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If he be not present, a bench warrant shall be issued and proceeded upon in the manner provided in this chapter.

§ 338. If the defendant appear for arraignment, without counsel, he shall be informed by the court, that it is his right to have counsel before being arraigned, and shall be asked if he desire the aid of counsel.

§ 339. The arraignment must be made by the court, or by the clerk or district attorney, under its direction, and consists in reading the indictment to the defendant, and delivering to him a copy thereof, and of the endorsements thereon, including the list of witnesses endorsed on it, or appended thereto, as provided in sectio : 300, and in asking him whether he plead guilty or not guilty to the indictment.

$ 340. When the defendant is arraigned, he shall be informed that if the name by which he is indicted be not his true name, he must then declare his true name, or be proceeded against by the name in the indictment.

§ 341. If he give no other name, the court may proceed accordingly.

$ 342. If he allege that another name is his true name, the court shall direct an entry thereof in the minutes of the arraignment; and the subsequent proceedings on the indictment may be had against him, by that name, referring also to the name by which he is indicted.

$ 343. If, on the arraignment, the defendant require it, he shall be allowed until the next day, or such further time may be allowed him, as the court may deem reasonable, to answer the indictment.

$ 344. If the defendant do not require time, as provided in the last section, or if he do, then on the next day, or at such further day as the court may have allowed him, he may in answer to the arraignment, either move the court to set aside the indictment, or may demur or lead thereto.

CHAPTER IV.

Setting aside the indictment.

345. The indictment shall be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases:

1. Where it is not found, endorsed and presented, as prescribed in sections 297 and 301.

2. Where the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, are not inserted at the foot of the indictment, or endorsed thereon, as prescribed in section 300.

3. Where any person is permitted to be present during the session of the grand jury, while the charge embraced in the indictment, is under consideration, except as provided in section 279.

§ 346. If the motion to set aside the indictment be not made, the defndant shall be precluded from afterwards taking the objections mentioned in the last section.

§ 347. The motion shall be heard when it is made, unless, for good cause, the court shall postpone the hearing to another time.

§ 348. If the motion be denied, the defendant must immediately answer the indictment, either by demurring or pleading thereto.

§ 349. If the motion be granted, the court shall order that the defendant, if in custody, be discharged therefrom, or if admitted to bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money deposited be refunded to him; unless it direct that the case be re-submitted to the same or another grand jury

$ 350. If the ourt direct that the case be re-submitted, the defendant, if already in custody, shall so remain unless he be admitted to bail; or if already admitted to bail, or money have been deposited instead thereof, the bail or money shall be answerable for the appearance of the defendant to answer a new indictment.

$ 351. Unless a new indictment be found, before the next grand jury of the county is discharged, the court shall, on the discharge of such grand jury, make the order prescribed by section 319.

§ 352. An order to set aside an indictment, as provi ded in this chaper, shall be no bar to a future prosecution for the same offence.

CHAPTER V.

Demurrer.

$ 353. The only pleading on the part of the defendant, is either a demurrer or a plea.

$ 354. Both the demurrer and the plea must be put in in open court, either at the time of the arraignment, or at such other time as may be allowed to the defendant for that purpose.

$ 355. The defendant may demur to the indictment, when it shall appear upon the face thereof, either,

1. That the grand jury, by which it was found, had no legal authority to inquire into the offence charged, by reason of its not being within the local jurisdiction of the county.

2. That it does not substantially conform to the requirements of sections 304 and 305.

3. That more than one offence has been charged in the indictment.

4. That the facts stated do not constitute a public offence.

5. That the indictment contains any matter, which, if true, would constitute a legal justification or .excuse of the offence charged, or other legal bar to the prosecution.

§ 356. 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 it shall be disregarded.

$ 357. Upon the demurrer being filed, the objections presented thereby shall be heard, either immediately or at such time as the court may appoint.

§ 358. Upon considering the demurrer, the court shall give judgment, either allowing or disallowing it; and an order to that effe 't shall be entered in the min

utes.

$ 359. If the demurrer be allowed, the judgment shall be final upon th indictment demurred to, and shall be a bar to another prosecution for the same offence, unless the court, being of opinion that the objec ion on which the demurrer is allowed may be avoided in a new indictment, direct the case to be resubmitted to the same or another grand jury.

§ 360. If the court do not direct the case to be resubmitted, the defendant, if in custody, shall be discharged, or if admitted to bail, his bail shall be exonerated, or if he have deposited money instead of bail, the money shall be refunded to him.

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