NOTE.-In People vs. Roberts, 6 Cal., p. 214, it was held that a Grand Jury must be composed of not less than seventeen, but that all need not be present at the finding of the indictment, provided twelve were present and concurring. The Code of Civil Procedure, Sec. 192, provides that the Grand Jury shall consist of not less than thirteen nor more than fifteen. An indictment found by a Grand Jury consisting of more than fifteen would be void.-People vs. Thurston, 5 Cal., p. 69. 941. (§ 230.) If twelve Grand Jurors do not concur in finding an indictment against a defendant who has 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. dismissal. 942. (§ 231.) The dismissal of the charge does Effect of not prevent its resubmission to a Grand Jury as often as the Court may direct. But without such direction it cannot be resubmitted. Names of witnesses 943. (§ 232.) When an indictment is found, the names of the witnesses examined before the Grand inserted at foot of Jury, or whose depositions may have been read before indictment them, must be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the Court. NOTE.-If the names of the witnesses are not inserted at the foot of the indictment, or indorsed thereon, before it is presented to the Court, the defendant must take advantage of the omission at the time of arraignment by motion to set aside the indictment. If he does not do so the objection is waived.-People vs. Lopez, 26 Cal., p. 112; People vs. Symonds, 22 Cal., p. 348. A witness may be sworn and examined on the trial whose name is not indorsed on the indictment.-People vs. Symonds, 22 Cal., p. 348. 944. (§ 233.) ment, how and aled. An indictment, when found by the Indict Grand Jury, must be presented by their foreman, in presented presence, to the Court, and must be filed with the Clerk. their Proceedings when defendant is not in custody. NOTE. It will be presumed that an indictment was presented to the Court by the foreman of the Grand Jury and in their presence, although that fact is not indorsed on it. The indorsement is not essential to the legal sufficiency of the indictment.-People vs. Lawrence, 21 Cal., p. 368; People vs. Blackwell, 27 Cal., p. 65. 945. (§ 234.) When an indictment is found against a defendant not in custody, the same proceedings must be had as are prescribed in Sections 979 to 984, inclnsive, against a defendant who fails to appear for arraignment. NOTE.-Stats. 1851, p. 212. A party indicted for a bailable offense, and who is under arrest on a bench warrant on which an order is indorsed admitting him to bail, is entitled to his discharge upon the execution of a recognizance in proper form, etc.-People vs. Penniman, 37 Cal., p. 271. CHAPTER II. RULES OF PLEADING AND FORM OF THE INDICTMENT. SECTION 948. Form of and rules of pleading. 949. First pleading by the people is indictment. 950. Indictment, what to contain. 951. Form of indictment. 952. Indictment must be direct and certain. 953. When defendant is indicted by fictitious name, etc. 954. The indictment 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. 960. Indictment not insufficient for defect of form not tend ing to prejudice defendant. 961. Presumptions of law, etc., need not be stated. 962. Judgments, etc., how pleaded. 963. Private statutes, how pleaded. 964. Pleading in indictment for libel. SECTION 965. Pleading in indictment for forgery, where instrument has been destroyed or withheld by defendant. 966. Pleading in an indictment for perjury or subornation of perjury. 967. Pleading in indictment for larceny or embezzlement. lewd and obscene books, etc. 969. Previous conviction of another offense, how stated in 970. Indictment against several, one or more may be 971. Distinction between accessory before the fact and prin- 972. Accessory may be indicted and tried, though principal 948. (§ 235.) 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. NOTE. The criminal Code of this State has worked the same change in pleading in criminal actions which has been wrought by the Practice Act in civil cases.People vs. King, 27 Cal., p. 507. The bench and bar must search the provisions of the Code for the form of an indictment and for the rules by which its sufficiency is to be determined rather than in the common law. People vs. Cronin, 34 Cal., p. 191; People vs. Dick, 37 Cal., p. 277; People vs. Ah Woo, 28 Cal., p. 205; People vs. Murphy, 40 Cal., p. 52. Form of and rules of pleading 949. (§ 236.) The first pleading on the part of First pleadthe people is the indictment. ing by the people is indictment. 