§ 967. PLEADING IN INDICTMENT OR INFORMATION FOR LARCENY OR EMBEZZLEMENT. 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. History: Enacted February 14, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 438: April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 15. INDICTMENT CHARGING LARCENY OR EMBEZZLEMENT. 1. Construed-Applies to information for obtaining money upon false pretenses. 2. Same-Applies to prosecution for robbery. 3. Certain bank check." 4- 7. Coin-Number, denomination, or kind 8- 10. "Lawful money of United States." 12. Same-Information for robbery describ- 1. Construed-Applies to information for obtaining money by false pretenses.-People v. Millan, 106 Cal. 320, 323, 39 Pac. 605. 2. Same-Applies to prosecution for robbery, though not, in terms, applying to such offense.-People v. Chuey Ying Git, 100 Cal. 437, 439, 34 Pac. 1080. 3. "Certain bank check"-Drawn on H. on bank of Y., in favor of one P., for certain sum, sufficiently describes check.People v. Arras, 89 Cal. 223, 226, 26 Pac. 766. 4. Coin-Number, denomination, or kind of money embezzled need not be specified. -People v. Cobler, 108 Cal. 538, 541, 41 Pac. 401. 5. As to description of particular coin held sufficient, see People v. Nelson, 56 Cal. 77, 78. 10. An indictment for embezzlement of money which does not describe money embezzled nor aver it to have been lawful money of United States, is fatally defective.-People v. Cox, 40 Cal. 275, 277. 11. Value of each particular coin-Need not be given, where indictment for larceny describes it as certain species of coin and gives total value.-People v. Green, 15 Cal. 512, 513. 12. Same Information for robbery describing property taken as personal property, to wit, money, jewelry, and hairornaments, is sufficient to support judgment.-People v. Chuey Ying Git, 100 Cal. 437, 439, 34 Pac. 1080. § 968. PLEADING IN AN INDICTMENT OR INFORMATION FOR SELLING, ETC., LEWD AND OBSCENE BOOKS. 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. History: Enacted February 14, 1872; amended April 9, 1880, Code § 969. PREVIOUS CONVICTION OF ANOTHER OFFENSE. 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 petty 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 petty 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. History: Enacted February 14, 1872; amended March 30, 1874, Code PREVIOUS CONVICTION OF ANOTHER OFFENSE. 1. As to original section-Absolutely repealed by amendments. 2. Amendments constitutional. 3. Averment of previous conviction surplusage. 4. Construed-Applies to prosecutions by information. 5. Distinct charge. 6. Plea-After repeal of section. 7. Previous conviction of grand larceny-Followed by subsequent commission of same offense, etc. 8. Proof-Since repeal of section. 1. As to original section absolutely repealed by amendments to Penal Code, Code Amdts. 1880 (Pen. pt.), pp. 10, 14.-People v. King, 64 Cal. 338, 340, 30 Pac. 1028. 2. Amendments to Penal Code 1880 (Pen. pt., p. 10) repealing section 969-Held constitutional.—People v. Oates, 142 Cal. 12, 13, 75 Pac. 337. 5. Distinct charge.-The statement that defendant had previously been convicted of larceny is not distinct charge of larceny to be tried under information after repeal of this section.-People v. Boyle, 64 Cal. 153, 154, 28 Pac. 232. 6. Plea-After repeal of this section, arraignment under an indictment charging previous conviction must be had under statute as it was left unrepealed (see, post, § 1017); SO that where defendant had pleaded not guilty to offense charged, he could not afterwards withdraw his plea of not guilty and plead guilty to charge of prior conviction.-People v. Lewis, 64 Cal. 401, 403, 1 Pac. 490. 7. Previous conviction of grand larceny -Followed by subsequent commission of same offense or of petty larceny was intended to constitute an aggravated offense for which offender ought to be punished for felony, but charge of previous conviction, which entered into and made part of aggravated offense, was one which accused had right to plead and for which he had right to be tried as in other cases.-People v. King, 64 Cal. 338, 340, 30 Pac. 1028. § 970. INDICTMENT AGAINST SEVERAL, ONE OR MORE MAY BE ACQUITTED. Upon an indictment or information against several defendants, any one or more may be convicted or acquitted. History: Enacted February 14, 1872, re-enactment of § 254 Criminal 1. Conviction of one-of two or more persons who may be jointly or severally indicted for the same offense no more tends to prove innocence of another than would acquittal of one prove guilt of another.