$ 1318. Private Statute, How Pleaded.

In pleading a private statute, or right derived therefrom, it is sufficient to refer to the statute by its title and the day of its passage, and the court must thereupon take judicial notice thereof. [L. 1864; D. Cd. § 84; H. C. § 1283.]

As to pleading private statutes, see note to § 89, ante.

§ 1319. Pleading in Indictment for Libel.

An indictment for libel need not set forth any extrinsic facts, for the purpose of showing the application to the party libeled of the defamatory matter on which the indictment is founded; but it is sufficient to state generally that the same was published concerning him; and the fact that it was so published must be established on the trial. [L. 1864; D. Cd. § 85; H. C. § 1284.]

As to pleading in an action for libel, see § 91, ante, and note.

§ 1320. Forgery, Indictment for, When Misdescription of Instrument Immaterial.

When an instrument which is the subject of an indictment for forgery has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment and established on the trial, the misdescription of the instrument is immaterial. [L. 1864; D. Cd. § 86; H. C. § 1285.]

§ 1321. Perjury or Subornation of, Pleading in Indictment For.

In an indictment for perjury or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the crime was committed, and in what court, or before whom, the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed. [L. 1864; D. Cd. § 87; H. C. § 1286.]

In an indictment for perjury or subornation of perjury it is necessary to set forth the substance of the controversy or matter in respect to which the crime was committed: State v. Witham, 6 Or. 366. In an indictment for perjury, alleged to have been committed by a witness in the trial of a civil action, it is sufficient to allege that oath was taken in that court, without designating the officer by whom it was administered: State v. Spencer, 6 Or. 152.

This section states the material allegations that must be made in an indictment. The plea of not guilty puts in issue each

§ 1322.

of these allegations, and they must be proved by the state in order to warrant a conviction: State v. Kalyton, 29 Or. 378, 45 Pac. 756.

The cause and issue wherein the perjury is committed must be proved by the record. if any is made. Where the perjury is assigned to have been committed in the evidence given in the cause, it is still necessary to produce the record; but evidence of the state of the cause at the time the alleged false testimony was introduced. which will demonstrate its materiality, may be given aliunde: State v. Kalyton, 29 Or. 379, 45 Pac. 756.

Several Defendants, One or More May be Convicted.

Upon an indictment against several defendants, any one or more may be convicted or acquitted. [L. 1864; D. Cd. § 88; H. C. § 1287.]

§ 1323. "Within the County" Sufficient Description of Place of Crime, When. In an indictment for a crime committed as described in sections 1240, 1241, 1242, 1243, 1244, and 1245, it is sufficient to allege that the crime was committed within the county where the indictment is found. [L. 1864; D. Cd. § 89 ; H. C. § 1288.]

$ 1324. Distinction Between Principal and Accessory before the Fact, Abolished. The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the crime, or aid and abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of a misdemeanor. [L. 1864; D. Cd. § 90; H. C. § 1289.]

Any person concerned in the commission of a felony is a principal, and he is to be charged as such, whether he directly committed the act or not, and all evidence tending to prove his complicity is admissible under that form of indictment: State v. Moran, 15 Or. 262, 14 Pac. 419.

An indictment against one aiding and abetting, where he was present at the commission of the crime, is sufficient if it charges him directly with the crime: State v. Kirk, 10 Or. 505.

An accessory before the fact may be charged as a principal, and all evidence introduced under such indictment. This statute does not violate the provision of the constitution guaranteeing to the ac

cused the right to demand the nature and cause of the accusation against him: State v. Steeves, 29 Or. 90, 43 Pac. 947; State v. Branton, 33 Or. 540, 56 Pac. 267.

The conviction of one person charged as principal in the commission of a crime does not operate as an acquittal of another separately charged as principal in the commission of the same crime: State v. Branton, 33 Or. 540, 56 Pac. 267.

An indictment which, in the same count, charges the defendant as an accessory before the fact in the crime of murder, and also as an accessory after the fact, is bad for duplicity: State v. Hinkle, 33 Or. 95, 54 Pac. 155.

$1325. Accessory after Fact May be Tried Before Principal.

An accessory after the fact, to the commission of a felony, may be indicted, tried, and punished though the principal felon be neither indicted or tried. [L. 1864; D. Cd. § 91; H. C. § 1290.]

$ 1326. Compounding Crime Punished, Though Person Committing not Indicted. A person may be indicted for having, with the knowledge of the commission of a crime, taken money or property of another, or a gratuity or a reward, or an engagement or promise thereof, upon an agreement or understanding, express or implied, to compound or conceal the crime, or to abstain from a prosecution therefor, or to withhold any evidence thereof, though the person guilty of the original crime have not been indicted or tried. [L. 1864; D. Cd. § 92; H. C. § 1291.]

CHAPTER IX.

OF ARRAIGNMENT. PLEADINGS, AND PROCEEDINGS THEREON.

$ 1327. Defendant, When and Where Arraigned.

When the indictment has been filed, the defendant, if he has been arrested, or as soon thereafter as he may be, must be arraigned thereon before the court in which it is found. [L. 1864; D. Cd. § 93; H. C. § 1292.]

§ 1328. Arraignment, how Made.

The arraignment must be made by the court, or by the clerk or the district attorney under its direction, and consists in reading the indictment to the defendant, and delivering to him a copy thereof and the indorsements thereon, including the list of witnesses indorsed on it or appended thereto, and asking him whether he pleads guilty or not guilty to the indictment. [L. 1864; D. Cd. § 94; H. C. § 1293.]

See note to § 1349.

§ 1329. Entitled to Counsel, and Must be so Informed.

If the defendant appear 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 counsel. [L. 1864; D. Cd. § 95; H. C. § 1294.]