950. (§ 237.) The indictment must contain: 1. The title of the action, specifying the name of Indiet the Court to which the indictment 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. NOTE. ENTITLING.-An indictment in the Courts of San Francisco may be entitled either as of the County of San Francisco, or as of the City and County ment, what to contain. Form of indictment. Indictment must be direct and certain When defendant by fictitious name, etc. of San Francisco.-People vs. Beatty, 14 Cal., p. 566; People vs. O'Conner, 17 Cal., p. 354. NAME OF THE DEFENDANT.-Indictment against James B. Boggs, and verdict against J. M. Boggs. Held, that the error in the initial of the middle name of the defendant in the verdict was immaterial.-People vs. Boggs, 20 Cal., p. 432; People vs. Lockwood, 6 Cal., p. 205. See Sec. 959 and note. 951. (§ 238.) It may be substantially in the fol lowing form: The People of the State of California against A. B., in the County Court of the County of at its Term, A. D. eighteen A. B. is accused by the Grand Jury of the County of- by this indictment, of the crime of (giving its legal appellation, such as murder, arson, or the like, or designating it as felony or misdemeanor), committed as follows: The said A. B., on the -day of A. D. eighteen, at the County of (here set forth the act or omission charged as an offense). NOTE.-Stats. 1863, p. 159, Sec. 9. As to form of indictment for murder, see People vs. Cronin, 34 Cal., p. 191. 952. (§ 239.) It must be direct and certain, as it regards: 1. The party charged; 2. The offense charged; 3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense. NOTE. The indictment must be direct and certain as to the party charged, the offense charged, and the particular circumstances.-People vs. Saviers, 14 Cal., p. 29. See, also, notes to Secs. 950 and 959. 953. (§ 240.) When a defendant is indicted by a is indicted fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, referring to the fact of his being indicted by the name mentioned in the indictment. NOTE. This section held constitutional in People 954. (§ 241.) The indictment must charge but one offense, and in one form only, except that when the offense may be committed by the use of different means, the indictment may allege the means in the alternative. NOTE.-If an indictment contains more than one count it should appear clearly on its face that the matters set forth in the different counts are descriptive of the same transaction or offense.-People vs. Thompson, 28 Cal., p. 214. An indictment which charges burglary mixed with larceny, charges two offenses.-People vs. Garnett, 29 Cal., p. 622. An indictment against a Tax Collector which states that he received a certain sum for licenses due the State, and a certain other sum for licenses due the county, and then charges him with embezzling the sum total, does not charge two offenses.People vs. De la Guerra, 28 Cal., p. 507. An indictment which charges the defendant with having forged an indorsement on a draft, and also with having uttered and passed the draft, knowing the forged indorsement to have been written thereon, does not charge two offenses. People vs. Frank, 28 Cal., p. 507. If an indictment for forgery contains two counts, each containing a copy of the instrument alleged to have been forged, it will not in the absence of an averment to that effect be presumed that each is a copy of only one and the same instrument.-People vs. Shotwell, 27 Cal., p. 394. In an indictment A. was charged with the larceny of certain goods, and B. with having feloniously received them, knowing them to have been stolen. Held, that two offenses were charged, and against different parties. People vs. Hawkins, 34 Cal., p. 181. An indictment for larceny which in one count charges the goods stolen to be the property of A. and B., and in another to be the property of C., and in another to be the property of D., is good. It does not charge different offenses, but the same offense in different forms.-People vs. Conner, 17 Cal., p. 354. An indictment which charges that the defendant "feloniously, willfully, and for his own gain did buy and receive" a stolen mule, does not charge two offenses; the word "receive" does not make one form, may be means. |