34 Cal., p. 211. The allegation of premeditation or malice aforethought is necessary.-People vs. Urias, 12 Cal., p. 325. It is not, however, essential that the words "with malice aforethought" be used, provided terms of equivalent import are used. The words" willfully, maliciously, feloniously, and premeditatedly” are equivalent.-People vs. Vance, 21 Cal., p. 400; People vs. Ybarra, 17 Cal., p. 166. The absence of the word "deliberate" where the crime is alleged to have been committed "with malice aforethought" is immaterial.-People vs. Dolaro, 9 Cal., p. 576; People vs. Murray, 10 Cal., p. 309. The allegation of "express malice" is not necessary in an indictment, and if made need not be proved in order to justify a verdict of murder in the first degree. The proper allegation is of “malice aforethought."-People vs. Bonilla, 38 Cal.,

959.

ARSON. --An indictment for arson, which charges that the de-
fendant, at a time named, was in the county where it is found, and
then and there feloniously burned a building, sufficiently shows that
the offense was committed at a place within the jurisdiction of the
Court. People v. Wooley, 44 Cal. 494.

ASSAULT WITH DEADLY WEAPON. --An indictment for an assault with a
deadly weapon, with intent to do bodily injury to another, may in gen-
eral terms aver the assault to have been made "with a deadly weapon."
People v. Congleton, 44 Cal. 93. The weapon by name, does not in
such case, become a necessary ingredient of the crime, but the nature
www.paming fously, burglariously, and with
of the weapon, as being deadly or otherwise, is alone important; and it
is essential to aver it in some appropriate way, to have been deadly in
koop node tanindictment for burglary, an allegation that the
haracter.

Id.

dariter fregit.

Indict

ment not
insufficient

for defect of
form not
tending to
prejudice
defendant.

Y.-See Sec. 966 of this Code. An indictrging the offense in the words of the statute, ficient in People vs. Parsons, 6 Cal., p. 487. -An indictment, charging that the defendant awfully and feloniously have carnal knowlcertain female child named A., she, the said ; under ten years of age, to wit, of the age of rs and upwards," is valid.-People vs. Mills, p. 276. It is not necessary to aver the age of in charged with committing the rape.-People Tek, 29 Cal., p. 575.

VING STOLEN GOODS.-People vs. Hawkins,

p. 181.

ERY. An indictment is not invalid because it that the property was forcibly and violently rom one person and against his will, and that person was the owner of it, though it fails to at it was taken without the consent or against il of the owner, and also fails to aver the charof the possession of the person from whom it was -People vs. Shuler, 28 Cal., p. 490. An indictwhich merely states that the property was taken "another person," is fatally defective; it must that it was taken from "the person of another." ›le vs. Beck, 21 Cal., p. 385. An indictment must se that the property taken was the property of e person other than the defendant.-People vs. Vice, 21 Cal., p. 344.

960. (§ 247.) No indictment is insufficient, nor

can the trial, judgment, or other proceeding thereon

be affected by reason of any defect or imperfection in perfection matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits. NOTE.-People ys. Dick, 37 Cal., p. 277.

961. (§ 248.) Neither presumptions of law nor matters of which judicial notice is taken, need be stated in an indictment.

ments, etc.,

pleaded.

962. (§ 249.) In pleading a judgment or other Judg determination of, or proceeding before, a Court or offi- how cer 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.

statutes,

how

pleaded.

963. ($ 250.) In pleading a private statute, or a Private 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.

Pleading in

indictment

964. (§ 251.) An indictment for libel need not set forth any extrinsic facts for the purpose of showing for libel. the application to the party libeled of the defamatory matter on which the indictment 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.

Fleading in for forgery, strument

indictment

where in

965. (§ 252.) When an instrument which is the subject of an indictment 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 and established on the defendant. trial, the misdescription of the instrument is immaterial.

966. (§ 253.) In an indictment for perjury, or subornation of perjury, it is sufficient to set forth the

destroyed or withheld by

Pleading in substance of the controversy or matter in respect to

an indict

ment for

perjury or subornation of perjury.

which the offense was committed, and in what Court and before whom the oatly alleged to be false was taken, and that the Court, or the erson 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 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.