-People v. Johnson, 47 Cal. 122, 124. § 971. DISTINCTION BETWEEN ACCESSORY BEFORE THE FACT AND PRINCIPAL ABROGATED. 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. History: Enacted February 14, 1872, substantial re-enactment of § 255 Criminal Practice Act 1851, Stats. 1851, p. 240; amended March 30, 1874, Code Amdts. 1873-4, p. 438; April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 15. As to who are principals and inclusion of aiders and abetters, see ante, § 31. ACCESSORIES AS PRINCIPALS. 1. As to construction of section-Constitutional. 2. Same Same Sixth amendment to 3. Same-Intention of legislature. 5. Accessory as principal. 6. Accessories and principals-Distinction abolished. 7. Same-Instruction. 8. "Accomplice"-Means what. 9. Conspiracy by two to commit a crime together-One to perform the actual criminal act. 77 Pac. 774. See People v. Campbell, 40 Cal. 129, 141; People v. Outeveras, 48 Cal. 19, 23; People v. Rozelle, 78 Cal. 84, 89, 20 Pac. 36. 4. "Abetted" and "abetting”—Includes knowledge of the wrongful purpose of the perpetrator, and counsel and encouragement in the crime.-People v. Ah Gee, 37 Cal. App. 1, 174 Pac. 371; People v. William Yee, 37 Cal. App. 579, 174 Pac. 343. 5. Accessory as principal.-One not present, aiding or abetting in the commission of an offense can not be convicted as principal.-People V. Roderiquez, 16 Cal. App. 360, 116 Pac. 986. 6. Accessories and principals—Distinctions abolished.-The distinction between an accessory before the fact and a prin 10. Conviction as principal where acting. cipal is abolished and no other facts need as accomplice. be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.-People v. Lewis, 9 Cal. App. 279, 281, 98 Pac. 1078. 7. Same Instruction in prosecution charging homicide by the placing and exploding of a bomb, telling the jury to the effect that, even though they should find that some person other than the defendant had feloniously placed the bomb at the scene of the explosion which resulted in the killing of the deceased, if they further find that the defendant wilfully and unlawfully aided and abetted such person and assisted him to obtain, manufacture or explode the bomb, then the defendant was a principal in the commission of the crime charged, is not erroneous upon the ground that it did not limit, nor attempt to limit, the jury to a finding that the defendant personally performed the physical act of depositing the bomb at the place where the crime was committed; notwithstanding the fact that the court had previously instructed the jury that the theory of the prosecution was that the defendant had placed the bomb with the intent and purposes charged in the indictment.-People v. Billings, 34 Cal. App. 549, 168 Pac. 396. 8. "Accomplice”—Means an accomplice in the commission of the offense charged and for which the defendant is on trial.— People v. Ruef, 14 Cal. App. 876, 114 Pac. 54. 9. Conspiracy by two of commit crime together-One to perform the actual criminal act and the other to do something conceived to be as necessary, and such other aids and abets in the commission of the criminal act, although he may not be actually present at the time and place when the final criminal act is committed, he is a principal in the crime, regardless of what may have been the character, nature, quality, or extent of the assistance contributed by him toward its consummation, or the execution of the intent jointly formed by him and the actual perpetrator of the criminal act to the wrongful act.-People v. Ah Gee, 37 Cal. App. 1, 174 Pac. 371. 10. Conviction as principal where acting as accomplice.-The mere fact that the indictment charged the defendant solely as a principal is not sufficient to prevent his conviction as such principal, even though he acted as an accomplice or accessory.People v. Liera, 27 Cal. App. 346, 149 Pac. 1004. 11. Criminal Practice Act, section 255Construed not to be in conflict with section 93 of Criminal Practice Act, it requiring that an accessory shall be indicted, tried, and punished in same manner as principal, and section 93, fixing place at or in which events are to occur, so distinction between an accessory and principal is retained for purpose of venue. People v. Hodges, 27 Cal. 340, 342. 