As to right to counsel, see Art. I, § 11, Oregon Constitution.

§ 1330. Defendant to be Requested to Declare his True Name.

When the defendant is arraigned, he must 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. [L. 1864; D. Cd. § 96 ; H. C. § 1295.]

§ 1331. May be Proceeded Against by Name in Indictment.

If the defendant give no other name, the court may proceed accordingly. [L. 1864; D. Cd. § 97; H. C. § 1296.]

§ 1332. Proceeding, when Defendant Gives Another Name.

If the defendant allege that another name is his true name, the court must direct an entry thereof to be made in its journal, 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. [L. 1864; D. Cd. § 98; H. C. § 1297.]

§ 1333. Time Allowed Defendant to Answer the Indictment.

If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time as the court may deem reasonable, to answer the indictment. [L. 1864; D. Cd. § 99; H. C. § 1298.]

See note to § 1349.

§ 1334. How Defendant May Answer Indictment.

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 further day as the court may have allowed him, he may, in answer to the arraignment, either move the court to set aside the indictment, or may demur or plead thereto. [L. 1864; D. Cd. § 100; H. C. § 1299.]

See note to § 1349.

$ 1335. Refusal to Plead - Plea of Not Guilty to be Entered.

If the defendant, within the time required, refuse to demur or plead to the indictment, the court must direct that a plea of not guilty be entered for him. [L. 1864; D. Cd. § 101; H. C. § 1300.]

§ 1336. Personal Appearance at Arraignment, when Necessary.

When the indictment is for a felony, the defendant must be personally present at the arraignment; but if it be for a misdemeanor only, and the defendant has been held to answer to the charge, his personal appearance is unnecessary, and he may appear by counsel. [L. 1864; D. Cd. § 102; H. C. § 1301.]

§ 1337. If Defendant in Custody, how Brought In.

When the personal appearance of the defendant is necessary, if he be in custody, the court may direct the proper officer to bring him before it to be arraigned, and the officer must do so accordingly. [L. 1864; D. Cd. § 103; H. C. § 1302.]

§ 1338. If Discharged on Bail or Deposit, Bench Warrant May Issue.

If the defendant has given bail, or has deposited money in lieu thereof, and do not appear to be arraigned when his personal appearance is necessary therefor, the court, in addition to the forfeiture of the undertaking of bail, or of the money deposited in lieu thereof, may order the clerk to issue a bench warrant for his arrest. [L. 1864; D. Cd. § 104; H. C. § 1303.]

§ 1339. Bench Warrant, by Whom and How Issued.

When an indictment is filed in court, if the defendant has not been arrested and held to answer the charge, unless he voluntarily appear for arraignment, the court must order the clerk to issue a bench warrant for his arrest. [L. 1864; D. Cd. § 105; H. C. § 1304.]

$ 1340. If Crime Bailable, Indorsement on Bench Warrant.

If the crime charged in the indictment be bailable, the court, upon directing the bench warrant to issue, must fix the amount of bail, and the clerk must indorse the same upon such warrant and sign it, substantially as follows: "The defendant is to be admitted to bail in the sum of dollars." [L. 1864; D. Cd. § 106; H. C. § 1305.]

§ 1341. Warrant to Issue on Application of District Attorney.

At any time after the making of the order for the bench warrant, the clerk, on the application of the district attorney, must issue such warrant as by order directed, whether the court be sitting or not. [L. 1864; D. Cd. § 107; H. C. § 1306.]

§ 1342. Bench Warrant, Form Of.

The bench warrant upon the indictment must be substantially in the following form:

CIRCUIT COURT FOR THE COUNTY OF

STATE OF OREGON.

IN THE NAME OF THE STATE OF OREGON.

To any sheriff or his deputy of this state, greeting:

day of

19-, in

An indictment having been found on the the circuit court for the county aforesaid, charging A. B. with the crime of (designating it generally), this is to command you forthwith to arrest the defendant and bring him before such court to answer the indictment, or if the court have adjourned for the term, that you deliver him into the custody of the jailor of the county aforesaid. By order of the court.

Witness my hand and seal of said circuit court, affixed at
19-.

[L. S.] said county, this

day of

[L. 1864 ; D. Cd. § 108 ; H. C. § 1307.

C. D., County Clerk.

$ 1343. Bench Warrant May Issue to One or More Counties.

in

If the district attorney so direct, a warrant must issue to one or more counties, and such warrants or either of them may be served in any county in the state, in the same manner as a warrant of arrest, except that when served in another county, it need not be indorsed by a magistrate of that county. [L. 1864; D. Cd. § 109; H. C. § 1308.]

§ 1344. Defendant, when Must be Taken Before Magistrate to Put in Bail.

When the crime is bailable, and the defendant require it, the officer making the arrest must take him before a magistrate of the county wherein the arrest is made or the action is pending, for the purpose of putting in bail, and thereupon such magistrate must proceed in respect thereto, according to the provisions of chapter XIV of title XVIII of this code. [L. 1864; D. Cd. § 110; H. C. § 1309.]

§ 1345. Proceeding, on Putting in Bail.

If bail be taken, the magistrate must make the order prescribed by section 1502, and deliver it to the officer, who must thereupon discharge the defendant, and without delay return the warrant and order to the clerk of the court at which the defendant is required to appear. [L. 1864; D. Cd. §111; H. C. §1310.]

§ 1346. When Bail not Allowed.

If the bail be not allowed, the officer must take the defendant before the court, or commit him to the custody of the jailor, according to the command of the warrant. [L. 1864; D. Cd. § 112; H. C. § 1311.]

§ 1347. Court May Order the Defendant Into Custody, Unless Other Bail Given. Although the defendant has put in bail to answer the charge or the