967. In an indictment for the larceny or embezzlement of money, banknotes, certificates of stock, or valuable securities, or for a conspiracy to cheat and 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, banknotes, certificates of stock, or valuable securities, without specifying the coin, number, denomination, or kind thereof.

Pleading in an indictment for selling,

ez

or

eny

res

the

NOTE.-Founded upon Stats. 7 and 8 Geo. IV, Chap. 29, Sec. 48. Speaking of the rule as it now exists, Justice Wallace, in People vs. Cox, October Term, 1870, says: "An indictment for the crime of embez zlement ought to state the description of the property embezzled, with the same particularity as is required in an indictment for larceny. For obvious reasons, it may be difficult to give such a description of property embezzled, particularly where the offense is committed by a person in the course of a continuous employment, as clerk, cashier, or the like; but I find nothing in the law authorizing us to make any distinction upon this point between the offenses of larceny and embezzlement. It would, perhaps, promote the ends of justice if a statute should be passed to correct the law in this particular." The same reasons apply to an indictment for larceny. See, also, note to Sec. 959.

968. An indictment for exhibiting publishing, passing, selling, or offering to sell, or having in posexhibiting, session, with such intent, any fewd or obscene book,

etc..

and obscene

books, etc.

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.

969. In charging in an indictment the fact of a preious conviction of a felony, or of an attempt to commit in offense which, if perpetrated, would have been

my, or of petit larceny, it is sufficient to state. That

he defendant, before the of the offense

harged in this indictment, was in [giving the title of
he Court in which the conviction was had] convicted
of a felony [or attempt, et or of petit larceny]."
f more than one
evious conviction be charged in the
adictment, the date of the judgment upon each convic-
ion shall be stated, and not more than two previous
onvictions shall be charged in any one indictment.

Previous conviction of another offense, how stated in indictment.

Indict

970. (§ 254.) .Upon an indictment against several ment defendants, any one or more may be onvicted or acquitted.

971. The distinction between an accessory before he fact and a principal, and between principals in the rst and second degree, in cases of felony, is abrogated, nd all persons concerned in the commission of a felny, whether they directly commit the act constituting he offense, or aid and abet in its commission, though ot present, shall hereafter be indicted, tried, and punshed as principals, and no additional facts need be lleged in any indictment against such an accessory han are required in an indictment against his prinipal.

ay

same indictment.-People vs. Davidson, 5 Car., p.
An
133; People vs. Valencia, April Term, 1872.
indictment, charging a felony and setting forth that
the defendant was an accessory before the fact, is good
under our statute.-People vs. Cryder, 6 Cal., p. 23.
The acts of the defendant should be set forth in the
indictment.-People vs. Schwartz, 32 Cal., p. 160.

972. An accessory to the commission of a felony
be indicted, tried and punished, though the prin-
pal may be neither indicted nor tried, and though the
incipal may have been acquitted.

NOTE.-People vs. Newberry, 20 Cal. p. 439. The
accessory must be indicted, tried, and punished as a

against several, one or more may be acquitted.

Distinction between accessory before the fact and principal abrogated.

Principals, how indicted, etc.

principal, but the particular acts, which established that he aided and abetted the crime, and thus became a principal, must be alleged in the indictment.-People vs. Campbell, 40 Cal., p. 129; see, also, People vs. Trim, 39 Cal., p. 75.

TITLE VI.

OF PLEADINGS AND PROCEEDINGS AFTER INDICT-
MENT AND BEFORE THE COMMENCEMENT OF THE
TRIAL.

CHAPTER I. Of the arraignment of the defendant.
II. Setting aside the indictment.

III. Demurrer.

IV. Plea.

V. Transmission of certain indictments from the County Court to the Dis

trict Court or Municipal Criminal
Court of San Francisco.

VI. Removal of the action before trial.
VII. The mode of trial.

VIII. Formation of the trial jury and the
calendar of issues for trial.

IX. Postponement of the trial.

CHAPTER I.

OF THE ARRAIGNMENT OF THE DEFENDANT.

SECTION 976. Defendant must be arraigned in the Court where the indictment was found or sent.

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 bail

able.. Order for bail to be indorsed.

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