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

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vided in this chapter.

Right to counsel on arraignment.

987. If the defendant appears for arraignment without coun-
sel, he must be Informed by the court that it is his right to have
counsel before being arraigned, and must be asked if ne desires
the aid of counsel. If he desires and is unable to employ coun-
sel, the court must assign counsel to defend him.

55 Cal. 298: 66 Cal. 229; 102 Cal. 231.

Arraignment, how made.

988. The arraignment must be made by the court, or by ths
clerk or district attorney under its direction, and consists in
reading the indictment or information to the defendant and
delivering to him a copy thereof, and of the indorsements there-
on, including the list of witnesses, and asking him whethar he
pleads guilty or not guilty to the indictment or information,
[Amendment approved April 9, 1880; Amendment 1880, p. 16.
In effect April 9, 1880.]

65 Cal. 296; 66 Cal. 229; 71 Cal. 387; 78 Cal.
445; 76 Cal. 347: 104 Cal. 377.



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663 SETTING ASIDE THE INDICTMENT. 989-996

Proceedings on arraignment, when defendant is not indicted by
his true name.

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
proceedings 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. [Amendment approved April 9,
1880; Amendments 1880, p. 17. In effect April 9, 1880.]

6S Col. 329; IW Cal. 280.

Time allowed, and how defendant may answer on arraignment.

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 ar-
raignment, move to set aside, demur, or plead to the indict-
ment or information. [Amendment approved April 9, 1880 ;
Amendments 1880, p. 17. In effect April 9, 1880.]

90 Cal. 200.

CHAPTER II.
SETTING ASIDE THE INDICTMENT.

Sec. 995. Indictment, when set aside on motion.

996. Defendant waives objections, unless be makes tbe motion.

997. Motion, wben heard. If denied or granted, what proceed-

ing are to be had.

998. Effect of order for submission.

999. Order no bar to another prosecution.

Indictment, when set aside on motion.

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 pre-
scribed in this code.

2. When 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 in-
dorsed 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 nine hundred and twenty-five.

4. When the defendant had not been held to answer before
the finding of the indictment, on any ground which would have
been good ground for challenge, either to the panel or to any
individual grand juror.

If it be on information:

1. That before the filing thereof the defendant had not been
legally committed by a magistrate.

2. That it was not subscribed by the district attorney of the



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996-999 PENAL CODE. 664

county. [Amendment approved April 26, 1880; Amendments
1880, p. 43. In effect April 26. 1880.]

4d Cal. 651; 54 Cal. 38: 54 Cal. 899; R6 Cal. 38;
59 Cal. 365; 64 Cal. 261; 64 Cal. 382; 64 Cal.
528; 65 Cal. 218; 65 Cal 614; 68 Cal. 503; 69
Cal. 547; 69 Cal. 602; 71 Cal. 212; 76 Cal. 344;
82 Cal. 621: 83 Cal. 558; 88 Cal. 86; 88 Cal. 235;
90 Cal. 200; 91 Cal. 642; 115 Cal. 60; 117 Cal.
560; 119 Cal. 2; 119 Cal. 825; 122 Cal. 39; 130
Cal. 74; 132 Cal. 200.

Defendant waives objections, unless he makes the motion.

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. [Amendment ap-
proved April 9, 1880; Amendments 1880, p. 17. In effect April
9, 1880.]

48 Cal. 5M); 82 Cal. 621; SO Cal. 200.

Motion, when heard. If granted or denied, what proceedings
are to be had.

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 pieading
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 de-
posited 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 dis-
trict attorney; provided, that after such order of resubmission
the defendant may be examined before a magistrate, and dis-
charged or committed by him, as in other cases, if before indict-
ment or information filed he has not been examined and com-
mitted by a magistrate. [Amendment approved April 9, 1880;
Amendments 1880, p. 17. In effect April 9, 1880.]

88 Cal. 85: 101 Cal. 515; 127 Cal. 64; 130 Cal. 74.

Effect of order for submission.

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 ball, or money has been deposited Instead thereof, the ball
or money is answerable for the appearance of the defendant to
answer a new indictment or information; and, unless a new In-
dictment is found or information filed before the next grand
jury of the county is discharged, the court must, on the dis-
charge of such grand jury, make the order prescribed by the pre-
ceding section. [Amendment approved April 9, 1880; Amend-
ments 1880, p. 17. In effect April 9, 1880.]

