California Charles Howard Fairall.

Criminal law and procedure of California including the penal code of California online

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unexplained or uncontradicted would not warrant such a
conviction, they ought not to find an indictment.*** The
obligation to secrecy is not violated by a grand juror tes-
tifying as to what witnesses testified to before the jury;*^
nor by disclosing the names of witnesses examined before
it, which may be required on motion to set aside an indict-
ment.*^ But he cannot be required to disclose how he
voted upon the finding of the indictment.*^ A grand jury
is composed of nineteen men, but the concurrence of twelve

2 People V. Whelan, 117 Cal. 559.

3 People V. MiUs, 17 Cal. 276.

* People V. Roberts, 6 Cal. 214.

fi Ex parte Clarke, 54 Cal. 412; Kalloch v. Superior Court,

56 Cal. 286; Ex parte Moan, 65 Cal. 219.
« People V. Lee, 107 Cal. 477.

7 Ex parte Moan, 65 Cal. 216.

8 People V. King, 28 Cal. 273.
» People V. Page. 116 Cal. 392.

10 People V. Tinder, 19 Cal. 539.

11 People V. Northey, 77 Cal. 618; People v. Younr. U
Cal. 564.

12 Ex parte Schmidt, 71 Cal. 212.

13 Ex parte Sontag, 64 Cal. 525.

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in finding an indictment is sufficient." They are selected
in the same manner as petit jurors." The judge may
excuse any member of the grand jury without requiring
htm to appear and make excuses under oath in open
court." It is to exist until it is discharged by the court,
where it is not impaneled for a particular time.*^ The fact
that grand jurors were in court when another person was
on trial for the same offense and heard the defendant
plead his privilege as a witness, is not a disqualification, if
it had no effect upon them." Neither does an opinion as
to the guilt of the defendant, formed upon testimony taken
before them/" nor knowledge of the corpus delicti dis-
qualify.*** And where they are prejudiced against a par-
ticular defendant, the court may direct a special grand
jury to pass on that case.** Testimony of a grand juror
that he is a naturalized citizen is prima facie evidence of
citizenship.** Neither the disqualification of members of
the grand jury,*^ nor the irregularity of the impanelment
can be taken advantage of on motion to set aside the indict-
ment.** A grand jury may be summoned by a special order
of court after the defendant is in custody charged with
murder.** An additional grand jury may be summoned
where the regular venire is exhausted,*' and where a suffi-

1* People V. Hunter, 54 Cal. 65; People v. Gray, 61 Cal.
165; People v. Simmons, 119 Cal. 3; People v. Gate-
wood, 20 Cal. 147; People v. Butler. 8 Cal. 436; People
V. Roberts, 6 Cal. 214.

15 Peop'e V. Crowey, 56 Cal. 36.

le People V. Hidden, 32 Cal. 445; People v. Millsaps, 35
Cal. 48.

17 In re Gannon, 69 Cal. 541; People v. Leonard, 106 Cal.

18 People V. Northey, 77 Cal. 618.
i» People V. Northey, 77 Cal. 618.

20 People V. Breen, 130 Cal. 73.

21 People V. Manahan, 32 Cal. 68; People v. Southwell,
46 Cal. 153.

22 People V. Freeland, 6 Cal. 96; People v. Roberts. 6 Cal.

2» People V. Simmons, 119 Cal. 1.

2* People V. Goldenson, 76 Cal. 328; Bruner v. Superior

Court, 92 Cal. 26^.
2* People V. Cuintano, 15 Cal. 328; People v. Beatty, 14

Cal. 567; People v. Rodriguez, 10 Cal. 51; People v.

Moice. 15 Cal. 331.
'^0 People V. Leonard, 106 Cal. 302; People v. Sehorn. 116

Cal. 509.

