Tit. V, ch. II.] INDICTMENT-MUST BE DIRECT AND CERTAIN. Cal. 629; People v. Kelly, 59 Cal. 372, 378; People v. Rozelle, 78 Cal. 84, 87, 20 Pac. 36; People v. Ward, 110 Cal. 369, 372, 42 Pac. 894; People v. Carpenter, 136 Cal. 391, See People v. Garcia, 25 392, 68 Pac. 1027. Cal. 531, 533; People v. Saviers, 14 Cal. 29, 30; People v. English, 30 Cal. 214, 215. As to description of offense, see note 58 Am. Dec. 696; and brief 4 L. R. A. 757, 758. As to charging offense in language of statute, see notes 87 Am. Dec. 475; 94 Am. Dec. 252; 61 Am. St. Rep. 409; 64 Am. St. Rep. 516; 7 Am. Cr. Rep. 259; 11 L. R. A. 530; briefs in 7 L. R. A. 325; 21 L. R. A. 387; 34 L. R. A. 178, 179. As to information for statutory offense, see notes 36 Am. Dec. 502; 11 L. R. A. 531; 13 L. R. A. 607. or describes 37. When statute defines acts which shall constitute particular ofin sufficient indictment to it is fense, describe these acts in language employed in statute, applying them, of course, concretely to person charged.-People v. Ward, 110 Cal. 369, 371, 42 Pac. 894; People v. Mahony, 145 Cal. 104, 106, 78 Pac. 354. of38. Where statute introduces new fense, without reference to anything else, it is sufficient if indictment describe offense in terms of act.-People v. Saviers, 14 Cal. 29, 30. 39. Same-Illustrations-Indictment assault with deadly weapon.-See, § 245, note part III. for ante, 40. Same-Same-Indictment for assault with intent to commit murder.-See, ante, § 217, note part II. Information for 41. Same Same bribery which follows language of statute is sufficient.-People v. Seeley, 137 Cal. 13, 16, 69 Pac. 693. 42. Information charging that defendant did give bribe is sufficient, in that it does not allege acts and facts which legislature had said would constitute offense, material acts being giving of something of value or advantage.-People v. Ward, 110 Cal. 369, 371, 42 Pac. 894. 43. lary. Same Same—Information for burgSee, ante, § 459 and note. for viola44. Same-Same-Indictment tion of election laws.-See, ante, § 45, note pars. 4-6. 45. Same-Same-Indictment for embezzlement in language of statute held sufficient.-People v. Page, 116 Cal. 386, 391, 48 Pac. 326. 46. Same-Same-Indictment for forgery. -People v. Harrold, 84 Cal. 567, 570, 24 Pac. 106. See, ante, § 470 and note. Same-Same-Indictment for gaming. 48. Same-Same-Indictment for making false entry in corporate books, held not to this section.-People to conform Palmer, 53 Cal. 615, 616. P. C.-60 V. 945 49. Same-Same-Indictment for murder. -People v. Murray, 10 Cal. 309, 310. See, ante, § 187, note part V. 50. Same-Same-Indictment for obtaining money by trick or device by use of cards. See, ante, § 332, note par. 7. 51. Same-Same-Indictment for perjury or subornation of perjury which follows closely language of statute is sufficient.People v. Parsons, 6 Cal. 487, 488; People v. Carpenter, 136 Cal. 391, 392, 68 Pac. 1027. 52. Same-Same-Indictment for placing wife in house of prostitution.-See, ante, § 266g and note. 53. Same-Same-Indictment for receiving stolen property in language of statute is sufficient.-People v. Avila, 43 Cal. 196, 199. 54. Same-Same-Information for resisting and obstructing an officer.-See, ante, § 148, note par. 6. 55. qualifications Negative Samemerely, need not be averred, but must be of defense in matter as relied upon progress of trial.-People v. Nugent, 4 Cal. 341. statute, As to negativing exception in see notes 93 Am. Dec. 251, 65 Am. St. Rep. 251, 10 Am. Cr. Rep. 455, 9 L. R. A. 853. circumparticular 56. Same- Where stances are necessary to constitute a comnot plete offense, statutory language is 369, sufficient.-People v. Ward, 110 Cal. 372, 42 Pac. 894; People v. Ammerman, 118 Cal. 23, 26, 50 Pac. 15; People v. Perales, See People 141 Cal. 581, 583, 75 Pac. 170. v. Neil, 91 Cal. 465, 467, 27 Pac. 760. 57. Though statute is silent as to such facts.-People v. Ammerman, 118 Cal. 23, 26, 50 Pac. 15. 