Order no bar to another prosecution.

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. [Amendment approved April 9, 1880; Amena-
ments 1880. p. 18. In effect April 9, 1880.1

123 Cal. 45o: 1:7 Cal. 64; ICO Cal. 75.



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666 DEMURRER. 1002-1007

CHAPTER III.
DEMURRER.

Sec. 1002. Pleading on part of defendant.

1003. Demurrer or plea, when put In.

1004. Grounds of demurrer.

1005. Demurrer, how put In, and Its form.

1006. When heard.

1007. Judgment on demurrer.

1008. If allowed, bar to another prosecution, when.

1009. If resubmission not ordered, defendant discharged, etc.
1(»10. Proceedings, If submission ordered.

1011. Proceedings, If demurrer Is disallowed.

1012. Objection, forming ground of demurrer, when taken.

Pleading on part of defendant.

1002. The only pleading on the part of the defendant Is
either a demurrer or a plea.

Denfiurrer or plea, when put in.

1003. Both the demurrer and 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.

Grounds of demurrer.

1004. The defendant may demur to the indictment or infor-
mation 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 requirement
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.

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

5. That it contains any matter, which, if true, would con-
stitute a legal justification or excuse of the offense charged,
or other legal bar to the prosecution. [Amendment approved
April 9, 1880; Amendments 1880, p. 18. In effect April 9, 1880.]

47 Cal. 108; 47 Cal. 113; 48 Cal. 252; 48 Cal.
559; 49 Cal. 390; 56 Cal. 535; 58 Cal. 225; 64
Cal. 158; 64 Cal. 201: 68 Cal. 504; 71 Cal. 389;
77 Cal. 34; S2 Cal. 620; 85 Cal. 89; 103 Cal. 428;
108 Cal. 677: 106 Cal. 640; 107 Cal. ASi): 119 Cal.
168; 120 Cal. 661; 131 Cal. 2:;W; 133 Cal. 624.

Demurrer, how put in, and its form.

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. [Amendment approved April 9, 1880;
Amendments 1880, p. 18. In effect April 9, 1880.]

When heard.

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.

Judgment or. demurrer.

1007. Upon considering the demurrer, the court must give
Judgment, either allowing or disallowing it, and an order to
that effect must be entpred upon the minutes.

65 Cal. 5«r: to Cal. 645; 121 CaI. 494.



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1008-1012 PENAL CODE. 666

If allowed, bar to another prosecution, when.

1008. If the demurrer is allowed, the judgment is final upon
the indictment or information demurred to, and Is a bar to an-
other prosecution for the same ofTense, unless the court, being
of the opinion that the objection on which the demurrer \a
allowed may be avoided in a new indictment or information,
directs the case to be submitted to another grand Jury, or directs
a new information to be filed; provided, that after such order
of resubmission the defendant may be examined before a magis-
trate, and discharged or committed by him, as in other cases.
[Amendment approved April 9, 1880; Amendment 1880, p. 18,
In effect April 9, 1880.]

63 Cal. 219; 77 Cal. 84; 107 Cal. 478; 116 Cal.
613; 117 Cal. 560; 118 Cal. 27; 1312 Cal. 39.

If resubmission not ordered, defendant discharged, etc

1009. If the court does not permit the information to 0-3
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 in-
stead of bail, the money must be refunded to him. [Amendment
approved April 9, 1880; Amendments 1880, p. 18. In effect
April 9, 1880.1

116 Cal. 614.

Proceedings, if submission ordered.

1010. If the court directs that the case be resubmitted, the
same proceedings must be had thereon as are prescribed in sec-
tions 997 ancl 998.

Proceedings, if demurrer is disallowed.

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 h^ does not plead
Judgment may be pronounced against him.

68 Cal. ISl; 102 Cal. 232.

Objection, fornrHng ground of demurrer, when taken.

