in possession, with such intent, any lewd or obscene book, pamphlet, picture, print, card, paper, or writing, need not set forth any portion of the language used or figures shown upon such book, pamphlet, picture, print, card, paper, or writing; but it is sufficient to state generally the fact of the lewdness or obscenity thereof. [In effect April 9th, 1880.]

Obscene publications.-The indictment need not so fully describe them as to spread them out on the records-1 Mann. (Mich.) 90; 17 Mass. 336; but if set out, it must be in the very words of which it is composed-1 Cush. 66; but when too obscene, a description may be substituted, and a reason for the omission bé stated-id. It is not necessary to allege that the exhibition of an obscene picture was in a public place, if exhibited to sundry persons for money-2 Serg. & R. 91.

969. Section nine hundred and sixty-nine of said Code is hereby repealed. [In effect April 9th, 1880.]

970. Upon an indictment or information against several defendants, any one or more may be convicted or acquitted. [In effect April 9th, 1880.]

Severalty.-Convictions of codefendants are several-32 Miss. 406. The charge against them is several as well as joint-2 Ired. 402; 49 Vt. 437; and a joint verdict is a distinct verdict against each-29 Pa. St. 423. So, one may be found guilty and the others acquitted-3 Cush. 523. When two are charged with an offense, it is not a variance that the proof goes only to one-21 Pick. 523; 105 Mass. 586; 107 id. 208. As to adultery, See 7 Jones (N. C.) 159; 14 Gray, 57; and see 14 Ohio, 386. When several persons are jointly indicted and convicted, they should be sentenced sever lly-16 Ark. 37; 14 B. Mon. 386; 3 Wis. 785, and be severally fined-10 Mo. 440; 21 id. 504; 61 id. 302.

971. 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 offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal. [In effect April 9th, 1880.]

Accessories before the fact.-An accessory before the fact may be indicted, tried, and punished as principal-48 Cal. 22; 40 id. 141; nevertheless, the indictment must specify that he aided and abetted the

crime, and must state in what particular manner he did so-40 Cal. 141; 39 id. 75; see 32 id. 164. Charging in one count the defendant as principal, and in another count as accessory, does not charge two offenses, nor are the two counts inconsistent-48 Cal. 189; 45 id. 555; see 40 id. 129; 39 id. 75; 32 id. 164; see 6 id. 23.

Accessories, who are.-An accessory before the fact is one who, being absent at the time the crime is committed-1 Leach, 515; yet procures, counsels, encourages, incites, or commands another to commit the crime--5 Cal. 134; 27 id. 340; 1 Brev. 357; 8 Cowen, 137; 4 Cranch C. C. 469; 1 Hayw. (N. C.) 4; 99 Mass. 433; 26 Mich. 112; 2 Ohio St. 241; 4 Parker Cr. R. 234; 10 Smedes & M. 192. He who procures a felony to be doue is a felon-2 Bond, 311; 8 Dana, 28; 13 Ired. 114; 3 Mass. 254; 4 id. 439; 12 Smedes & M. 58; 12 Wheat. 400; 4 Yerg. 143; 45 Ind. 468. So, as to procuring a murder to be done-33 Ind. 418; 13 Tex. 168. The distinction between principals and accessories as at common law has been abolished by statute-10 Cal. 68; 59 Ala. 106; and accessories before the fact are all principals-5 Cal. 134; 10 id. 68; 12 Kan. 550; S. C. 1 Am. Cr. R. 567; 11 Ind. 62; 1 Bailey, 132; 54 Barb. 299. A detective entering into a conspiracy to commit a crime for the purpose of exploding it, is not an accessory before the fact-84 Pa. St. 187. So merely concealing a felonious design will not make a person an accessory-81 Ill. 333.

Instigation to crime.-A person inciting another in a tumultuous crowd to strike an officer, is guilty of the assault-99 Mass. 443; 27 Cal. 340; so procuring, counseling, or inciting a clerk or agent, renders the instigator liable-15 Ga. 346. So an instigator may be guilty of murder in instigating a manslaughter-Dears. & M. 288. At common law the instigator and perpetrator may be guilty in different degrees-31 N. Y. 229; 32 Miss. 405; while the instigator is responsible for incidental consequences of the crime he counsels, it is otherwise as to collateral crimes-26 Mich. 112; 5 W. Va. 532. The instigator need not be the originator of the criminal design; if he encourage the perpetrator by falsehood, or otherwise, he is guilty as accessory-10 Smedes & M. 192; Car. & M. 215. The advice, procurement, encouragement, etc., may be direct or indirect-6 Cox C. C. 333; by words, signs, or motions-40 Ill. 488; and it may be personally, or through the intervention of a third person-19 St. Tri. 804; 5 Car. & P. 535; and if the procurement is through an intervening agent, it is not necessary that the instigator should know the name of the perpetrator-1 Denison, 39; 6 Car. & P. 535; 1 Moody, 166; 19 How. St. Tri. 804; and no matter how long a time or how great a space intervenes between the advice or instigation and the consummation of the deed, if there is immediate causal connection between the instigation and the act, it is sufficient-111 Mass. 395; 3 Cox C. C. 288; 6 id. 333.