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cient number of jurors fail to j^pear the court may sum-
mon a special grand jury.^^ A grand jury sum^noned by
an improper officer is invalid and an illegal body,'-^ and an
indictment found by them is invalid.^® The court may
appoint an elisor to summon the jury only where the
sheriff and coroner are both disqualified.*®


If the defendant is in custody, ^^ or has been held for
trial,®* or has had an opportunity to object before indict-
ment,'* he must make his challenge when the jury is impan-
eled, or his right is waived. But if he has not been so
held, or is not in custody when the jury is impaneled, he
must exercise his right to challenge on arraignment.'* A
challenge to a grand jury after its discharge cannot be
allowed; but if indicted and the jury has been discharged
before the defendant has had an opportunity to challenge,
he may have the indictment set aside upon any ground
which would have been good ground for challenge, either
to the panel or to individual jurors.*^ An irregularly
impaneled grand jury may properly find an indictment,**
but a body summoned as a petit jury cannot organize as
a grand jury.*^ The competency of a de facto grand jury

27 People V. M'Donnell, 47 CaL 134; Levy v. Wilson, 61>
Cal. 111.

28 Bruner v. Superior Court, 92 Cal. 239; People v. Leon-
ard, 106 Cal 319.

29 People v. Thurston, 5 Cal. 69; Levy v. Wilson, 69 Cal.

so Bruner v. Superior Court, 92 Cal. 239; People v. Fel-
lows, 122 Cal. 237.

81 People V. Henderson, 28 Cal. 466; People v. Gieger, 49
Cal. 643; People v. Travers, 88 Cal. 236.

32 People V. Arnold, 15 Cal. 476; People v. Oolmere, 2^
Cal. 632; People v. Henderson, 28 Cal. 466; People v.
Phelan, 123 Cal. 551.

«« People V. Hidden, 32 Cal. 446; People v. Stacey, 34
Cal. 308.

34 People V. Beatty, 14 Cal. 567; People v. Moice, 16 Cal.
331; People v. Arnold, 15 Cal. 479; People v. Colmere,
23 Cal. 632; People v. Travers, 88 Cal. 236; People T.
Turner, 39 Cal. 370.

85 People V. Travers, 88 Cal. 233.

86 People V. Southwell, 46 Cal. 145; People v. Gray. 61
Cal. 165.

87 People V. Earnest, 45 Cal. 29; In re Gannon, 69 CaL

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to act cannot be questioned by a witness in contempt for
refusing to answer questions asked him by such jury.'*
Where the challenge is sustained as to some of the jurors,
the remainder, if sufficient in number, is the jury.** A
challenge to the panel is restricted to three grounds, viz:
(i) That the requisite number of ballots was not drawn
from the jury box of the county; (2) That the notice
of the drawing was not given, and (3) That the draw-
ing was not had in the presence of the officers designated
by law.^ A challenge to an individual grand juror may
be interposed for one or more of the following causes
only: (i) That he is a minor; (2) That he is an alien;
(3) That he is insane; (4) That he is a prosecutor upon
a charge against the defendant; (5) That he is a witness on
the part of the prosecution, and has been served with
process or bound by undertaking as such, and (6) That
state of mind existing on his part, which is known in the
code as actual bias.**

«8 Bz parte Haymond, 91 Cal. 545.

M People V. Colby, 54 Cal. 37; People v. Gray, 61 Cal.

40 Penal Code 895; People v. Southwell, 46 Cal. 154;
Bruner v. Superior Court, 92 Cal. 253.

41 Penal Code 896.

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All the forms of pleading and the rules by which their
sufficiency is to be determined, are those prescribed, not
by the common law, but by the code.^


The first pleading on the part of the people is the indict-
ment or information.^ It must contain the title of the
action, specifying the name of the court to which the same
is presented, the names of the parties and a statement of
the acts constituting the offense, in ordinary and concise
language, without repetition, and in such manner as to
enable a person of common understanding to know what
is intended.*


The indictment or information must show the com-
mission of the crime within the jurisdiction of the trial
court.* It must show that the crime was committed in the
county and all of the facts necessary to establish venue;*
thus for an offense committed on a vessel on the inland
waters of the state, the indictment should set forth all the
facts, giving the extraterritorial jurisdiction, or evidence

1 Penal Code 948; People v. Dick, 37 Cal. 277; People v.
Lopez, 90 Cal. 569; People v. Cronln, 34 Cal. 191; Peo-
ple V. Ah Woo, 28 Cal. 206; People v. Murphy, 39 Cal.

i Penal Code 949.

8 Penal Code 950, 959.

* People V. Wong Wang, 92 Cal. 277; People v. Baker,
100 Cal. 188; People v. Craig, 59 Cal. 370.