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 indict-
ment or information, or that the facts stated do not constitute
a public offense, may be taken at the trial, unvier the pl'^a of
not guilty, or after the trial, in arrest of Judgment. [Amend-
ment approved April 9, 1880; Amendments 1880, p 19. In effect
April 9, 1880.1

47 Cal. !<.«: 58 Cal. 225; f4 Cal. 158; 66 Cal.
230; 6S Cal. 504; 71 Cal. 3S9; 90 Cal. 199; 100
Cal. 439; 103 Cal. 428; 103 Cal. 566; 103 Cal. 677;

119 Cal. 16S: 127 Cal. S49; 131 Cal. 230; 133 Cal.

624.



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667 DEMURRBB— PLBA. 1016-1019

CHAPTER IV.
PLBA.

Sec. 1016. The different kinds of pleas.

1017. Plea, how put In, and Its form.

1018. Plea of gnllty, how put In, and when withdrawn.

1019. What plea of not guilty puts In Issue.

1020. What may be given In evidence under plea of not guilty.

1021. What Is not a former acquittal.

1022. What Is a former acquittal.

1023. Conviction or acquittal for a higher offense, effect of.

1024. Defendant refusing to answer, plea of not guilty.

The different kind of pleas.

1016. There are four kinds of pleas to an indictment or in-
formation. A plea of:

1. Guilty.

2. Not guilty.

3. A former judgment of conviction or acquittal of the offense
charged, which may be pleaded either with or without the plea
of not guilty.

4. Once in jeopardy. [Amendment Approveu April 26, 1880;
Amendments 1880, p. 44. In effect April 26. 1880.J

48 Cal. 329; 49 Cal. 396; 60 Cal. 86.

Plea, how put in, and its form.

1017. Every plea must be oral, and entered upon the minutes
of the court in substantially the following form:

1. If the defendant plead guilty: "The defendant pleads that
be is guilty of the offense charged."

2. If he plead not guilty: "The defendant pleads that he is
not guilty of the offense charged."

3. If he plead a former conviction or acquittal: "The defend-
ant pleads that he has already been convicted [or acquitted]

of the offense charged by the judgment of the court of

[naming it], rendered at [naming the place], on the —

day of ."

4. If he plead once in jeopardy: "The defendant pleads that
he has been once in jeopardy for the offense charged [specifying
the time, place, and court]." [Amendment approved April 26,
1880; amendments 1880, p. 44. In effect April 26, 1880.]

47 cal. 124: 49 Cal. 396; 62 Cal. 480: 60 Cal.
298: 64 Cal. 403; 73 Cal. 446; 77 Cal. 88; 101
Cal. 282.

Plea of guilty, how put in, and when withdrawn.

1018. A plea of guilty can be put in by thp defendant him-
self only in open court, unless upon Indictment or information
against a corporation, in which case it may be put in by coun-
sel. The court may at any time before judgment, upon a plea
of guilty, permit it to be withdrawn and a plea of not guilty
substituted. [Amendment approved April 9, 1880; amendments
1880, p. 19. In effect April 9, 1880.]

82 Cal. 618; 114 Cal. 16.

What plea of not guilty puts in issue.

1019. The plea of not guilty puts in issue every material
allegation of the indictment or information. [Amendment ap-
proved April 9, 1880; amendments 1880, p. 19. In effect April
9, 1880.]

60 /Cal. 86; 88 Cal. 117.



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1020-1029 PENAL CODE. 668

What may be given in evidence under plea of not guilty.

1020. All matters of fact tending to establish a defense, other
than that specified in the third and fourth subdivisions of sec-
tion one thousand and sixteen, may be given in evidence under
the plea of not guilty. [Amendment approved April 26, 1880;
amendments 1880, p. 44. In effect April 26, 1880.]

48 Cal. S29; €0 Cal. 86; 114 Cal. 69.

What is not a former acquittal.

1021. If the defendant was formerly acquitted on the ground
of variance between the indictment or information and the
proof, or the indictment or information was dismissed upon an
objection to its form or substance, or in order to hold the
defendant for a higher offense, without a judgment of acquittal,
it is not an acquittal of the same offense. [Amendment approved
April 9, 1880; amendments 1880, p. 19. In effect April 9, 1880. J

70 Cal. 65; 79 Cal. 179; 132 Cal. 500; ISS Cal. 129.
What is a former acquittal.

1022. Whenever the defendant is acquitted on the merits, he
is acquitted of the same offense, notwithstanding any defect in
form or substance in the indictment or information on which
the trial was had. [Amendment approved April 9, 1880; amend-
ments 1880, p. 19. In effect April 9, 1880.]

