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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 day of
E. F. Clerk. 982. 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.” 1880-16. 983. The bench-warrant may be served in any county, in the same manner as a warrant of arrest, except that when served in another county it need not be indorsed by the magistrate of that county.
984. If the defendant is brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings must be had thereon.
985. When the information or indictment is for a felony, and the defendant, before the filing thereof, has given bail for his appearance to answer the charge, the court to which the indictment or information is presented, or in which it is pending, may order the defendant to be committed to actual custody, unless he gives bail in an increased amount, to be specified in the order. 1880–16.
986. If the defendant is present when the order is made, he must be forthwith committed. If he is not present, a bench-warrant must be issued and proceeded upon in the manner provided in this chapter.
987. If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court. must assign counsel to defend him.
988. The arraignment must be made by the court, or by the clerk or district attorney under its direction, and consists in reading the indictment or information to the defendant and delivering to him a true copy thereof, and of the indorsements thereon, including the list of witnesses, and asking him whether he pleads guilty or not guilty to the indictment or information. 1911—435.
989. When the defendant is arraigned, he must be informed that if the name by which he is prosecuted is not his true name, he must then declare his true name, or be proceeded against by the name in the indictment or information. If he gives no other name, the court may proceed accordingly; but if he alleges that another name is his true name, the court must direct an entry thereof in the minutes of the arraignment, and the subsequent procedings on the information or indictment may be had against him by that name, referring also to the name by which he was first charged therein. 1880—17.
990. If, on the arraignment, the defendant requires it, he must: be allowed a reasonable time, not less than one day, to answer the indictment or information. He may, in answer to the arraignment, move to set aside, demur, or plead to the indictment or information. 1880—17.
Setting Aside the Indictment. 995. Indictment, defects.
998. Effect order submission. 996. Objections, when waived. 999. No bar another prosecu997. Motion. Proceedings.
tion. 995. The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases:
If it be an indictment
1. Where it is not found, indorsed, and presented as prescribed in this code.
2. When it appears by the testimony of the foreman or secretary of the grand jury that the names of the witnesses examined before the grand jury, or whose despositions may hav
been read before them, are not inserted at the foot of the indictment, or indorsed thereon
3. When a person is permitted to be present during the session of the grand jury, and when the charge embraced in the indictment is under consideration, except as provided in section 925.
If it be on information:
1. That before the filing thereof the defendant had not been legally committed by a magistrate.
2. That is was not subscribed by the district attorney of the county, or city and county. 1911-435.
996. If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in the last section. 1880—17.
997. The motion must be heard at the time it is made, unless for cause the court postpones the hearing to another time. If the motion is denied, the defendant must immediately answer the indictment or information, either by demurring or pleading thereto. If the motion is granted, the court must order that the defendant, if in custody, be discharged therefrom; or, if admitted to bail, that his bail be exonerated; or, if he has deposited money instead of bail, that the same be refunded to him, unless it directs that the case be resubmitted to the same or another grand jury, or that an information be filed by the district attorney; provided, that after such order of resubmission the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases, if before indictment or information filed he has not been examined and committed by a magistrate. 1880—17.
998. If the court directs the case to be resubmitted, or an information to be filed, the defendant, if already in custody, must so remain, unless he is admitted to bail; or, if already admitted to bail, or money has been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment or information; and, unless a new indictment is found or information filed before the next grand jury of the county is discharged, the court must, on the discharge of such grand jury, make the order prescribed by the preceding section. 1880-17.
999. An order to set aside an indictment or information, as provided in this chapter, is no bar to a future prosecution for the same offense. 1880-18.
Demurrer. 1002. Pleading part of defend- 1008. Judgment, when bar. ant.
1009. Not resubmitted, defend1003. Demurrer or plea, when.
ant discharged. 1004. Ground of demurrer. 1010. Proceedings,
demurrer 1005. Demurrer, how put in,
1011. Demurrer over-ruled. 1006. When heard.
1012. Demurrer when objec. 1007. Judgment on demurrer.
1002. The only pleading on the part of the defendant is either a demurrer or a plea.
1003. Both the demurrer and plea must be put in, in open court, either at the time of arraignment or at such other time as may be allowed to the defendant for that purpose.
1004. The defendant may demur to the indictment or information, when it appears upon the face thereof either:
1. If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county; or, if an information, that the court has no jurisdiction of the offense charged therein;
2. That it does not substantially conform to the requirements of sections nine hundred and fifty, nine hundred and fifty-one, and nine hundred and fifty-two;
3. That more than one offense is charged, except as provided in section nine hundred and fifty-four;
4. That the facts stated do not constitute a public offense;
5. That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution. 1905-772.
1005. The demurrer must be in writing, signed either by the defendant or his counsel, and filed It must distinctly specify the grounds of objection to the indictment or information, or it must be disregarded. 1880—18.
1006. Upon the demurrer being filed, the argument upon the objections presented thereby must be heard, either immediately or at such time as the court may appoint.
1007. Upon considering the demurrer, the court must give judgment, either allowing or disallowing it, and an order to that effect must be entered upon the minutes.
1008. An indictment or information may be amended by the district attorney without leave of court, at any time before the defendant pleads. Such amendment may be made at any time thereafter, in the discretion of the court where it can be done without prejudice to the substantial rights of the defendant. An indictment cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. If a demurrer is sustained and an amendment is not allowed, or if allowed, is not made, within such reasonable time as the court may fix, the court shall give a judgment of dismissal, which shall be a bar to another prosecution for the same offense. The defendant shall thereupon be discharged, unless the court directs the case to be submitted to the same or another grand jury, or directs a new information to be filed; provided, that after such order or resubmission, the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases. 1911—436.
1009. If the court does not permit the information to be amended, nor direct that an information be filed, or that the case be resubmitted, as provided in the preceding section, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he has deposited money instead of bail, the money must be refunded to him. 1880—18.
1010. If the court directs that the case be resubmitted, the same proceedings must be had thereon as are prescribed in sections nine hundred ninety-seven and nine hundred ninety-eight.
1011. If the demurrer is disallowed, the court must permit the defendant, at his election, to plead, which he must do forthwith, or at such time as the court may direct. If he does not plead judgment may be pronounced against him.
1012. When the objections mentioned in section one thousand and four appear on the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, or after the trial, in arrest of judgment. 1880–19.
Plea. 1016. Different kinds of pleas. 1021. What is not former ac1017. Pleas, how put in: form.
quittal. 1018. Plea of guilty, when may 1022. What former acquittal. be withdrawn.
1023. Conviction or acquittal, 1019. Plea of not guilty, issue.
higher offense, effect of. 1020. Evidence, under plea not 1024. Refusing to plead, not guilty.