A People V. O'Neil, 48 Cal. 257.

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thereof will not be admitted,* but when the crime is alleged
to have been committed on a car in a certain county the
jurisdiction is sufficiently shown and a conviction will be
sustained in the absence of evidence, regardless of the
fact that jurisdiction would be in any county through
which the car passed in the course of its tripJ And to
give the court jurisdiction of the crime of burglary, rob-
bery, larceny or embezzlement committed in another
county, it must be alleged that the property has been
brought into the county where the indictment is found.*
It is sufficient if the indictment lays the venue within the
jurisdiction of the court.®


A wrong designation of the offense in the indictment
or information is not material where the facts constituting
the offense are fully stated.^® Where the name given to
the crime is not in accordance with the facts charged, it is
a mere irregularity.^^ To designate the offense as a felony
in the indictment is sufficient description of the crime.^* It is
not necessary to designate it as a felony or misdemeanor,
when the facts and the name of the crime are alleged.*' But
in burglary, alleging that the defendant intended to commit
a felony, without stating the particular felony, is bad.^*
While the offense intended to be committed must be desig-
nated, it need not be designated other than by name." It

« Penal Code ,783; People v. Dougherty. 7 Cal. 396.

7 Penal Code 783; People v. Moore, 103 Cal. 510.

8 People V. Scott, 74 Cal. 94; People v. Jocklnsky, 106
Cal. 641.

People V. Lafuente, 6 Cal. 202.

10 People V. Fine, 77 Cal. 147; People v. Phlpps, 39 Cal.
326; People v. Cuddlhl, 54 Cal. 54; People v. Dalton,
58 Cal. 228; People v. Sheldon, 68 Cal. 436; People v.
Eppinger, 106 Cal. 36.

11 People V. Cuddlhl, 54 Cal. 53; People v. Phipps, 39 Cal.

12 People V. Beatty, 14 Cal. 566.

13 People V. War, 20 Cal. 117; People v. Dalton, 58 Cal.

!♦ People V. Nelson, 58 Cal. 104; People t. Smith, 86 CaL

15 People V. Burns, 63 Cal. 614.

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need not allege the facts constituting the crime, but only
allege it in general terms.*'


The purpose of alleging his name is to identify him and
there is no difference between a Christian and a surname in
this respect.'^ It is the accused person himself, and not
the accused person by any particular name, who is to be
presented by the indictment. If indicted under a wrong
name, the true name when discovered should be entered
on the minutes and the accused tried as if indicted there-
under.** Designating the defendant by a wrong name
is not ground to set aside the information.*' But where
there is a material variance between the name in the indict-
ment and the judgment of conviction, the judgment must
be reversed. ^^ It is otherwise if the variance is imma-
terial." A variance in the middle name is not material.**
The omission of "Ji"*"^' o*" of the middle name," is an
immaterial variance.*'


It is a general rule that an information or indictment
is sufficient if it describes the offense in the language of
the statute. But the rule is subject to the qualification,
fundamental in the law of criminal procedure, that the
accused must be apprised with reasonable certainty of the
nature of the accusation against him, to the end that he
may prepare his defense and plead the' judgment as a bar

16 People V. Go^dsworthy, 130 Cal. 600; People v. Nelson,
58 Cal. 107; People v. Burns, 63 Cal. 614; People y.
Smith, 86 Cal. 238.

17 People V. Kelly, 6 Cal. 210; People v. Dick, 37 Cal.

18 People V. Kelly, 6 Cal. 211; People v. Le Roy, 65 Cal.
613; People v. Jim Ti, 32 Cal. 60.

i» People V. Le Roy, 65 Cal. 613.