Conviction or acquittal for a higher offense* effect of.

1023. When the defendant is convicted or acquitted, or has
been once placed in jeopardy upon an indictment or information,
the conviction, acquittal, or jeopardy is a bar to another indict-
ment or information for the offense charged in the former, or for
an attempt to commit the same, or for an offense necessarily
included therein, of which he might have been convicted under
that indictment or information. [Amendment approved April
26, 1880; amendments 1880, p. 45. In effect April 26, 1880.]

99 Cal. 231; 132 Cal. 500; 133 Cal. 129.

Defendant refusing to answer, plea of not guilty.

1024. If the defendant refuses to answer the indictment or
information by demurrer or plea, a plea of not guilty must be
entered. [Amendment approved April 9, 1880; amendments 1880,
p. 19. In effect April 9, 1880.]

71 Cal. 396.

CHAPTER V.
TRANSMISSION OF CERTAIN INDICTMENTS FROM THE
COUNTY COURT TO THE DISTRICT COURT, OR MUNI-
CIPAL CRIMINAL COURT OF SAN FRANCISCO.

Sec. 1029. Indictment against a superior judge.

Indictment against a superior Judge.

1029. When an indictment is found or an information filed
in a Superior Court against a judge thereof, a certificate of that
fact must be transmitted by the clerk to the governor, who shall
thereupon designate and direct a judge of the Superior Court
of another county to preside at the trial of such indictment or
information, and hear and determine all pleas and motloxis
affecting the defendant thereunder before and after judgment.
[Amendment approved March 12, 1880; amendments 1880, p. 6.
In effect March 12, 1880.]

81 Cal. 569.



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669 PLEA — REMOVAL OF ACTION. 1033-1 0S7

CHAPTER VI.
REMOVAL OF THE ACTION BEFORa^ TRIAL,

Sec. 1033. When action may be removed.

1034. Application for removal, how made.

1035. Application, when granted.

1036. Order of removal.

1037. Proceedings on removal, if defendant is in custody.

1038. Proceedings on removal. Transmission of papers.

When action may be removed.

1033. A criminal action may be removed from tne court in
which It Is pending:

First — On the application of the defendant, on the ground
that a fair and impartial trial cannot be had in the county
where the action is pending.

Second — On the application of the district attorney, on the
ground that from any cause no jury can be obtained for the
trial of the defendant in the county where the action Is pend-
ing. [Amendment approved March 9, 1887; stats. 1887, p. 61-
In effect March 9, 1887.]

66 Cal. 828: 65 CSil. 147; 80 Cal. 298; 87 Cal. 860;
132 Cal. 682.

Application for removal, how made.

1034. The application must be made in open court and in
writing, verified by the affidavit of the defendant or of the dis-
trict attorney, as the case may be, a copy of which application
must be served upon the attorney of the adverse party at least
one day prior to the hearing of the application. Whenever the
affidavit of the defendant shows that he cannot safely appear in
person to make such application because popular prejudice is
so great as to endanger his personal safety, and such statement
is sustained by other testimony, such application may be made
by his attorney, and shall be heard and determined in the
absence of the defendant, notwithstanding the charge then
pending against him be a felony, and he has not at the time
of such application been arrested or given bail, or been arraigned,
or pleaded, or demurred to the indictment or information.

• [Stats. 1887, p. 62. In effect March 9, 1887.]

56 Cal. 830; 65 Cal. 147.

Application, when granted.

1036. ,If the court be satisfied that the representations of
the applicant are true, an order must be made transferring
the action to the proper court of some convenient county free
from a like objection. [Amendment approved March 9, 1887;
Btats. 1887, p. 62. In effect March 9, 1887.]

66 Cal. 147: SO Cal. 298.

Order of removal.