58. Where statute defines offense by use of precise and technical words which have well-recognized meaning, or designates and specifies particular acts or means whereby offense may be committed, it is sufficient to charge it in language of statute, but where from language used many things may be done to constitute offense, it is necessary to set forth particular things or acts charged to have been done with reasonable certainty and distinctness. So, also, where terms used in statute have no technical or precise meaning, which, of themThus information selves, imply offense. charging assault by means likely to produce great bodily injury, to wit, a heavy wooden stick, though in language of statute as to means likely to produce great bodily injury, does not contain sufficient definition of instrument used as to show that it was deadly weapon.-People v. Perales, 141 Cal. 581, 583, 75 Pac. 170. Where fraud is element of 59. Sameoffense, and statutory definition of crime merely includes general term "fraud" or "fraudulently," without any description of acts which shall constitute fraud, it is necessary to set up facts showing fraud.People v. Mahony, 145 Cal. 104, 107, 78 Pac. 354. See People v. McKenna, 81 Cal. 158, 160, 22 Pac. 488; People v. Neil, 91 Cal. 465, 466, 27 Pac. 760. 60. Information charging obtaining of property by false and fraudulent representations and pretenses is not sufficient. Particular representations and pretenses must be alleged.-People v. McKenna, 81 Cal. 158, 160, 22 Pac. 488. See Ex parte Williams, 121 Cal. 328, 330, 53 Pac. 706. 61. Indictment charging defendant with attempt to defraud city, which merely alleges fraud in terms of statute, is insufficient.-People v. Mahony, 145 Cal. 104, 107, 78 Pac. 354; overruling People v. Carolan, 71 Cal. 195, 12 Pac. 52. 62. Information that defendant fraudulently voted is insufficient, though such are words of statute.-People v. Neil, 91 Cal. 465, 467, 27 Pac. 760. 63. Same-Where several separate, different, and distinct acts are enumerated commission of each or any of which constitutes crime, it is not sufficient to charge defendant with being guilty of crime without further charging commission of particular act or acts upon which crime is based. Thus an indictment for violation of purity of elections act, in language of statute, is not sufficient without specifying which act was committed.-People v. Lee, 107 Cal. 477, 480, 40 Pac. 754. § 953. WHEN DEFENDANT IS INDICTED BY FICTITIOUS NAME, ETC. When a defendant is charged by a fictitious or erroneous name, and in any stage of the proceeding 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. History: Enacted February 14, 1872, re-enactment of § 240 Criminal INDICTMENT UNDER FICTITIOUS 1. Constitutional. NAME. 2. Designation by alias dictus. 3, 4. Designation of defendant by different names. 5. Identification of defendant. 6, 7. Verdict. 1. Constitutional. As names are but sounds to designate single individuals, so it does not matter whether the accused is charged by one name or another, except to identify his person, unless it be that he may not be put on trial second time by different name for same offense, consequence which is easily avoided by plea or giving his true name on arraignment.— People v. Kelly, 6 Cal. 210, 213. See People v. Jim Ti, 32 Cal. 64; People v. Dick, 37 Cal. 277, 280; Brazier v. State, 44 Ala. 390; State v. White, 32 Iowa 17, 19; State V. Barnes, 8 Nev. 251, 256. 2. Designation by alias dictus.-No plea of abatement lies in case of misnomer, and no new indictment becomes necessary for such irregularity. If at any time defendant's true name is discovered, it is used in all future steps, and therefore use of alias dictus is rendered unnecessary; yet where defendant has been convicted under such other names, it is proper to allege convictions under such names, and reading of such indictment by jury is not error.People v. Maroney, 109 Cal. 277, 280, 41 Pac. 1097. 3. Designation of defendant by different names in information is not ground for set ting aside information, where true name was inserted at time of trial on defendant's statement that such was his name.People v. Le Roy, 65 Cal. 613, 615, 4 Pac. 649. 