20 People V. Ah Cow, 17 Cal. 102.

21 People V. Boggs, 20 Cal. 432; People v. Ah Kim, 34 CaL

22 People V. Smith, 103 Cal. 663.

23 People t. Oliveria, 127 Cal. 376.

24 People V. Boggs, 20 Cal. 433.

26 People V. Ah Kim, 34 Cal. 181; People v. Hughes, 29
Cal. 262.

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to any subsequent prosecution for the same offense.^* And
this is true even where the statute creates a new offense.^**
The statute defines robbery to be the felonious taking of
the personal property in the possession of another, but
does not expressly provide, as in larceny, that it must
be the personal property of another, yet, the ownership
of the property in some person other than the accused must
be alleged in the indictment.^^ And the crime of attempt-
ing to suborn prejur\', not being a generic term of any
class of offenses, the information charging the offense in
those terms and alleging merely that the defendant
attempted to procure another person to swear falsely and
commit perjury in a specified suit, is not sufficient.** An
information charging that the defendant committed wilful
perjury, is a mere conclusion of law.** So in bribery the
specific facts constituting the statutory offense must be
stated. It is only a conclusion of law to say that the
defendant bribed another,*^ or that an act was done
fraudulently.*^ And in prosecution for. use of a shotgun of

26 People V. Tomlinson, 66 Cal. 344; People v. Johnson,
71 Cal. 391; People v. Mahlman, 82 Cal. 587; People
V. Martin, 32 Cal. 91; People v. Burke, 34 Cal. 663;
People V. Lewis, 61 Cal. 366; People v. Sheldon, 68
Cal. 436; People v. Giacemella, 71 Cal. 48; People v.
Russell, 81 Cal. 618; People v. Forney, 81 Cal. 118;
People V. Harrold, 84i Cal. 570; People v. King. 126 Cal.
369; People v. Colburn, 105 Cal. 648; People v. Patter-
son, 102 Cal. 239; People v. Kaiser, 119 Cal. 457; Peo-
ple V. McKenna, 81 Cal. 158; People v. Turner, 65 Cal.
540; People v. Frigerio, 107 Cal. 151; People v. Vallar-
ino, 66 Cal. 229; People v. Rogers, 61 Cal. 209; People
V. Keeley, 81 Cal. 212; People v. Markham, 64 Cal. 157;
People V. Edson, 68 Cal. 549; People v. Ward. 110 Cal.
373; People v. O'Brien, 96 Cal. 171; People v. Burke,
34 Cal. 661; People v. Rangod, 112 Cal. 672; People v.
Phipps, 39 Cal. 331; People v. White, 34 Cal. 183; Peo-
ple V. Girr. 53 Cal. 629; People v. Marseiler, 70 Cal.
98; People v. Shuler, 28 Cal. 490; People v. Hunt, 120
Cal. 281; People v. Dalton, 58 Cal. 228; People v. Am-
merman, 118 Cal. 26; People v. Savercool, 81 Cal. 651;
People V. Maguire, 26 Cal. 635.

2«» People V. Saviers, 14 Cal. 29.

27 People V. Ammerman, 118 Cal. 23.

28 People V. Thomas, 63 Cal. 482.

29 People V. Turner, 122 Cal. 679. *

80 People V. Ward, 110 Cal. 369.

81 People V. McKenna, 81 Cal. 158.

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larger calibre than a particular gauge, the purpose of its
use must be alleged, as it was the evident intention of the
legislature to prohibit the use of such guns only for tiie
purpose of killing game or other animals.'^ Neither does
the rule apply to cases where particular circumstances are
necessary to constitute the complete offense,'^ as they must
be alleged.** But where the indictment substantially fol-
lows the statute and puts the defendant upon fair notice
of the offense charged, of the time, place and circum-
stances of its commission, it is sufficient.^^ The defendant
is entitled to be apprised with reasonable certainty of the
nature and particulars of the crime.*' Malicious mischief
in the use of poisonous substances, charged in the language
of the statute, need not allege the name thereof, nor that
it would kill, nor that the act was done feloniously." The
word "feloniously" need not be used in an indictment
or information when the facts constituting the offense are
charged.'* If the ultimate facts be alleged in the language
of the statute the probative facts such as intent with which
the assault is made, present ability, etc., need not be
alleged.** But where the facts stated do not constitute
an offense, the court has no jurisdiction to pronounce a
valid sentence and the conviction is void.*** Such defects
are not cured by verdict.*^ It is essential to an indict-
ment that there be a statement of the acts constituting the
offense and the particular circumstances thereof, in
ordinary and concise language, and in such a manner as
to enable a person of common understanding to know what

32 Ex parte Peterson, 119 Cal. 578.

33 People V. Ward, 110 Cal. 369.
8* People V. Nell, 91 Cal. 465.

35 People V. Dal ton, 58 Cal. 228; People v. Garcia, 25 Cal.
531; People v. Thompson, 4 Cal. 239; People v. Burke,
34 Cal. 662; People v. English, 30 Cal. 216.

