4702. Court to allow or disallow challenge. Entry. The court must allow or disallow the challenge, and the clerk must enter its decisions upon the minutes. [C. L. § 4902.

Cal. Pen. C. 2898.

4703. Allowance of challenge to panel. New grand jury. If a challenge to the panel is allowed, such grand jury shall be prohibited from inquiring into the charge against the defendant by whom the challenge shall have been interposed. If, notwithstanding, they do so, and find an indictment against him, the court must direct that it be set aside. The court may, however, in such case order a new grand jury to be summoned according to law. [C. L. § 4903*. grand jury, not deprived of objection to grand juror, 4772.

Cal. Pen. C. 899*.

Accused not held to answer before impaneling of

4704. Allowance of challenge to individual. Juror excused. If the challenge is allowed to an individual juror for the first cause, such person must be excused from the jury, and if there be not enough jurors left to complete the panel, the court must complete the same.

Mont. Pen. C. ? 1758*.

4705. Juror excused temporarily. If a challenge to an individual grand juror, for the second, third, or fourth causes is allowed, he must not be present at, nor take part in the consideration of the charge against the defendant who interposed the challenge, nor the deliberations of the grand jury thereon. The grand jury must inform the court of a violation of this section, and it shall be punishable by the court as a contempt. [C. L. § 4904*.

Cal. Pen. C. 900*.

A misdemeanor, 4150.

4706. Objection to jury or juror must be by challenge. The state, or a person whose case will come before a grand jury, may take advantage of any objection to the panel or to an individual grand juror in no other mode than by challenge. [C. L. § 4905*.

Cal. Pen. C. 901*.

4707. Court to appoint foreman of grand jury. From the persons summoned to serve as grand jurors and appearing, the court must appoint a foreman. The court must also appoint a foreman when the person already appointed shall have been excused or discharged before the grand jury is dismissed. [C. L. § 4906.

Cal. Pen. C. 902.

4708. Oath of foreman of grand jury. The following oath must be administered to the foreman of the grand jury: "You, as foreman of the grand jury, do solemnly swear that you will diligently inquire into and true presentment make of all public offenses against the laws of this state, committed or triable within this county, of which you shall have or can obtain legal evidence. You will keep your own counsel and that of your fellows and that of the state, and will not, except when required in the due course of judicial proceedings, disclose the testimony of any witness examined before you, nor anything which you or any other grand juror may have said, nor the manner in which you or any other grand juror may have voted on any matter before you. That you will present no person through malice, hatred, or ill will, nor leave any unpresented through fear, favor, or affection, or for any reward or the promise or hope thereof; but in all your presentments you will state the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding, so help you God." [C. L. § 4907*.

N. Dak. (1895) ? 8004*; Cal. Pen. C. 903*.

4709. Oath of grand jurors, other than foreman. The following oath must be immediately thereupon administered to the other grand jurors present: "The same oath which your foreman has now taken before you on his

part, you and each of you will well and truly observe on your part, so help you God." [C. L. § 4908.

Cal. Pen. C. 904.

4710. Charge to grand jury. The grand jury having been impaneled and sworn, must be charged by the court. In doing so, the court must give them such information as shall be required by law as to their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury. [C. L. § 4909.

Cal. Pen. C. 905*.

4711. Duties of grand jury. Clerk. Final discharge. The grand jury must then retire to a private room and inquire into the offenses cognizable by them. They must appoint one of their number as clerk, who must preserve minutes of the evidence given before them and of their proceedings except of the votes of the individual members. On the completion of the business before them, they must be discharged by the court; but whether the business is completed or not, they shall be discharged by the final adjournment of the [C. L. § 4910*.

court.

N. Dak. (1895) 22 8008, 8009*; Cal. Pen. C. 2 906*.

CHAPTER 20.

POWERS AND DUTIES OF GRAND JURY.

The

4712. To inquire into offenses, present indictments, etc. grand jury must inquire into all public offenses committed or triable within the county, and present them to the court by indictment, or by an accusation in writing. [C. L. § 4911*; '96, p. 108*.

Cal. Pen. C. 2 915*.

The fore

4713. Foreman to administer oaths to witnesses. man may administer an oath to any witness appearing before the grand jury. [C. L. § 4913.

Cal. Pen. C. ? 918.

4714. Evidence receivable by grand jury. In the investigation of a charge for the purpose of an indictment, the grand jury must receive no other evidence than such as shall be given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or the deposition of a witness in the cases mentioned in the fourth subdivision of section forty-five hundred and thirteen. The grand jury must receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence. [C. L. § 4914.