4. Where, on arraignment, prisoner was asked if name in indictment was his own name, and he stated that his name was Jim Ti, and such name was substituted on record, fact that he was indicted under name of Ah Ki and tried under name of Jim Ti, is immaterial.-People v. Jim Ti, 32 Cal. 60, 64. 5. Identification of defendant.-Where indictment charges defendant as John Doe, a Chinese person, such indictment is insufficient, as it appeared therefrom that such name is fictitious, and grand jurors were unable to identify person whom they were indicting.-United States v. Doe, 127 Fed. 982. 6. Verdict finding defendant guilty under name given in indictment is fatally defective where there is nothing to indicate that such person, as defendant, really tried under indictment charging defendant under one name while on arraignment he stated his true name to be different one.-People v. Ah Ye, 31 Cal. 451, 454. 7. Where, on arraignment, defendant stated that his name was not given in indictment, and his correct name was substituted, use of original name in verdict does not render it defective, where judgment was rendered against defendant in his proper name.-People v. Ah Kim, 34 Cal. 189, 190. See Plumley v. State, 8 Tex. App. 529, 531. § 954. MAY CHARGE DIFFERENT OFFENSES UNDER SEPARATE COUNTS RELATING TO SAME ACT. PROSECUTION NOT REQUIRED TO ELECT BETWEEN DIFFERENT COUNTS. The indictment or information may charge two or more different offenses connected together in their 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. History: Enacted February 14, 1872, substantial re-enactment of § 241, Criminal Practice Act 1851, Stats. 1851, p. 238; amended March 30, 1874, Code Amdts. 1873-4, p. 437; April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 13; March 22, 1905, Stats. and Amdts. 1905, p. 772; May 22, 1915, Stats. and Amdts. 1915, p. 744. In effect August 8, 1915. 7. Same-Object of section is to present distinct issue. 8. Election-As to right of court to compel. 9. Name given to offense charged. 10, 11. Series of acts-Any of which separately or all together may constitute offense. 12-15. Single offense-May be charged in sev- 16- 18. Same-"Said" and "aforesaid." 21. Two offenses-Charging in different counts. - 35, 36. Same Same Same Larceny Laying ownership in different per sons. 37. Same-Same-Same-Larceny by one person-Receiving by another. 38. Same Same-Same-Larceny - Prior conviction charged. 39. Same Same Same-Murder charged -Three persons killed. 40. Same-Same-Same-Receiving stolen property-Buy and receive." 41-43. Same-Same-Present practice. 44. Same Same - Same-Conformity to requirements - Demurrer does not raise objection of want of, when. 45. Same-Same-Same-Election not re quired. 46. Same-Same-Same-Forgery- False pretense. 47, 48. Same-Same-Same-Grand larceny— With charge of obtaining money under false pretenses. 49, 50. Same-Same-Same-Rape charged— And lewd and lascivious conduct. 51, 52. Same Same-Same-Rape alleged— Three counts charged separate offenses. 53. Same-Same-Same-Two intents alleged-Injury to person and injury to property. 54. Same-Same-Same-Verdict on each count-Judgment and sentence. 1. Construction of section-As to generally. There is no distinction in principle between the provision authorizing the charge of two different offenses relating to the same act or event, and those provisions of the criminal law which authorize a jury in a case where the offenses charged embrace more than one crime, to return a verdict of guilty of any one of the offenses comprehended within the one charged, which the evidence justifies or warrants. People v. Piner, 11 Cal. App. 542, 545, 105 Pac. 780. 2. Same-Amendment of 1905 to this section was intended to authorize the statement in an indictment or information of two or more distinct offenses where the same grew out of precisely the same act, transaction or event, and while the language of the section with regard to this proposition is itself clear and unquestionable, if it required the aid of consideration in order to gather its true meaning, there would be no necessity of going further than that part of the section itself wherein it is expressly provided that "charges of offenses occurring at different and distinct times and places must not be joined."People v. Piner, 11 Cal. App. 542, 545, 105 Pac. 780. 