36 People V. Lee, 107 Cal. 477; People v. Ward, 110 Cal.

37 People V. Keeley. 81 Cal. 210.

38 People V. Parsons, 6 Cal. 487; People v. Oliverla, 7 Cal.

89 People .V. Savercool, 81 Cal. 650.

40 Ex parte Kearney, 55 Cal. 212.

41 People V. Wallace, 9 Cal. 32; People v. Cox, 9 Cal. 33;
People V. Coleman, 10 Cal. 334.

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is intended.** The allegation must be direct and certain
as to the party charged, the offense and the particular cir-
cumstances, when they are necessary to constitute a awn-
plete offense,** but where it states the substantial facts
with sufficient certainty to enable the defendant to answer
the charge, it is sufficient.** Surplusage does not vitiate.**
Technical defects not effecting the substantial rights of the
accused are not material.** Defects of form, not tending
to prejudice the substantial rights, must be disregarded.*^
Mere clerical errors will not affect the verdict.** A failure
to demur waives all defect, except want of jurisdiction and
a failure to state facts sufficient to constitujfe an offense.**
Ambiguities and uncertainties, in the absehc^^ special
demurrer, do not render the information bad afSf'S^on-
viction.*® The omission to allege that the crime '^^^^
contrary to the form of the statute is not fatal, as th^7V\
objection does not go to the jurisdiction, nor the failure 'V

to state a public offense.*^ And the omission of the
name of the county in the title, when it appears in the
body of the information,** or of the word "information"
from the body, if in the heading, is not material.**


Time is only necessary to show that the offense was

42 People V. Savlers, 14 Cal. 29; People v. Garcia, 26 Cal.
633; People v. Myers, 20 Cal. 74; People v. Shaber, 82
Cal. 38; People v. Nelson, 58 Cal. 106; People v. Rodri-
guez, 10 Cal. 51; People v. Hood. 6 Cal. 236; People v.
De La Guerra, 31 Cal. 416.

48 People V. Saviers, 14 Cal. 29.

44 People V. Rozelle, 78 CaL 84; People v. Ah Sing. 95
Cal. 656.

46 People V. Perez, 87 Cal. 122.

46 People V. Hitchcock, 104 Cal. 482.

47 People V. Ah Sing, 96 Cal. 664; People v. Ferris. 56
Cal. 442; People v. Rozelle, 78 Cal. 90; People v. Smith,

• 103 Cal. 567; People v. O'Brien, 64 Cal. 53; People v.
Dick. 37 Cal. 277.

48 People V. Monteith, 73 Cal. 7.

4» People V. Burgess, 35 Cal. 115; People v. Villarino, 66
Cal. 230; People v. Gatewood, 20 Cal 147; People v.
Apple, 7 Cal. 290.

w People V. Nesbitt. 102 Cal. 327.

81 People V. Taylor, 119 Cal. 113.

52 People V. Biggins, 65 C^l. 564.

68 People V. Baker, 100 Cal. 188.


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l>efore the finding of the indictment, and in murder that it
was within a year and a day before the death." The
crime must be alleged to have been committed at "a time
before the filing of the information,®' and within bar of
statute of limitations.'^' It is sufficient if it appears that the
•offense was committed at a time prior to the finding of
the indictment,'^ but when the accused is convicted of man-
slaughter, under an indictment for murder, the time
becomes material and the indictment should specify the
time within the statute of limitations." Except where
time is of the essence, a crime alleged to have been com-
mitted on a day certain, may be shown to have been com-
mitted subsequently, if prior to the filing of the informa-
tion.'*^ It is not necessary to show the date of the offense
prior to the filing, if it can be understood that the offense
was so committed.'® And a mistake in the date which is
merely clerical is immaterial.'^


Where a description forms a part of the false pretenses,
it must be set out exactly as made,'* but there need be no
certainty of description where no prejudice is the result ••
The question is not, can a more certain description be
given, but does the indictment contain a suflScient des-
cription.'* An allegation of what is legally essential to
the offense charged can never be rejected as surplusage.**
Description of property in general terms is sufficient after

54 People V. K«lly, 6 Cal. 210.

65 People V. Cuff. 122 Cal. 589; People v. Rice, 73 Cal. 220.

5« People V. Dinsmore, 102 Cal. 381.