12. Not inconsistent with rule that though an accessory before fact may be tried, convicted, and punished as principal. indictment must specify that he aided and abetted crime and must state in what particular manner he aided and abetted it, and an indictment charging that defendant in person committed crime will not be sustained by proof that he only aided and abetted it.-People v. Campbell, 40 Cal. 129, 141. 13. Robbery-Aider and abetter as principal-Evidence, sufficiency of.-In a case where a defendant is charged as a principal on the theory that, although not present at the time of the robbery, he aided and abetted in its commission, it is not necessary for the prosecution to prove that a detailed plan of the robbery had been arranged among the parties participating therein; neither is it necessary to show conversation between the accused and the other parties; conversation may not have been necessary, where the circumstances lead inevitably to the conclusion that the accused participated in the fruits of the crime with guilty knowledge and criminal intent.-People v. Sartori, Cal. App. —, 184 Pac. 879. § 972. ACCESSORY MAY BE INDICTED AND TRIED THOUGH PRINCIPAL HAS NOT BEEN. 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. History: Enacted February 14, 1872, substantial re-enactment of § 256 Criminal Practice Act 1851, Stats. 1851, p. 240; amended March 30, 1874, Code Amdts. 1873-4, p. 439; April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 15. ACCESSORY MAY BE INDICTED AND TRIED ALONE. 1. Accessory may be indicted and tried together with principal. 2. Death of principal before time of trial. 3. Proof of guilt of principal necessary. 1. Accessory may be indicted and tried together with principal, or separately, and either may be convicted or acquitted without reference to previous conviction or acquittal of other.-People v. Bearss, 10 Cal. 68, 69; People v. Newberry, 20 Cal. 439, 441. 2. Death of principal before time of trial, without having been indicted or tried, will not prevent an accessory from being indicted and convicted. Gallot v. United States, 87 Fed. 446. 3. Proof of guilt of principal as charged in indictment is necessary, in order to sustain conviction of accessory. Ogden v. See State, 12 Wis. 532, 78 Am. Dec. 754. TITLE VI. OF PLEADINGS AND PROCEEDINGS AFTER INDICTMENT AND BEFORE THE COMMENCEMENT OF THE TRIAL. Chapter I. OF THE ARRAIGNMENT OF THE DEFENDANT, §§ 976-990. II. SETTING ASIDE THE INDICTMENT, §§ 995-999. III. DEMURRER, §§ 1002-1012. IV. V. VI. VII. VIII. PLEA, §§ 1016-1025. TRANSMISSION OF CERTAIN INDICTMENTS FROM THE COUNTY COURT ΤΟ THE THE MODE OF TRIAL, §§ 1041-1043. FORMATION OF THE TRIAL JURY, AND THE CALENDAR OR ISSUES FOR TRIAL, §§ 1046-1049. IX. POSTPONEMENT OF THE TRIAL, §§ 1052, 1053.. CHAPTER I. OF THE ARRAIGNMENT OF THE DEFENDANT. § 976. Defendant must be arraigned in the § 985. Ordering defendant into custody or incourt where indictment or informa tion was filed. § 977. Defendant when to be present at arraignment. $978. If in custody, to be brought before court. § 979. If discharged on bail, bench-warrant to issue. $980. Bench-warrant, by whom and how issued. § 981. Form of bench-warrant. § 982. Directions in the bench-warrant if the offense is bailable. $983. Bench-warrant, how served. $984. Proceeding on giving bail in another county. creasing bail when indictment is for felony. § 986. Defendant, if present when order made, to be committed; if not, benchwarrant to issue. § 987. Defendant, on arraignment, to be informed of his right to counsel. § 976. DEFENDANT MUST BE ARRAIGNED IN THE COURT WHERE INDICTMENT OR INFORMATION WAS FILED. When the indictment or information is filed, the defendant must be arraigned thereon before the court in which it is filed, unless the cause is transferred to some other county for trial. History: Enacted February 14, 1872, substantial re-enactment of § 258 Criminal Practice Act 1851, Stats. 1851, p. 240; amended April 9, 6. Same Same - When jurisdiction is "otherwise provided for." 7. Same-Of code section. 8. Distinction-Between high and low misdemeanor. 9. Jurisdiction-Is determined by nature of offense. 10. Same Is not affected by method of pro- 11. Same-What does not affect. 13. Legislative power-As to misdemeanors. As to how arraignment made, see, post, 988 and note. |