but other words, conveying the same meaning, may be used.

§ 301. The indictment is sufficient, if it can be understood therefrom.

1. That it is entitled in a court having authority to receive it, though the name of the court be not accurately stated:

2. That it was found by a grand jury of the county, or if in a city court, of the city in which the court was held:

3. That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name, with the statement that he has refused to discover his real name:

4. That the offence was committed at some place within the jurisdiction of the court; except where, as provided by sections 128 to 137, both inclusive, the act though done without the local jurisdiction of the county, is triable therein:

5. That the offence was committed at some time prior to the time of finding the indictment:

6. That the act or omission, charged as the offence, is clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended:

7. That the act or omission, charged as the offence, is stated with such a degree of certainty, as to enable

the court to pronounce judgment, upon a conviction, according to the right of the case.

§ 302. No indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.

§303. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment.

This section is the same in substance, as sec. 134, Code of 1848.

§ 304. In pleading a judgment or other determination of, or proceeding before, a court or officer of special jurisdiction, it is not necessary to state the facts confering jurisdiction; but the judgment or determination may be stated to have been duly given or made. The facts constituting jurisdiction, however, must be established on the trial.

Same in substance, as sec. 161, Amended Code.

§ 305. In pleading a private statute, or a 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.

Same in substance, as sec. 163, Amended Code.

§ 306. An indictment for libel necd not set forth any extrinsic facts, for the purpose of shewing the applica

tion to the party libelled, 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 trial.

Same in substance, as sec. 164, Amended Code.

§ 307. 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.

Taken from Livingston's Crim. Code, 521, art. 270.

§ 308. 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 offence 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 ccmmission or authority of the court or person before whom the perjury was committed.

This section is intended to carry out the principle contained in sec. 304, and will have the effect of dispensing with many technical recitals, leading to variances between the in

dictment and the proof, and calculated to defeat the ends of justice. The Virginia criminal code, Laws of Va., 1848, p. 143, sec. 5, contains a similar provision.

§ 309. Upon an indictment against several defend ants, any one or more may be convicted or acquitted.

Declaratory of the existing rule.

§ 310. The distinction between an accessary 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 offence, or aid and abet in its commission, though not present, must hereafter be indicted, tried aud punished as principals, as in the case of a midemeanor.

§ 311. An accessary after the fact to the commission of a felony, may be indicted, tried and punished, though the principal felon be neither indicted nor tried.

The last two sections abrogate the distinction between principals in the first and second degree, and between principals and accessaries, in cases of felony. There is no distinction in the punishment, in reference to these several degrees of crime. The only distinction between them is, in the form in which they shall be described, and in the order of their trial. By the common law, which in this respect is still in force in this state, the accessary cannot ve tried until after the principal is convicted. The moral character of the guilt is the same in both cases, and the legal punishment of both is identical. But by the operation of the rule just referred to, the accessary, though he may be equally guilty with the principal,-nay, even more guilty, for he may have instigated the commission of the crime,—is enabled to escape, because, by accident or otherwise, the principal cannot be tried and punished. A case occurred many years ago in

Massachusetts, illustrating the practical absurdity of this distinction. The principal and accessary in the commission of a heinous murder, were both arrested and indicted for the crime; but before the trial of either, the principal committed suicide; and though the case was a strong one against the accessary, he was discharged, by the application of this rule, the principal not having been convicted. The distinction referred to does not exist in cases of misdemeanor, where all who commit the offence are deemed principals; and the Commissioners see no reason for its further continuance, in cases of felony.

§ 312. A person may be indicted, for having, with the knowledge of the commission of a public offence, taken money or property of another, or a gratuity or reward, or an engagement or promise therefor, upon an agreement or understanding, express or implied, to compound or conceal the offence, or to abstain from a prosecution therefor, or to withhold any evidence thereof, though the person guilty of the original offence have not been indicted or tried.

The reasons stated in the note to sections 310, and 311 are applicable to this section.

CHAPTER III.

ARRAIGNMENT OF THE DEFENDANT.

SECTION 313. Defendant must be arraigned in the court in which indictment is found, if triable therein, or if not, in that to which it is sent or removed.

314. If indictment be for felony, defendant must be present; if for mis

demeanor, he may appear by counsel.

315. When personal appearance is necessary, if defendant be in custody, he must be brought before the court.

316. If discharged on bail or deposit, bench warrant to issue.

317. Bench warrant, by whom, and how issued.

318. Form of bench warrant.

319. Direction in bench warrant, if indictment be for misdemeanor.