TITLE V. OF THE INDICTMENT. Chapter I. FINDING AND PRESENTMENT OF THE INDICTMENT, §§ 940-945. CHAPTER I. FINDING AND PRESENTMENT OF THE INDICTMENT. § 940. Indictment must be found by twelve jurors, indorsed, etc. § 941. If not found, depositions, etc., must be returned to court, etc. § 942. Effect of dismissal. § 943. Names of witnesses inserted at foot of indictment. § 944. Indictment, how presented and filed. § 945. Proceedings when defendant is not in custody. § 940. INDICTMENT MUST BE FOUND BY TWELVE JURORS, INDORSED, ETC. An indictment can not be found without the concurrence of at least twelve grand jurors. When so found it must be indorsed, "A true bill," and the indorsement must be signed by the foreman of the grand jury. History: Enacted February 14, 1872, re-enactment of § 229 Criminal Practice Act 1851, Stats. 1851, p. 237. FINDING OF INDICTMENT-NUMBER NECESSARY, INDORSMENT. 1-4. Construed-Full number of grand jury not required. 5. Same "Indictment must be found." 6. Indictment by grand jury of twentyfour persons. 7. Indorsement-"A true bill.'' 8. Same-Sufficiency of. 9. Want of signature waived. or indorsement 1. Construed Full number of grand jury not required to be present at time indictment is found, but it is sufficient if twelve concur in finding it.-People v. Roberts, 6 Cal. 214; People v. Butler, 8 Cal. 435, 439; People v. Gatewood, 20 Cal. 147, 149; People v. Hunter, 54 Cal. 65; People v. Simmons, 119 Cal. 1, 4, 50 Pac. 844; Kitts v. Superior Court, 5 Cal. App. 462, 90 Pac. 977, 978. 2. Thus indictment can be legally found by thirteen members of grand jury composed of sixteen persons, three of number having been challenged by defendant and excused by court.-People v. Gatewood, 20 Cal. 147. 3. And though one of nineteen members of grand jury dies before finding of indictment.-People v. Hunter, 54 Cal. 65. 4. Where there is no evidence that indictment is not found by twelve grand jurors, it will not be set aside.-People v. Gray, 61 Cal. 164, 165, 44 Am. Rep. 549. 5. Same.- "Indictment must be found," etc., means that it must be concurred in by constitutional number.-People v. Colby, 54 Cal. 37, 38. 6. Indictment by grand jury of twentyfour persons is erroneous, for, while statute provides that twenty-four shall be summoned, it limits the number of those competent to act to twenty-three.-People v. Thurston, 5 Cal. 69. See Levy v. Wilson, 69 Cal. 105, 108, 10 Pac. 272; Bruner v. Superior Court, 92 Cal. 239, 249, 255, 261, 265, 28 Pac. 341. Iowa. State v. Ostrander, 18 Iowa 435, 442. Nev. State v. Collyer, 17 Nev. 275, 281, 30 Pac. 891. Tex. Raeney v. State, 19 Tex. Cr. App. 482. 7. Indorsement.-"A true bill" is not essential to the legality and sufficiency of indictment. It is only evidence of finding of indictment, and object of statute in requiring it is merely to secure authenticity and genuineness of instrument.-People v. Lawrence, 21 Cal. 368, 372. 8. Same-Sufficiency of.-An indictment indorsed, "A true bill. Henry N. McDonald, Foreman of the Grand Jury," is in accord with section 940 of the Penal Code, which provides the manner in which an indictment must be found and indorsed.-People Henninger, 20 Cal. App. 79, 128 Pac. 352, 353. V. 9. Want of signature or indorsement on an indictment is waived by failure to move to set it aside.-People v. Johnston, 48 Cal. 549. § 941. IF NOT FOUND, DEPOSITIONS, ETC., MUST BE RETURNED TO COURT, ETC. 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. History: Enacted February 14, 1872, re-enactment of § 230 Criminal 1. Construed-Prescribes how indictment must 2. Conclusion of grand jury-Evidenced by presentation of indictment. 1. Construed-Prescribes how indictment must be indorsed.-People v. Colby, 54 Cal. 37, 38. by presentation of indictment, or by return § 942. EFFECT OF DISMISSAL. The dismissal of the charge does not prevent its resubmission to a grand jury as often as the court may direct. But without such direction it can not be resubmitted. History: Enacted February 14, 1872, re-enactment of § 231 Criminal DISMISSAL OF CHARGE OR INDICT- 1. Construed-Limitation by section 1382, within thirty days after defendant's commitment, is authorized.-Ex parte Moan, 65 Cal. 216, 218, 3 Pac. 644. 3. Amendment of indictment by grand jury may be made, with leave of court, at any time before prisoner has pleaded and before they are discharged, where there was variance between indictment as originally presented and evidence upon which it was found.-People v. Rodley, 131 Cal. 240, 250, 63 Pac. 351. As to amendment of indictment, see note 72 Am. Dec. 125. 