Слике страница
PDF
ePub

meanor), committed as follows: The said A. B., on the day of A. D. eighteen

at the county of (here set forth the act or ommission charged as an offense), contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of California. 1880–12.

952. 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.

953. When a defendant is charged by a 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 charged by the name mentioned in the indictment or information. 1880–13.

954. The indictment or information may charge two or more different offenses connected together in eir commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more indictments or informations are filed in such cases the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the indictment or information, but the defendant may be convicted of any number of the offenses charged, and each offense upon which the defendant is convicted must be stated in the verdict; provided, that the court, in the interest of justice and for good cause shown, may, in its discretion, order that the different offenses or counts set forth in the indictment or information be tried separately, or divided into two or more groups and each of said groups tried separately. 1915–744.

955. The precise time at which the offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense.

1880—13. 956. When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.

957. The words used in an indictment or information are construed in their usual acceptance in common language, except such words and phrases as are defined by law, which are construed according to their legal meaning. 1880—13.

958. Words used in a statute to define a public offense need not be strictly pursued in the indictment or information, but other words conveying the same meaning may be used. 1880-13.

959. The indictment or information 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 stated.

2. If an indictment, that it was found by a grand jury of the county in which the court was held, or if an information, that it was subscribed and presented to the court by the district attorney of the county 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 a statement that his true name is to the jury or district attorney, as the case may be, unknown.

4. That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without of the local jurisdiction of the county, is triable therein.

5. That the offense was committed at some time prior to the time of finding the indictment or filing of the information.

6. The act or omission charged as the offense 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 offense 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. 1880-13.

960. No indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits. 1880–14.

961. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or information.

1880–14. 962. In pleading a judgement or other determination of, or proceeding before, a court or officer of special jurisdiction, it is not necessary to state the facts constituting jurisdiction; but the judgment or determination may be stated as giving or made, or the proceedings had. The facts constituting jurisdiction, however, must be established on the trial.

963. 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.

964. An indictment or information for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled or the defamatory matter on which the indictment or information 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 the trial. 1880-14.

965. When an instrument which is the subject of an indictment or information for forgery has been destroyed or withheld by the act or the procurement of the defendant, and the fact of such destruction or withholding is alleged in the indictment, or information, and established on the trial, the misdescription of the instrument is immaterial. 1880–14.

966. In an indictment or information for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court and before whom the oath alleged to be false was taken, and that the court, or the 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 or information need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed. 1880—14.

967. In an indictment or information for the larceny or embezzlement of money, bank notes, certificates of stock, or valuable securities, or for a conspiracy to cheat or defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock, or valuable securities, without specifying the coin, number, denomination, or kind thereof. 1880—15.

968. An indictment or information for exhibiting, publishing, passing, selling, or offering to sell, or having 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. 1880—15.

969. In charging in an indictment or information the fact of a previous conviction of a felony, or of an attempt to commit an offense which, if perpetrated, would have been a felony, or of petit larceny, it is sufficient to state, “That the defendant, before the commission of the offense charged in this indictment or information, was in (giving the title of the court in which the conviction was had) convicted of a felony ( or attempt, etc., or of petit larceny).” If more than one previous conviction is charged, the date of the judgment upon each conviction must be stated, but not more than two previous convictions must be charged in any one indictment or information. 1905—772.

970. Upon an indictment or information against several defendants, any one or more may be convicted or acquitted 1880—15.

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. 1880—15.

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. 1880—15.

TITLE VI.

Pleadings and Proceedings After Indictment and Befure the Com.

mencement of the Trial.

Chapter I. Arraignment of the Defendant.

II. Setting Aside the Indictment.
III. Demurrer.
IV. Plea.
V. Transmission of certain Indictments froin the County

Court to the District Court or the Municipal Crim

inal Court of San Francisco. VI. Removal of the Action Before Trial. VII. The Mode of Trial. VIII. Formation of the Trial Jury and the Calendar uf Is

sues for the Trial. IX. Postponement of the Trial.

CHAPTER I.

in

on

or in

Arraignment of the Defendant. 976. Defendant arraigned 984. Proceedings on bail anwhere indictment found.

other county. 977. Defendant, when pres

985. Ordering defendant ent.

custody, or increasing 978. In custody, to be in

bail, when. court.

986. Defendant present, pro979. On bail, bench warrant

ceedings. to issue.

987. Defendant arraign980. Bench warrant, how is

ment, notified of right sued.

to counsel. 981. Form of bench warrant. 988. Arraignment, how made. 982. Directions bench

war- 989. Proceedings, indicted by rant, if offense bailable.

false name. 983. Bench warrant,

how

990. Time to pleau, how. served. 976. When th indictmen

rmation is filed, the lefendant must be arraigned thereon before the court in which iv s filed, unless the cause is transferred to some other county for trial. 1880—15.

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. 1880–16.

978. When his personal appearance is necessary, if he custody, the court may direct and the officer in whose custowy he is must bring him before it to be arraigned.

979. If the defendant has been discharged on bail, or how 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.

980. The clerk, on the application of the district attorney, way, at any time after the order, whether the court is sitting or not, issue a bench-warrant to one or more counties.

981. The bench warrant upon the indictment or inforn. tion 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 for information filed) on the A. D. eighteen

in the superior cours 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

s in

day of
the county of

« ПретходнаНастави »