Cal. Pen. C. 919*.

4715. Not bound to hear evidence for defendant. Process. The grand jury shall not be bound to hear evidence for the defendant; but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be produced, and for that purpose may require the county attorney to issue process for the witnesses. [C. L. § 4915. Cal. Pen. C. 2920.

4716. When jury should find indictment. The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury. [C. L. § 4916.

Cal. Pen. C. 2921.

4717. Juror having knowledge of crime must declare it. If a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he must declare the same to his fellow jurors, who must thereupon investigate the same. [C. L. § 4917.

Cal. Pen. C. 922.

4718. What the grand jury must inquire into. The grand jury must inquire into the case of every person imprisoned in the jails of the county on a criminal charge and not indicted; into the conditions and management of the public prisons within the county; and into the wilful and corrupt misconduct in office of public officers of every description within the county. [C. L. § 4918.

Cal. Pen. C. 2923.

4719. Jury to have access to prisons and public records. They shall also be entitled to free access, at all reasonable times, to the public prisons, and to an examination without charge of all public records within the county. [C. L. § 4919*.

Cal. Pen. C. 924.

4720. Court and county attorney to advise jury. Exclusion of persons. The grand jury may at all reasonable times ask the advice of the court or the judge thereof, or of the county attorney, but, unless such advice is asked, the judge of the court must not be present during the sessions of the grand jury. The county attorney or attorneys for the state may at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable by them, and may interrogate witnesses before them whenever they or he shall think it necessary; but no other person shall be permitted to be present during the sessions of the grand jury except the members, interpreters, and witnesses actually under examination, and no person must be permitted to be present during the expression of their opinion or giving their votes upon any matter before them. [C. L. § 4920*.

Cal. Pen. C. 925*; Mont. Pen. C. 1788.

4721. Juror must maintain secrecy. Disclosure on order of court. Every member of the grand jury must keep secret whatever he himself or any other grand juror may have said, or in what manner he or any other grand juror may have voted on a matter before them; but may, however, be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court; or, to disclose the testimony given before them by any person upon a charge against such person for perjury in giving his testimony, or upon his trial therefor. [C. L. § 4921.

Cal. Pen. C. 926.

Disclosure by grand juror, penalty, ?? 4151, 4152,

4754.

The power herein granted to the court to require the grand juror to disclose testimony for the two purposes specified, does not deprive it of the power to require disclosure for any other purpose, and

that a grand juror may testify to a confession of defendant before the grand jury. U. S. v. Kirkwood, 5 U. 123; 13 P. 234.

Grand jurors may testify to admissions made before them by witness testifying to offense of another person. People v. Reggel, 8 U. 21; 28 P. 955.

4722. Grand juror cannot be questioned for vote, etc. Exception. A grand juror shall not be questioned for anything he may say, or any vote he may give in the grand jury relative to a matter legally pending before the jury, except for a perjury of which he may have been guilty, in making an accusation or giving testimony to his fellow jurors. [C. L. § 4922.

Cal. Pen. C. 927.

CHAPTER 21.

INDICTMENT.

4723. Five jurors must concur to find. Indorsing and signing. An indictment cannot be found without the concurrence of at least five grand jurors. When so found it must be indorsed "a true bill," and the indorsement must be signed by the foreman of the grand jury. [C. L. § 4923*.

Cal. Pen. C. 940*.

Form and sufficiency of indictment, ?? 4728-4755. Five must concur to find an indictment, Con. art. 1, sec. 13.

In the absence of a statutory requirement, an

indictment need not be signed by the U. S. district attorney, and, if signed by a deputy U. S. district attorney, the signing is surplusage. People v. Lyman, 2 U. 30.

Dismissal.

Resubmission.

4724. Failure to find indictment. If five grand jurors do not concur in finding an indictment against a defendant held to answer, the complaint, and depositions and statement, if any, that shall have been transmitted to them must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed. Such dismissal of the charge shall not prevent its resubmission to a grand jury at the next ensuing term, by order of the court, but it must not, after such ensuing term, be resubmitted. [C. L. § 4924*.

Cal. Pen. C. 22 941, 942*.

4725. Names of witnesses placed on indictment. When an indictment shall be found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, must be inserted at the foot of the indictment or indorsed thereon, before it is presented to the court. [C. L. § 4925.

Cal. Pen. C. 943.

