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§ 931.

§ 932.

§ 933.

§ 934.

§ 935.

§ 936.

§ 937.

§ 931.

CHAPTER IV.

PRESENTMENT, AND PROCEEDINGS THEREON.

Presentment must be by twelve grand jurors, etc.

Must be presented to the court and filed.

Court must direct a bench-warrant if facts constitute a public offense.

Bench-warrant, by whom and how issued.

Form of bench warrant.

Bench-warrant, how served.

Proceedings of magistrate on defendant being brought before him.

Presentment must be by twelve grand jurors, etc. A presentment cannot be found without the concurrence of at least twelve grand jurors. When so found, it must be signed by the foreman. En. February 14, 1872.

Cal.Rep.Cit. 54, 103.

Crim. Prac. Act, sec. 220. En. April 20, 1850. 1851, 290. En. 1851, 212.

Rep.

Indictment concurrence of twelve grand jurors: post, sec. 940.

See

The

§ 932. Must be presented to the court and filed. presentment, when found, must be presented by the foreman, in presence of the grand jury, to the court, and must be filed with the clerk. En. February 14, 1872.

Crim. Prac. Act, sec.

221.

En. April 20, 1850. Am'd.

1850, 332. Rep. 1851, 290. En. 1851, 212.

$933. Court must direct a bench-warrant if facts constitute a public offense. 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. En. February 14, 1872. Crim. Prac. Act, sec. 224. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 934. Bench-warrant, by whom and how issued. 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. En. February 14, 1872.

Crim. Prac. Act, sec. 225. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal.Rep.Cit. 37, 280.

§ 935. Form of bench-warrant.

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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 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 C. D., 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

A. D. eighteen

day of By order of the court. [Seal.] G. H., clerk. En. February 14, 1872. Am'd. 1880, 34.

Crim. Prac. Act, sec. 226. En. April 20, 1850. 1851, 290. En. 1851, 212. Am'd. 1863, 159.

Rep.

§ 936. Bench-warrant, how served. 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. En. February 14, 1872.

Cal.Rep. Cit. 54, 103.

Crim. Prac. Act, sec. 227. En. April 20, 1850. Rep.. 1851, 290. En. 1851, 212.

§ 937. Proceedings of magistrate on defendant being brought before him. The magistrate, when the defendant.

Pen. Code-15

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. En. February 14, 1872.

Crim. Prac. Act, sec. 228. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

TITLE V.

OF THE INDICTMENT.

Chapter I. Finding and Presentment of the Indictment, §§ 940-945.

§ 940.

II. Rules of Pleading and Form of the Indictment, §§ 948-972.

CHAPTER I.

FINDING AND PRESENTMENT OF THE INDICTMENT.
Indictment must be found by twelve jurors, indorsed, etc.
If not found, depositions, etc., must be returned to court,
etc.

§ 941.

§ 942.

§ 943.

§ 944.

§ 945.

§ 940.

Effect of dismissal.

Names of witnesses inserted at foot of indictment.

Indictment, how presented and filed.

Proceedings when defendant is not in custody.

Indictment must be found by twelve jurors, Indorsed, etc. 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. En. February 14, 1872.

Cal.Rep.Cit. 54, 38.

Crim. Prac. Act, sec. 229. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal.Rep.Cit. 21, 372.

§ 941. If not found, depositions, etc., must be returned to court, etc. 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. En. February 14, 1872. Cal.Rep.Cit. 54, 38; 54, 413.

Crim. Prac. Act, sec. 230. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal.Rep.Cit. 21, 373.

§ 942.

Effect of dismissal. 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. En. February 14, 1872. Cal.Rep.Cit. 54, 413; 54, 414; 65, 218.

Crim. Prac. Act, sec. 231. En. April 20, 1850. 1851, 290. En. 1851, 212.

Rep.

§ 943. Names of witnesses inserted at foot of indictment. 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. En. February 14, 1872.

Cal.Rep.Cit. 54, 103; 56, 38; 71, 213; 104, 377; 130, 75. Crim. Prac. Act, sec. 232. En. April 20, 1850. 1851, 290. En. 1851, 212.

Cal.Rep.Cit. 26, 114.

Rep.

§ 944. Indictment, how presented and filed. 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. En. February 14, 1872.

Cal.Rep.Cit. 54, 38.

Crim. Prac. Act, sec. 233. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 945.

Proceedings when defendant is not in custody. 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. En. February 14, 1872.

Cal.Rep.Cit. 55, 298.

Crim. Prac. Act, sec. 234. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal.Rep. Cit. 35, 109.

CHAPTER II.

RULES OF PLEADING AND FORM OF THE INDICTMENT.

§ 948. Form of and rules of pleading.

§ 949.

$ 950.

§ 951.

§ 952.

§ 953.

§ 954.

§ 955.

§ 956.

§ 957.

§ 958.

§ 959.

§ 960.

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

Form of.

It must be direct and certain.

When defendant is indicted by fictitious name, etc.

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

Statement as to time when offense was committed.

Statement as to person injured or intended to be injured.
Construction of words used.

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

Not insufficient for defect of form not tending to preju-
dice defendant.

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

Judgments, etc., how pleaded.

Pleading for libel.

Pleading for forgery, where instrument has been destroyed

or withheld by defendant.

obscene

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§ 964.

§ 965.

§ 966.

§ 967.

Pleading for perjury or subornation of perjury.
Pleading for larceny or embezzlement.

§ 968.

Pleading for selling, exhibiting, etc., lewd and

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Indictment against several, one or more may be acquitted. Distinction between accessory before the fact and principal abrogated.

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

Form of and rules of pleading. All the forms of pleading in criminal actions, and the rules by which the

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