5T People v. Llttlefleld. 5 Cal. 355.

58 People V. Miller. 12 Cal. 291.

69 People V. Sheldon, 68 Cal. 434; People v. Lafuente, 6

Cal. 202.
«o People V. Squires, 99 Cal. 327.
«i People V. Dinsmore, 102 Cal. 381; People v. Cui. 122

Cal. 594.
62 People V. Nesbitt, 102 Cal. 327.
«3 People V. Littlefield, 5 Cal. 355; People v. Ah Woo. 28

Cal. 211.
«♦ People V. Ah Woo, 28 Cal. 207.
«5 People V. Myers, 20 Cal. 76.

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from whose possession it was taken. ''^ "^^/v



judgment.*® The description of money need not be spec-
ified, nor proof as to coin, number, denomination or kind.
Money may be alleged as lawful money of the United
States.*^ Description of the property need not in any
event give the details.®^ Ownership is sufficiently stated
as being in a certain company without specifying its
character,®' and a partnership may be alleged as certain
persons described as partners.^" Ownership may be
charged as in an estate of a deceased person.^^ But a des-
cription of a deadly weapon must charge the facts which
show the weapon was deadly,^^ that the court may deter-
mine therefrom the character of the weapon."'" In robbery
the property mav be described as bQjfcnging to the person


Only one offense can be charged in the same irtfli^-
ment,'' but where the code enumerates a series of acrelj^
either of which separately or together constitute the offense
they may be charged in a single count.''® Thus in forgery

«« People V. Chuey Ylng Git, 100 Cal. 437.

«7 People V. Cobler, 108 Cal. 538; People v. Righetti, 66

Cal. 184; People t. Poggl, 19 Cal. 600; People v. Green,

15 Cal. 512; People v. Millan, 106 Cal. 320; People y.

Winkler. 9 Cal. 284.
«» People V. Stanford, 64 Cil. 27.
«» People V. Henry, 77 Cal. 445; People v. Goggins, 80 Cal.

231; People v. McDonnell, 80 Cal. 288; People v. Rogers,

81 Cal. 210.

70 People V. Ribolsl, 89 Cal. 492.

71 People V. Smith, 112 Cal. 333; People v. Prather, 120
Cal. 662.

72 People V. .Tacobs, 29 Cal. 579; People v. Congleton, 44
Cal. 94: People v. Villarino, 66 Cal. 229: People v.
Pape, 66 Cal. 367.

73 People V. Pape, 66 Cal. 366.

74 People V. Hicks, 66 Cal. 103; People v. Hnnselman, 76
Cal. 461; People v. Ammerman, 118 Cal. 26.

76 People V. Ouvise, 56 Cal. 396.

76 People V. Frank, 28 Cal. 507; People v. Gosset, 93 Cal.
643; People v. Leyshon, 108 Cal. 442; People v. Mitchell,
92 Cal. 590; People v. Thompson, 111 Cal. 252: People
V. De La Guerra, 31 Cal. 461; People v. Tomlinson, 36
Cal. 508; Ex parte McCarthy, 72 Cal. 386;, People v. Har-
. fold, 84 Cal. 568; People v. Gustl, 113 Cal. 177; People
V. Eagan, 116 Cal. 290; People v. Ellen wood, 119 Cal.

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the charging of raising a check and making endorsements
to defraud the same person, is one offense," as likewise
the forgery, endorsement and uttering^® The selling of
liquor to Indians is one offense, although several acts
going to make up the offense are alleged.^** Upon a charge
of rape of female under age of consent, proof may be made
of any of the other acts mentioned in the code,*^ but lar-
ceny and receiving stolen goods constitute two oflFenses
and cannot be charged in the same indictment,*^ and the
charging of the murder of three persons, charges three
offenses;** but a defendant may be charged as principal

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 24 of 77)