Liability of accessories.-The offense of being accessory before the fact is committed in the county where the substantive accessorial acts are consummated-13 Bush, 142; 114 Mass. 307; in which county only can he be indicted-27 Cal. 340; 57 How. Pr. 342; 1 Parker Cr. R. 246. An accessory before the fact in one State, to a felony committed in another State, is guilty of the crime in the State where he became accessory, and is answerable there, while the principal is indictable in the latter State-17 Ark. 561. A person ont of the State becoming an accessory before the fact to a felony committed within the State, cannot be prosecuted under the laws of the State-19 Ind. 421. At common law, one indicted as principal cannot be convicted on proof showing him to be an accessory before the fact, and e converso -40 Cal. 129; 41 id. 429; 39 id. 75; 28 id. 404; 32 id. 160; 12 Ala. 458; 15 Ga. 346; 52 id. 287; 39 Miss. 613; 8 Neb. 80; 49 N. H. 39; 65 N. C. 572; 31 N. J. L. 65; 83 Ill. 479; 9 Cox C. C. 242; 7 Car. & P. 575; but in States where all are principals, he may be indicted and convicted as principal-40 Cal. 129; 41 id. 429; 39 id. 75; 28 id. 404; 32 id. 164; 6 id. 23; 14 Bush, 232; 56 Ga. 92; 40 Iowa, 169; 4 Ill. 368; 47 id. 323; 49

id. 410; 12 Kan. 550; 37 Pa. St. 108; 84 id. 187; 59 Mich. 106. An accessory not amenable to the law cannot be arraigned, unless his acts render him liable as principal-1 Wood. & M. 221. On separate trials, the conviction of the principal is only prima facie evidence of guilt on trial of the accessory, and may be collaterally disputed-3 Cliff. 221; 6 Ired. 236; 29 Me. 84; 33 N. H. 216; 10 Pick. 477; 1 Mass. 54; 13 Wend. 592; 10 Smedes & M. 192; 1 Moody C. C. 347. Aiders and abettors may be convicted, although the principal has been acquitted-28 Ga. 216; 29 Mo. 32; 10 Cal. 68; 1 Leach, 360; 2 Shaw, 370; Russ. & R. C. C. 314; Salk. 334.

972. An accessory to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted. [In effect April 9th, 1880.]

Both the principal and accessory may be indicted together or separately, without reference to the previous conviction or acquittal of the other-10 Cal. 68; 20 id. 439; and so with reference to aiders and abettors-id. Accessories before the fact may be tried separately-40 Cal. 129; 56 Ga. 92; 4 Ill. 368; 49 id. 410; 14 Ind. 52; 46 Iowa, 265; 12 Kan. 550; 29 Me. 84; 126 Mass. 242; 18 Ohio St. 496; 19 Ohio, 131; 25 Pa. St. 221; 12 Wis. 532; Law R. 1 C. C. 77; Bell's C. C. 243. They may be indicted, although the prime actor be dead or escaped-2 Brev. 338; Meigs, 106; and see 24 Mo. 475.

TITLE VI.

Of Pleadings and Proceedings after Indictment and before the Commencement of the Trial.

CHAP. I. OF THE ARRAIGNMENT OF THE DEFENDANT, §§ 976-90.

II. SETTING ASIDE THE INDICTMENT, §§ 995-9.
III. DEMURRER, §§ 1002--12.

IV. PLEA, §§ 1016-25.

V. TRANSMISSION OF CERTAIN INDICTMENTS FROM
THE COUNTY COURT TO

THE DISTRICT.

COURT OR MUNICIPAL CRIMINAL COURT OF

SAN FRANCISCO, §§ 1028-30.

VI. REMOVAL OF THE ACTION BEFORE TRIAL, §§

1033-8.

VII. THE MODE OF TRIAL, §§ 1041--3.

VIII.

FORMATION OF THE TRIAL JURY AND THE CAL

ENDAR OF ISSUES FOR TRIAL, §§ 1046-9.
IX. POSTPONEMENT OF THE TRIAL, § 1052.

CHAPTER I.

OF THE ARRAIGNMENT OF THE DEFENDANT.

§ 976. Defendant must be arraigned in the court where the indictment is filed or transferred.

§ 977. Defendant, when to be present at arraignment.

$ 978. If in custody, to be brought before court.

§ 979. If discharged on bail, bench-warrant to issue.

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

§ 981. Form of bench-warrant.

§ 982. Directions in the bench-warrant.

§ 983. Bench-warrant, how served.

§ 984. Proceeding on giving bail in another county.

§ 985. Ordering defendant into custody or increasing bail when indictment is for felony.

§ 986. Defendant, if present when order made, to be committed; if not, bench-warrant to issue.

§ 987. Right to counsel on arraignment.

§ 988. Arraignment, how made.

§ 989. Proceedings on arraignment, when defendant is not indicted by his true name.

§ 990. Time allowed, and how defendant may answer on arraignment.

976. When the indictment or information is filed, the defendant must be arraigned thereon before the Court in which it is filed, unless the cause is transferred to some other county for trial. [In effect April 9th, 1880.]

Arraignment necessary.-A verdict in a case where there has been neither arraignment nor plea is a nullity-28 Cal. 330; 3 Wis. 830. The failure of this duty is fatal-52 Cal. 480; 54 Ind. 159; 31 Mich. 471;3 Pinn. (Wis.) 357; 53 Mo. 234; 1 Tex. Ct. App. 408; contra, 12 Kan. 550; but it need not be repeated after a mistrial-58 Ga. 35. If, on appeal, the record fails to show that defendant was arraigned and pleaded, the court will assume that there was no arraignment or plea-52 Cal. 480. The defendant does not waive an arraignment and plea by submitting to a trial, introducing witnesses, and allowing the case to be argued on his behaif-28 Cal. 330; 3 Wis. 830; see 8 Smedes & M. 557. When the case in which defendant is arraigned is removed to another court, no fresh arraignment is required-39 Md. 355.

977. If the indictment or information be for a felony, the defendant must be personally present; but if for a misdemeanor, he may appear upon the arraignment by counsel. [In effect April 9th, 1880 ]