3. Section 954, as amended in 1905 Stats. and Amdts. 1905, p. 7720, clearly intended to permit the charging of different offenses in different counts of the same indictment or information, where different offenses all relate to the same act, transaction or event. The court say: "The section as it is now written has been the law of this state since 1905, and yet no case has yet been before this court where the prosecuting officer has availed himself of its provisions. It is certain that by following the rule prescribed in this section any excuse for an appeal could be frequently avoided where doubt may exist as to whether the evidence will disclose a case of larceny, false pretenses, or embezzlement. In under this section it is, of course, necessary that care be taken to make it clearly appear that the offense set forth relates to but one act, transaction, or event; but any charging if this be done, no harm can result from charging under different counts So as to meet every possible view of the facts."People v. Miles, 19 Cal. App. 223, 228, 125 Pac. 250, citing People v. Jailles, 146 Cal. 303, 79 Pac. 965. See People v. Hatch, 163 Cal. 368, 372, 125 Pac. 907. 4. Same-Has not changed rules of pleading so as to require more specific allegation of means employed in commission of offense than was necessary under Criminal Practice Act.-People v. Weaver, 47 Cal. 106, 107. 5. Practice of pleading in different counts varying statements of first. prevailed at common law, and has not been changed by statute.-People v. Beatty, 14 Cal. 567, 572. 6. Same-Object of allowing different counts is to provide against fatal variance between material parts of indictment and proofs brought forward in their support. -People v. Thompson, 28 Cal. 214, 216. 7. Same-Object of section is to present distinct issue for trial, and clearly inform defendant of that with which he is to be charged, that he may be prepared to meet it.-People v. Cunningham, 66 Cal. 668, 4 Pac. 1144, 6 Pac. 700, 846. 8. Election-As to right of court to compel. It is doubted whether court has right to compel prosecution to elect which count of indictment he will try accused upon, as statute provides such objection can only be taken advantage of by demurrer.-People v. Shotwell, 27 Cal. 394, 401. As to election not required under amendment of 1905, see par. 45, this note. As to election between counts, see notes 92 Am. Dec. 660; 49 Am. St. Rep. 771. 9. Name given to offense charged or sought to be charged by statement of facts constituting offense is not of itself charge of an offense. Thus where indictment charged defendant with assault with intent to murder, and fact showed different offense, indictment is not defective as charging two offenses.-People v. Cuddihi, 54 Cal. 53, 54. 10. Series of acts-Any of which separately or all together may constitute offense, may all be charged in a single count, for the reason that, notwithstanding each act may by itself constitute offense, all of them together do no more, and likewise constitute one and same offense.People v. Frank, 28 Cal. 507, 513; People v. Sheldon, 68 Cal. 434, 436, 9 Pac. 457; Ex parte McCarthy, 72 Cal. 384, 14 Pac. 96; People v. Harrold, 84 Cal. 567, 24 Pac. 106; People v. Gosset, 93 Cal. 641, 643, 29 Pac. 246; People v. Leyshon, 108 Cal. 440, 442, 41 Pac. 480; People v. Gusti, 113 Cal. 177, 179, 45 Pac. 263. 11. Where statute makes two or more distinct acts connected with same transaction indictable, each one of which may be considered as representing stage in same offense, they may be coupled in one count, or prisoner may be indicted and convicted for each distinct crime of which he was proved guilty.-People v. Shotwell, 27 Cal. 394, 401. 12. Single offense-May be charged in separate counts without being amenable to objection of charging more than one offense. People v. Garcia, 58 Cal. 102, 103; People v. Smith, 103 Cal. 563, 565, 37 Pac. 516; People v. Jailles, 146 Cal. 301, 79 Pac. 965; People v. Airola, Cal. App. - 188 Pac. 817. 