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. IV. PLEA, §§ 1016-25. V. TRANSMISSION OF CERTAIN INDICTMENTS FROM COURT OR MUNICIPAL CRIMINAL COURT OF VI. REMOVAL OF THE ACTION BEFORE TRIAL, §§ 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. § 979. $ 978. If in custody, to be brought before court. § 981. § 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 in dictment 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-53 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 behair-28 Cal. 330; 3 Wis. 830; see 8 Smedes & M. 587. 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.] Personal presence.-The defendant is arraigned in person-55 Cal. 298; unless in case of misdemeanor-42 Cal. 168. In case of breaking jail and escaping, he waives his right to have counsel appear for him in a case of misdemeanor-55 Cal. 298; 42 Cal. 168; 97 Mass. 543, cited 23 Cal. 160. See Const. Cal. art. i, § 13. 978. When his personal appearance is necessary, if he is in custody, the court may direct, and the officer in whose custody he is must bring him before it to be arraigned. Rights of defendants.-The defendant has a right to appear and remain without chains and shackles-42 Cal. 168. 979. If the defendant has been discharged on bail, or has deposited money instead thereof, and do not appear to be arraigned when his personal attendance is necessary, the court, in addition to the forfeiture of the undertaking of bail or of the money deposited, may direct the clerk to issue a bench-warrant for his arrest. See 55 Cal. 298. 980. The clerk, on the application of the district attorney, may, at any time after the order, whether the court is sitting or not, issue a bench-warrant to one or more counties. See 55 Cal. 298. 981. The bench-warrant upon the indictment or information must, if the offense is a felony, 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: An indictment having been found (or information filed) on the day of, A. D. eighteen in 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 bring him before that court, (or if the indictment and information has been sent to another court, then before that court, naming it (to answer said indictment (or information); or if the court be not in session, that you deliver him into the custody of the sheriff of the county of Given under my hand, with the seal of said court Cited 55 Cal. 298; 54 Cal. 102. A general description of the offense is sufficient-9 Ga. 75. 982. The defendant, when arrested under a warrant for an offense not bailable, must be held in custody by the sheriff of the county in which the indictment is found or information filed, unless admitted to bail after an examination upon a writ of habeas corpus; but if the offense is bailable, there must be added to the body of the bench-warrant 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 arrest him, that he may give bail to answer to the indictment, or information"; and the court, upon directing it to issue, must fix the amount of bail, and an indorsement must be made thereon and signed by the clerk, to the following effect: "The defendant is to be admitted to bail in the sum of dollars." [In effect April 9th, 1880.] Cited-54 Cal. 103; 55 Cal. 298. 983. 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. Cited-55 Cal. 298. See ARREST, ante, §§ 841-851. 984. If the defendant is brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings must be had thereon. Cited-55 Cal. 298. 985. When the information or indictment is for a felony, and the defendant, before the filing thereof, has given bail for his appearance to answer the charge, the court to which the indictment or information is presented, or in which it is pending, may order the defendant to be committed to actual custody, unless he gives bail in an increased amount, to be specified in the order. [In effect April 9th, 1880.] 986. If the defendant is present when the order is made, he must be forthwith committed. If he is not present, a bench-warrant must be issued and proceeded upon in the manner provided in this chapter. 987. If the defendant appears 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. If he desires and is unable to employ counsel, the court must assign counsel to defend him. Cited-55 Cal. 298. See 15 Cal. 331; Const. of Cal. art. i, § 13. 988. The arraignment must be made by the court, or by the clerk or district attorney under its direction, and consists in reading the indictment or information to the defendant and delivering to him a copy thereof, and of the indorsements thereon, including the list of witnesses, and asking him whether he pleads guilty or not guilty to the indictment or information. [In effect April 9th, 1880.] Manner of arraignment.-Where the indictment was not read to the defendant, a copy of it with the indorsements was neither delivered nor tendered to him, nor was he either then or thereafter asked whether he would plead guilty or not guilty, there was no arraignment -23 Cal. 330. If the defendant when arraigned asks for and obtains time to plead, he waives any defect in the statutory details of the arraignment, such as the failure to give him a copy of the indictment -49 Cal. 228. See 28 Cal. 331. The defendant being brought into court, the first step is to call upon him by name to answer the matter charged against him. See 1 Burr. 643; 2 Hale P. C. 119; see ante, §§ 858-859976, and notes; and post, § 990, and notes. 989. When the defendant is arraigned, he must be informed that if the name by which he is prosecuted is not his true name, he must then declare his true name, or be proceeded against by the name in the indictment or information. If he gives no other name, the court may |