finding of the indictment, provided twelve were present and concurring-6 Cal. 215; 8 id. 440; 18 lowa, 475; 35 id. 316; 2 Cush. 149; 1 Blackf. 317; 8 Leigh, 722; Cro. Eliz. 654; 2 Burr. 1008; 3 Greene, 513; disapproved, see 56 Ga. 601; 1 Utah, 319; 98 U. S. 145. An indictment found by twelve is valid, although the grand jury, owing to death or absence, may consist of less than nineteen at the time--54 Cal. 65; id. 37; 46 id. 148; see 8 id. 440; 6 id. 215. If less than twelve concur, the defect is fatal-8 Cal. 435; 36 Me. 128; 8 Leigh, 722; 2 Ired. 153; 12 Smedes & M. 68; Cro. Eliz. 654. An indictment for murder may be found by thirteen members of a jury of sixteen persons, three having been excused by the court-20 Cal. 146, approving 8 Cal. 435. At common law, any nuinber from twelve to twenty-three is a legal grand jury-36 Me. 128; 2 Ind. 153; 3 Humph. 513; see 14 La. An. 827; 2 Cush. 149; 1 Black f. 317. In Missouri, twelve are sufficient-66 Mo. 631; but an indictment found by a grand jury of twenty-four is void-5 Cal. 69; 6 Ad. & E. 236. Where nine out of twenty-three were rejected, it is a legally constituted grand jury-8 Cal. 440. If the finding be by less than twelve, the indictment may be quashed by motion before plea—6 Abb. N. C. 33. See Code Civ. Proc. §§ 192, 242.

Indorsement.-The usual practice is to indorse it "a true bill" signed by the foreman-2 Greene, 270; 8 Humph. 118; 4I11.8; 10 La. 198; 1 Meigs, 109; 8 Mo. 247; 50 Pa. St. 9; 12 Vt. 300; though the indorsement "a bill" has been held sufficient-9 Pa. St. 354; 14 Mo. 94; see 29 Gratt. 294; and in some, its total omission, where the signature of the foreman is given, is held sufficient-13 N. H. 488; 11 Cush. 473; 21 Gratt.846; 29 id. 824; 6 Iowa, 511; 17 Minn. 76; 2 Hawks, 429; 75 N. Y. 159.

Signature. Where the caption and body of the indictment designates the county where it was found, the name of the county need not be added to the signature of the district attorney-47 Cal. 100. See 14 Cal. 571. Going to trial waives the defect of want of signature-48 Cal. 549. See post, § 995.

941. If twelve grand jurors do not concur in finding an indictment against a defendant who had 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.

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 § 1982 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. 4.6; 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 Smedes & M. 259; 6 Mo. 645; 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.

§ 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 de fendant.

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

§ 962. Judgments, etc., how pleaded.

§ 963. Private statutes, how pleaded.

§ 964. Pleading for libel.

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

§ 965.

§ 966.

Pleading for perjury or subornation of perjury.

§ 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.J

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 "superintend ent 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 20 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, £8. See 7 Eng. 622; 48 Ind. 483; 10 Mo. 391; 1 Ld. Rayın. 562; as the law does not recognize more than one christian name-14 Tex. 402; 20 Iowa, 58; 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. 481; 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; 31‍id. 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