13. This must be done in such way as to show clearly upon face of indictment or information that matters set forth in different counts are descriptive of one and same offense.-People v. Garcia, 58 Cal. 102, 103; People v. Jailles, 146 Cal. 301, 79 Pac. 965. 14. Indictment in two counts referring in second to first in such manner as to identify offense charged as same already described, does not state two offenses.People v. Ah Sam, 41 Cal. 645, 649. 15. The fact that indictment for burglary charging offense in two counts described house in which offense was committed in both counts exactly alike, but with no reference from one count to other that it was same house, will not render it defective, identity of description being prima facie evidence of house.-People v. Thompson, 28 Cal. 214, 218. 16. Same-"Said" and "aforesaid" are equivalent expressions in second count of indictment, and will generally be found indispensable, in order to fix identity of offense therein stated with that contained in first count.-People v. Thompson, 28 Cal. 214, 217. 17. Material allegations in first count can not be imported into second or other count by referring to them by use of word "said," and second would be fatally defective. Every separate count should charge defendant as if he had committed distinct offense, and, as a rule, any count from which commencement or statutory conclusion is omitted is bad.-People v. Ellenwood, 119 Cal. 166, 168, 51 Pac. 553. 19. Same-Where one count defective.— Where indictment consists of two counts, which were held to be good by trial court, and evidence introduced under both, and general verdict of guilty rendered, but one of counts was bad, verdict will be set aside. -People v. Smith, 103 Cal. 563, 566, 37 Pac. 516. See People v. Mitchell, 92 Cal. 590, 592, 28 Pac. 597; People v. Turner, 113 Cal. 278, 281, 45 Pac. 331. 20. Same Where uttering as well as forging charged. An indictment for forgery charging in one count forging of instrument and in second count uttering and publishing of forged instrument must allege in each count that defendant knew instrument was forged.-People v. Smith, 103 Cal. 563, 565, 37 Pac. 516. 21. Two offenses-Charging in different counts - Former practice. Under the former practice in this state two offenses could not be charged in an indictment or information.-People v. Alibez, 49 Cal. 452, 453, 1 Am. Cr. Rep. 345. As to allegation of separate offenses in one count, see note 7 Am. Cr. Rep. 253. As to joinder of several offenses in indictment, see notes 58 Am. Dec. 238; 9 L. R. A. 182; 47 Am. Dec. 601; 52 Am. Dec. 499; 65 Am. Dec. 386; 49 Am. St. Rep. 771; 6 Am. Cr. Rep. 284; 9 Am. Cr. Rep. 348; 10 Am. Cr. Rep. 328; 9 L. R. A. 182. 22. Same-Same-Same — Accessory and principal-Charged in different counts.-Indictment charging one as accessory and principal in separate counts as charging two offenses.-See, ante, § 31, note pars. 105-110, 115-120. 23. Same-Same-Same-Arson in burning two buildings-One act.-Indictment charging arson in burning two buildings is not defective as charging two offenses, where they constituted but one act.People v. Phipps, 39 Cal. 326, 332. 24. Same Same — Same — Assault with weapons deadly weapon-Two charged.. Information charging assault with deadly weapon in one count, to wit, a bar of iron, then and there being at distance of three feet from person assaulted, and in the second count with deadly weapon, to wit, a rifle, then and there being within ten feet of person assaulted, charges two offenses, and is fatally defective.-People v. Garcia, 58 Cal. 102, 103. As to charging two offenses in information for assault with deadly weapon, see, ante, § 245, note part III. 25. Same Same Same-Same-Intent to murder does not state two separate offenses within the prohibition of the rule. -People v. Beam, 66 Cal. 394, 396, 5 Pac. 677. 26. Same Same Same - Attempt to steal two children-One act.-An information charging attempting to take and entice away two children is not defective as charging two offenses, offense not consisting in number but in act or intent.-People v. Milne, 60 Cal. 71. |