4. Dismissal of indictment.-No bar to another indictment for same offense. - Ex parte Cahill, 52 Cal. 463, 464; People v. Campbell, 59 Cal. 243, 244, 43 Am. Rep. 257. 5. And would not be, even if case had not been subsequently resubmitted by court to grand jury, where offense was not misdemeanor, but felony.-Ex parte Cahill, 52 Cal. 463, 464. § 943. NAMES OF WITNESSES INSERTED AT FOOT OF INDICTMENT. When an indictment is found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, must be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the court. 1. History: Enacted February 14, 1872, re-enactment of § 232 Criminal Practice Act 1851, Stats. 1851, p. 237. INDORSING NAMES OF WITNESSES. 1, 2. Construed-Applies only to indictments. 3, 4. Same-Name of defendant need not be indorsed. 5. Same Name of witnesses who did not testify. 6. Same-Object of law twofold. 7. Failure to indorse names of witnesses on indictment. 8-11. Misnomer. Construed.-Applies only to indictments, and does not require that names of witnesses shall be indorsed on information. -People v. Neary, 104 Cal. 373, 377, 37 Pac. 943. See People v. Sherman, 63 Cal. Unrep. 851, 32 Pac. 879. 3. Same.-Name of defendant need not be indorsed on indictment, though he testified before grand jury.-People v. King, 28 Cal. 265, 272; People v. Northey, 77 Cal. 618, 8 Am. Cr. Rep. 338, 19 Pac. 865, 20 Id. 129; People v. Page, 116 Cal. 386, 391, 48 Pac. 326. 4. Or though shorthand notes of his testimony in another proceeding were introduced in evidence against him.-People v. Northey, 77 Cal. 618, 629, 8 Am. Cr. Rep. 338, 19 Pac. 865, 20 Id. 129. 5. Same-Name of witness who did not testify before grand jury, though he was called to testify at trial, need not be indorsed.-People v. Jocelyn, 29 Cal. 562, 563. 6. Same.-Object of law is twofold: (1) To inform party who are his accusers; and (2) to inform prosecutor who are witnesses. -People v. Freeland, 6 Cal. 96, 99; People v. Northey, 77 Cal. 618, 629, 8 Am. Cr. Rep. 338, 19 Pac. 865, 20 Id. 129. See People v. Breen, 130 Cal. 72, 75, 62 Pac. 408. 7. Failure to indorse names of witnesses on indictment does not render such witnesses incompetent to testify. People v. Symonds, 22 Cal. 348, 353; People v. Lopez, 26 Cal. 112, 114. As to necessity of inclosing names of witnesses on indictment, see, post, § 48 and note. As to waiver of failure to indorse name of 9. Where witness appeared before grand jury and gave his name as F. D., indorsement of his name on indictment as F. D. is authorized, though in fact his name was G. D., especially as it appeared probable that there was only one person of name of D. in county or state.-People v. Crowey, 56 Cal. 36, 38. 10. Indorsement of name of Mrs. E. O. on indictment will not justify setting aside indictment, when it appeared that Mrs. Susie O. was witness, where grand jurymen testified that Mrs. Susie O. was presented to grand jury as witness, and it also appeared that she was wife of E. O.-People v. Breen 130 Cal. 72, 75, 62 Pac. 408. 11. Fact that list of witnesses before grand jury has indorsed upon indictment the last name without the first name or initial is harmless irregularity, where defendant, almost immediately after finding of indictment, knew particular person who was named in indictment. People v. Quinn, 127 Cal. 542, 59 Pac. 997. § 944. INDICTMENT, HOW PRESENTED AND FILED. An indictment, when found by the grand jury, must be presented by their foreman, in their presence, to the court, and must be filed with the clerk. History: Enacted February 14, 1872, re-enactment of § 233 Criminal PRESENTING INDICTMENT. 1. Construed Prescribes how indictment must be presented. 2. "Presented and filed in open court." 1. Construed — Prescribes how indictment must be presented.-People v. Colby, 54 Cal. 37, 38. 2. "Presented and filed in open court" this fourteenth day of March. A. D. 1864, signed by county clerk, is sufficient indorsement or presentment of indictment.-People v. Blackwell, 27 Cal. 65, 67. § 945. PROCEEDINGS WHEN DEFENDANT IS NOT IN CUSTODY. When an indictment is found against a defendant not in custody, the same proceedings must be had as are prescribed in sections nine hundred and seventy-nine to nine hundred and eighty-four, inclusive, against a defendant who fails to appear for arraignment. History: Enacted February 14, 1872, re-enactment of § 234 Criminal 1. Construed-As not affected by any pre- 2. Failure to arrest-Effect of. 1. Construed.