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affected by reason of any defect or imperfection in the manner of form which does not tend to the prejudice of a substantial right of the defendant upon its merits.

Enacted February 14, 1872, re-enactment of § 247 Criminal Practice Act 1851, Stats. 1851, p. 239; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 14. As to technical errors not affecting substantial rights, see post, §§ 1258, 1404.

Neither

§ 961. PRESUMPTIONS OF LAW, ETC., NEED NOT BE STATED. presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or information.

Enacted February 14, 1872, re-enactment of § 248 Criminal Practice Act 1851, Stats. 1851, p. 239; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 14.

§ 962. JUDGMENTS, ETC., HOW PLEADED. 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 constituting jurisdiction; but the judgment or determination may be stated as given or made, or the proceedings had. The facts constituting jurisdiction, however, must be established on the trial.

Enacted February 14, 1872, re-enactment of § 249 Criminal Practice Act 1851, Stats. 1851, p. 239.

§ 963. PRIVATE STATUTES, HOW PLEADED. 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.

Enacted February 14, 1872, re-enactment of § 250 Criminal Practice Act 1851, Stats. 1851, p. 239.

§ 964. PLEADING IN INDICTMENT FOR LIBEL. An indictment or information for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of 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.

Enacted February 14, 1872, re-enactment of § 251 Criminal Practice Act 1851, Stats. 1851, p. 239; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 14.

§ 965. PLEADING IN INDICTMENT OR INFORMATION FOR FORGERY, WHERE INSTRUMENT HAS BEEN DESTROYED OR WITHHELD BY DEFENDANT. 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.

Enacted February 14, 1872, re-enactment of § 252 Criminal Practice Act 1851, Stats. 1851, p. 239; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 14.

§ 966. PLEADING IN AN INDICTMENT OR INFORMATION FOR PERJURY OR SUBORNATION OF PERJURY. 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.

Enacted February 14, 1872, re-enactment of § 253 Criminal Practice Act 1851, Stats. 1851, pp. 239, 240; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p.

14.

As to perjury, see ante, § 118.

As to subornation of perjury, see ante, § 127.

§ 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.

Enacted February 14, 1872; amendment approved March 30, 1874, Code Amdts. 1873-4,

p. 438; April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 15.

As to charging separate offenses in different counts, see ante, § 954.

As to use of other words than those in statute of same import, see ante, § 958.

§ 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.

Enacted February 14, 1872; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 15.

§ 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.

Enacted February 14, 1872; amendment approved March 30, 1874, Code Amdts. 1873-4, p. 438; repeal approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 15; enactment approved of present section March 22, 1905, Stats. and Amdts. 1905, p. 772.

§ 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.

Enacted February 14, 1872, re-enactment of § 254 Criminal Practice Act 1851, Stats. 1851, p. 240; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 15.

§ 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 hte 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.

Enacted February 14, 1872, substantial re-enactment of § 255 Criminal Practice Act 1851, Stats. 1851, p. 240; amendment approved March 30, 1874, Code Amdts. 1873-4, p. 438; April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 15.

§ 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.

Enacted February 14, 1872, substantial re-enactment of § 256 Criminal Practice Act 1851, Stats. 1851, p. 240; amendment approved March 30, 1874, Code Amdts. 1873-4, p. 439; April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 15.

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. Plea, §§ 1016-1025.

V. Transmission of Certain Indictments from the County Court to the District Court or Municipal Criminal Court of San Francisco, §§ 1028-1030. Removal of the Action before Trial, §§ 1033-1038.

VI.

VII. The Mode of Trial, §§ 1041-1043.

VIII. Formation of the Trial Jury, and the Calendar or Issues for Trial, §§ 1046-1049.

IX. Postponement of the Trial, §§ 1052, 1053.

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§ 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.

Enacted February 14, 1872, substantial re-enactment of § 258 Criminal Practice Act 1851, Stats. 1851, p. 240; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 15. As to forfeiture of bail or deposit, see post, §§ 1305-1307.

§ 977. DEFENDANT WHEN TO BE PRESENT AT ARRAIGNMENT. 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.

Enacted February 14, 1872, re-enactment of § 259 Criminal Practice Act 1851, Stats. 1851, p. 240; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 16. As to constitutional rights guaranteed to persons accused of crime, see Const. 1879, Art. I, 13.

When his

§ 978. IF IN CUSTODY, TO BE brought before COURT. personal appearance is necessary, if he is in custody, the court may direct and the officer in whose custody he is must bring him before it to be arraigned.

Enacted February 14, 1872, re-enactment of § 260 Criminal Practice Act 1851, Stats. 1851, p. 240.

§ 979. IF DISCHARGED ON BAIL, BENCH-WARRANT TO ISSUE. If the defendant has been discharged on bail, or has 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.

Enacted February 14, 1872, re-enactment of § 261 Criminal Practice Act 1851, Stats. 1851, p. 240.

§ 980. BENCH-WARRANT, BY WHOM AND HÓW ISSUED. The clerk, on the application of the district attorney, may, at any time after the order, whether the court is sitting or not, issue a bench-warrant to one or more counties.

Enacted February 14, 1872, re-enactment of § 262 Criminal Practice Act 1851, Stats. 1851, pp. 240, 241. As to issuance of bench-warrant on application of district attorney, see post § 1196.

day of

in the (designat

§ 981. FORM OF BENCH-WARRANT. The bench-warrant upon the indictment or information 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 (or information filed) on the A. D. eighteen [nineteen] superior court of the county of charging C D with the crime of ing it generally); you are, therefore, commanded forthwith to arrest the above-named C D, and bring him before that court (or if the indictment and information has been sent to another court, then before that court, naming it), to answer said indictment (or information), or if the court be not in session, that you deliver him into the custody of the sheriff of the county of

Given under my hand, with the seal of said court affixed, this

A. D.

By order of said court. [Seal]

day of

E. F. Clerk.

Enacted February 14, 1872, substantial re-enactment of § 263 Criminal Practice Act 1851, Stats. 1851, p. 241; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 16. As to form of bench-warrant, see post, §§ 982, 1197.

§ 982. DIRECTIONS IN THE BENCH-WARRANT IF THE OFFENSE IS BAILABLE. The defendant, when arrested under a warrant for an offense not bailable, must be held in custody by the sheriff of the county in which the indictment is found or information filed, unless admitted to bail after an examination upon a writ of habeas corpus; but if the offense is bailable, there must be added to the body of the bench-warrant a direction to the following effect: "Or, if he requires it, that you take him before any magistrate in that county, or in the county in which you arrest him, that he may give bail to answer to the indictment (or information)"; and the court, upon directing it to issue, must fix the amount of bail, and an indorsement must be made thereon and signed by the clerk, to the following effect: "The defendant is to be admitted to bail in the sum of dollars."

Enacted February 14, 1872, founded on §§ 264, 265, 266 Criminal Practice Act 1851, Stats. 1851, p. 241; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 16. As to form of bench-warrant, see ante, § 981; post, § 1197.

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