Non-compliance with this section as to some witnesses does not render them incompetent, and is waived by pleading to the indictment. Defendant may take advantage of omission before plea by moving to set aside the indictment. People v. Thiede, 11 U. 241: 39 P. 837. Affirmed, Thiede v. People, 159 U. S. 510.

Prosecution need not call all witnesses named on the indictment. People v. Robinson, 6 U. 101; 31 P. 403.

The fact that witness was out of the territory and out of the jurisdiction of the court, was sufficient reason for not calling her. People v. Oliver, 4 U. 460; 11 P. 612.

4726. Indictment presented by foreman in open court. An indictment, when found by the grand jury, must be presented by their foreman in their presence to the court, and must be filed with the clerk. [C. L. § 4926.

Cal. Pen. C. 944.

An indictment will be presumed to have been presented to the court by the foreman of the grand

jury, and in their presence, if the record of the court shows nothing to the contrary. People v. Lee, 2 U. 441.

4727. Bench warrant for defendant not in custody. When an indictment shall have been found against a defendant not in custody, a bench warrant shall be issued against him in the same manner as is provided in chapter twenty-three of this title. [C. L. § 4927.

Cal. Pen. C. 945*.

CHAPTER 22.

RULES OF PLEADING AND FORMS OF INFORMATION ÅND INDICTMENT.

4728. Rules of pleading are those prescribed herein. All forms of pleading in criminal actions, and the rules by which the sufficiency of such pleadings is to be determined, shall be those prescribed by this code. [C. L. § 4928.

Cal. Pen. C. 948.

Statutes to be liberally construed, ?? 2489, 4052, 4742.

Rules for testing sufficiency of an indictment are those of code of criminal procedure, and not of the common law. People v. Kerm, 8 U. 268; 30 P. 988.

4729. Information or indictment is the first pleading. The first pleading on the part of the state shall be the information or the indictment. [C. L. § 4929*.

Cal. Pen. C. 2949.

4730. Id. What it must contain. The information or indictment must contain:

1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties.

2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. [C. L. § 4930*; '96, p. 98*.

Cal. Pen. C. 950.

Information, ?? 4692-4695. Indictment, ?? 47234727. Grounds for setting aside information, 24771; indictment, 4772.

Where an offense is so defined by statute that a

felonious intent constitutes no part of the crime, it is not necessary that the indictment should charge the act as having been done feloniously. People v. Colton, 2 U. 457.

4731. Id. Form. It may be substantially in the following form: The state of Utah against A B. In the district court of the for the county of the

day of

district, in and A. D., 18-. A Bis accused by the grand jury of the county of by this indictment (or, by the county attorney by this information) of the crime of (giving its legal appellation, such as murder, arson, or the like, or designating it as felony or misdemeanor), committed as follows: the said A B, on the —, A. D., 18—, at the county of (here set forth the act or omission charged as an offense) contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Utah. [C. L. § 4930*; '96, pp. 98, 99*.

Cal. Pen. C. ? 951*.

day of

4732. Id. Must be direct and certain in what. The information or indictment must be direct and certain as it regards:

1. The party charged.

2. The offense charged.

3. The particular circumstances of the offense, when they are necessary to constitute a complete offense. [C. L. § 4931*.

Cal. Pen. C. 952.

4733. Defendant charged by wrong name. Correction. When a defendant is charged by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, reference being made to the fact of his having been charged by the name mentioned in the information or indictment. [C. L. § 4932.

Cal. Pen. C. 2953.

Defendant to declare true name on arraignment, 2 4769.

4734. But one offense to be charged. Different counts permitted. The information or indictment must charge but one offense, but the same offense may be set forth in different forms under different counts; and when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count; provided, that an information or indictment for larceny may contain also a count for obtaining money by false pretenses, a count for embezzlement, and a count for receiving or buying stolen property knowing it to be stolen; that an information or indictment for forgery may contain a count for uttering a forged instrument, knowing it to be a forgery; that an information or indictment for robbery may contain a count for larceny; that an information or indictment for burglary may contain a count for housebreaking and one for larceny. [C. L. § 4933*; '92, p. 4*.

Cal. Pen. C. ? 954*.

Indictment charging several criminal acts, all, however, as a part of same transaction, and as constituting one crime, charges but one offense. People v. Hill, 3 U. 334; 3 P. 75.

A grand jury cannot divide a continuous offense into arbitrary parts, call each part a separate offense, and find separate indictments therefor. In re Lorenzo Snow, 120 U. S. 274. U. S. v. Snow, 4 U. 295; 9 P. 685, contra.