-As not affected by any previous act, in relation to offense, and hence bench-warrant was properly issued against defendant, though he had been previously admitted to bail and discharged from custody by county judge after commitment by justice of peace. Ex parte Cook, 35 Cal. 107, 109. 2. Failure to arrest-Effect of.-Unless arrest is effected, case can proceed no further, though indictment may be found against one not in custody, steps providing for his arrest being provided for by this section. People v. Redinger, 55 Cal. 290, 298, 36 Am. Rep. 32. CHAPTER II. RULES OF PLEADING AND FORM OF THE INDICTMENT. $948. Form of and rules of pleading. § 950. Indictment or information, what must $ 951. Form of indictment. § 952. Indictment must be direct and certain. § 953. When defendant is indicted by fictitious name, etc. § 954. May charge different offenses under separate counts relating to same act. Prosecution not required to elect between different counts. 955. Statement as to time when offense was committed. § 956. Statement as to person injured or intended to be. § 957. Construction of words used in an indictment or information. § 958. Construction of words used in a statute. § 959. Indictment or information, when sufficient. § 960. Indictment, etc., when not insufficient. § 961. Presumptions of law, etc., need not be stated. $962. Judgments, etc., how pleaded. § 963. Private statutes, how pleaded. § 965. Pleading in indictment or information § 966. Pleading in an indictment or information for perjury or subornation of perjury. § 967. § 968. Pleading in indictment or information for larceny or embezzlement. Pleading in an indictment or information for selling, etc., lewd and obscene books. § 969. Previous conviction of another offense. § 970. Indictment against several, one or more may be acquitted. § 971. Distinction between accessory before the fact and principal abrogated. § 972. Accessory may be indicted and tried though principal has not been. § 948. FORM OF AND RULES OF PLEADING. 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. History: Enacted February 14, 1872, re-enactment of § 235 Criminal INDICTMENT OR INFORMATION- 1. As to construction of constitutional 2, 2a. As to construction of section-Abolishes old forms and rules. 3, 4. Same-Penal Code does not work an abolition of all rules. 5. Bill of particulars of evidence. 6-8. Charging different offenses. 9. Date of offense-As to whether material ingredient of offense charged. 10. Defect in indictment-Not considered on appeal from order denying new trial. 11, 12. Description of offense-In language of statute-Sufficiency of. 13- 15. Evidence to sustain indictment-Vari ance. 16. Filing information - Presumption of prior valid examination. 17, 18. Filing second indictment. 19. Joinder of counts. 20. Names of witnesses-Indorsement of. 21, 22. Negativing exceptions in statute. 23. Pleading Distinct offenses alleged under different counts relating to same transaction. 24. Same Pleading particulars- As to purpose of. 25. Rules with relation to framing of indictments and informations-Matters of statutory control. 26. Setting aside indictment for. Grounds 27, 28. Sufficiency of indictment-Not to be tested by rules of common law. 29, 30. When verified complaint insufficientJuvenile court law. As to criminal syndicalism and sufficiency of the indictment, see, post, § 952, note pars. 11-18. As to indorsement of indictment, see, ante, § 940 and note. 1. As to construction of constitutional provision-In general.-When the present constitution speaks of offenses heretofore required to be prosecuted by indictment, the old constitution is re-enacted and the same offenses as were required under it to be prosecuted by indictment are still required to be so prosecuted, except to the extent that the procedure under the old constitution has been remodeled in the present one by permitting, in addition to indictment, the new procedure by information after examination and commitment by a magistrate.-Ex parte Westenberg, 167 Cal. 309, 139 Pac. 674. 2. As to construction of section.-Abolfshes old forms and rules and establishes new ones. People v. Cronin, 34 Cal. 191, 208. 2a. No more is required than that an indictment be direct and certain and allege all the acts and facts which the legislature has said shall constitute the offense.-Peɔple v. Fowler, 88 Cal. 136, 138, 25 Pac. 1110; People v. Malley, Cal. App. -, 194 Pac. 48. 3. Same.-Penal Code does not work an abolition of all rules which wisdom of common law had thrown around criminal proceedings for safety of citizen, but its main object was simplification of practice and pleading in criminal cases, by removing unmeaning technicalities which were found to defeat justice rather than protect innocent.