1036. The order of removal must be entered upon the min-
utes, and the clerk must immediately make out and transmit
to the court to which the action is removed a certified copy
of the order of removal record, pleadings, and proceedings in
the action, including the undertakings for the appearance of the
defendant and of the witnesses.

71 Cal, 605.

Proceedings on removal, if defendant is in custody.

1037. If the defendant is in custody, the order must direct
his removal, and he must be forthwith removed by the sheriff



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1038-1043 PENAL CODE. 670

of the county where he is Imprisoned, to the custody of the
sheriff of the county to which the action is removed.

Proceedings on removal. Transmission of papers.

1038. The court to which the action is removed must proceed
to trial and Judgment therein as if the action had been com-
menced in such court. If it is necessary to have any of the
original pleadings or other papers before such court, the court
from which the action is removed must at any time^ upon
application of the district attorney or the defendant, order such
papers or pleadings to be transmitted by the clerk, a certified
copy thereof being retained.



CHAPTER VII.
THE MODE OF TRIAL.

Sec. 1041. Issue of fact defined.

1042. How tried.

1043. When presence of defendant Is necessary on the trial.

issue of fact defined.

1041. An issue of fact arises:

1. Upon a plea of not guilty.

2. Upon a plea of a former conviction or acquittal of the
same offense.

3. Upon a plea of once in jeopardy. [Amendment approved
April 26, 1880; amendments 1880, p. 45. In effect April 26,
1880.]

How tried.

1042. Issues of fact must be tried by Jury, unless a trial by
Jury be waived in criminal cases not amounting to felony, by
the consent of both parties expressed In open court and entered
in its minutes. In cases of misdemeanor the Jury may consist
of twelve, or any number less than twelve upon which the par-
ties may agree in open court [Amendment approved February
25, 1880; amendments 1880, p. 5. In effect February 25, 1880.]

92 Cal. 675.

When presence of defendant is necessary on the trial.

1043. If the prosecution be for a felony, the defendant must
be personally present at the trial; but if for misdeameanor, the
trial may be had in the absence of the defendant; if, however,
his presence is necessary for the purpose of identification, the
court may, upon application of the district attorney, by an
order or warrant, require the personal attendance of the
defendant at the trial. [Amendment approved April 9, 1880;
amendments 1880, p. 19. In effect April 9. 1880.]

57 Cal. 361; 59 Cal. 358; « Cal. 634; 118 Cal.
448.



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671 TRIAL JURY — POSTPONEMENT. 1046-1052

CHAPTER VIII.

FORMATION OF THE TRIAL JURY AND THE CALENDAR OF

ISSUES FOR TRIAL.

Sec. 1046. Formation of triftl Jnrv.

1047. Clerk to prepare a calendar.

1048. Order of disposing of issues on the calendar.

1049. Defendant entitled to two days to prepare for trialj

Formation of trial jury.

1046. Trial juries for criminal actions are formed in the
same manner as trial Juries in civil actions.

Z 119 Cal. 622.

Clerk to prepare a calendar.

1047. The clerk must keep a calendar of all criminal actions
pending in the court, enumerating them according to the date
of the filing of the indictment or information, specifying opposite
the title of each action whether it is for a felony or a mis-
demeanor, and whether the defendant is in custody or on bail.
[Amendment approved April 9, 1880; amendments 1880, p. 20.
In effect April 9, 1880.]

106 Cal. 512.
Order of disposing of issues on the calendar.

1048. The issues on the calendar must be disposed of In the
following order, .unless for good cause the court shall direct an
action to be tried out of its order:

1. Prosecutions for felony, when the defendant is in custody.

2. Prosecutions for misdemeanor, when the defendant is in
custody.

3. Prosecutions for felony, when the defendant is on bail.

4. Prosecutions for misdemeanor, when the defendant Is on
bail. [Amendment approved April 9, 1880; amendments 1880, p.
20. In effect April 9, 1880.]

Defendant entitled to two days to prepare for trial.

1049. After his plea, the defendant is entitled to at least two
days to prepare for trial.

CHAPTER IX.

POSTPONEMENT OF THE TRIAL.

Sec. 1052. Postponement, when, and how ordered.

Postponement, when and how ordered.

1052. When an action is called for trial, or at any time
previous thereto, the court may, upon sufficient cause, direct



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