-People v. Aro, 6 Cal. 208, 209, 65 Am. Dec. 503. 4. It was designed to work same change in pleading and practice in criminal actions which is wrought by Civil Code in civil actions, and substitutes, in place of common-law system, new system of pleading and practice which retains all elements of former, so far as they are made necessary by due regard to substantial rights of defendant, but disregards all such elements as serve no good purpose and only tend to embarrass and defeat administration of justice. People v. King, 27 Cal. 507, 511, 87 Am. Dec. 95. 5. Bill of particulars of evidence relied on to support indictment is not required by any section of code nor authorized by law, hence can not be demanded by defendant.-People v. Alviso, 55 Cal. 230, 232. 6. Charging different offenses.-Where it is sought to charge in one indictment or information different offenses all relating to the same act, transaction or event, as is now permitted by section 954 of the Penal Code, the pleading should fairly show on its face that the offenses SO charged do all relate to the same act, transaction or event.-People v. Plath, 166 Cal. 227, 135 Pac. 954. As to joinder of counts, see pars. 19, 23, this note. 7. Under section 954 of the Penal Code as amended in 1905, an indictment or information may charge different offenses, but they must all relate to the same act, transaction, or event.-People v. Johnson, 22 Cal. App. 362, 134 Pac. 339. 8. An information which charges a corporate officer with not only publishing but concurring in the publication of a false financial statement is not objectionable as charging more than one offense.-People v. Youtz, 26 Cal. App. 440, 147 Pac. 222. of the offense charged; and it would have been sufficient if the indictment had charged generally that the crime was committed at any time within the period of the statute of limitations, which was prior to the finding of the indictment.-People v. Anthony, 20 Cal. App. 586, 129 Pac. 968, 970. 10. Defect in indictment-Not considered on appeal from order denying new trial.— A defect in an information can not be considered on an appeal from an order refusing a motion for a new trial.-People v. Sanchez, 23 Cal. App. 742, 139 Pac. 820. 11. Description of offense-In language of statute-Sufficiency of.-While, as a general rule, it is sufficient to charge an offense in the language of the statute, yet there are recognized exceptions thereto. If the statute does not express fully the facts necessary to constitute a complete offense, it will not be sufficient to charge it in the terms of the statute; but, in such case, the particular circumstances of the offense necessary to constitute a complete offense must be averred, and a failure to do so will vitiate the information or indictment. -People v. Earl, 19 Cal. App. 69, 124 Pac. 887. As to when the charge of the crime may be in the language of the statute, see note, 94 Am. Dec. 253. 12. While an indictment is sufficient when the crime is substantially alleged in the words of the statute, or their equivalent, yet if the facts stated are susceptible of two constructions, upon one of which the facts may be true and not constitute a crime, the indictment is insufficient, and can not be aided by presumptions.-People v. Allison, 25 Cal. App. 746, 145 Pac. 539. 13. Evidence to sustain indictmentVariance.-Courts can not, in the absence of a statute permitting it, inquire into the sufficiency of the evidence upon which the grand jury acted, in order to invalidate an indictment returned by them. People v. Panagoit, 25 Cal. App. 158, 143 Pac. 70. 14. It is held herein that with reference to the contention that the proof adduced at the trial is at variance with the allegations of the information with respect to the date of the commission of the alleged offense, that the district attorney had the right to elect, and did elect, upon the suggestion of the counsel for the defendant, to rest upon a particular transaction as the foundation of his case, and that the defendant through his counsel acquiesced in that election.-People v. Amadio, 25 Cal. App. 729, 145 Pac. 151. 15. It is the general rule that if the act is shown to have been committed prior to the filing of the information, and within the period of the statute of limitations, no complaint can be made on the ground of variance.-People v. Amadio, 25 Cal. App. 729, 145 Pac. 151. 16. Filing information-Presumption of prior valid examination.-The filing of an |