Where bigamy and adultery are committed on the same day, with the same person, the two offenses may be charged in separate counts in the same indictment. U. S. v. West, 7 U. 437; 27 P. 84. An indictment charging bigamy in one count and adultery in another is good at common law, since the prosecutor might elect or the court could compel him to elect which count he should proceed under. Id. See citations under 4210. 4735. Conviction may be had on any count. The defendant or defendants, or any of them, may be convicted of any offense charged in any of the counts joined as prescribed in the preceding section; provided, that no person shall be convicted of more than one crime upon the same facts constituting such crime. ['92, p. 4. 4736. Conviction or acquittal of one or more defendants. Upon an information or indictment against several defendants, any one or more may be convicted or acquitted. [C. L. § 4947*. Cal. Pen. C. 970. 4737. Precise time need not be alleged or proved. Exception. The precise time at which the offense shall have been committed need not be stated in the information or indictment, but it may be alleged to have been committed at any time before the filing thereof, if an information; or, if an indictment, before the finding thereof, except where the time is a material ingredient in the offense. [C. L. § 4934*. Cal. Pen. C. 2 955*. Where an indictment alleges that property was stolen on the fourth day of the month, and there is evidence that it was stolen on the third day, it is proper to charge that the exact time of the offense is not material; and defendant cannot claim that this is, in effect, a direction to disregard his proof of an alibi on the third day of the month. People v. Wright, 11 U. 41; 39 P. 477. 4738. Erroneous allegation as to person injured not material, when. When an offense shall involve the commission of, or an attempt to commit, a private injury and shall have been described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, shall not be material. [C. L. § 4935. Cal. Pen. C. 956. Attempts to commit crimes, ?? 4177-4181, 4495, 4496. 4739. Construction of words in information or indictment. The words used in an information or indictment shall be construed in their usual acceptance in common language, except such words and phrases as shall be defined by law, which are to be construed according to their legal meaning. § 4936*. Cal. Pen. C. 2957. [C. L. Words Terms and construction, ?? 2498, 4053. 4740. Id. Statutory words need not be strictly pursued. used in a statute to define a public offense need not be strictly pursued in the information or indictment, but other words conveying the same meaning may be used. [C. L. § 4937*. Cal. Pen. C. ? 958. It is not necessary that the precise words of the statute should be used in an indictment. People v. Colton, 2 U. 457. Indictment framed in the language of the statute, charging embezzlement of property intrusted to defendant " as bailee" without setting forth the facts and circumstances of bailment, is sufficient. People v. Hill, 3 U. 334; 3 P. 75. In an indictment for a statutory offense, it is sufficient to describe the same in the language of the statute. People v. Gough, 2 U. 70. People v. Hill, 3 U. 334; 3 P. 75. In an indictment for a misdemeanor it is sufficient to charge the offense in the words of the statute, unless they fail to cover every element of the offense charged. Cannon v. U. S., 116 U. S. 55. Same case, 4 U. 122; 7 P. 369. 4741. When information or indictment sufficient. The information or indictment is sufficient if it can be understood therefrom: 1. That it is entitled in a court having authority to receive it though the name of the court be not stated. 2. If an information, that it was subscribed and presented by a person authorized by law so to do; or, if an indictment, that it was found by a grand jury of the county in which the court was held. 3. That the defendant is named, or, if his name cannot be discovered, that he is described by a fictitious name, with a statement that his true name is to the informant, or, as the case may be, to the grand jury, unknown. 4. That the offense committed was within the jurisdiction of the court and is triable therein. 5. That the offense was committed at some time prior to the time of the presenting of the information or the finding of the indictment. 6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended, and the court to pronounce judgment upon a conviction, according to the right of the case. [C. L. § 4938*. Cal. Pen. C. ? 959*. Grounds for setting aside information, ? 4771; indictment, 2 4772. The indictment alleged that the crime was committed "in the county of Weber in this territory and district;" held, that the naming of the county was surplusage and that it was sufficient if the offense had been committed anywhere in the district. U. S. v. Kershaw, 5 U. 618; 19 P. 194. The indictment is sufficient if it can be understood therefrom that the act or omission charged as the offense is clearly and distinctly set forth, without repetition, and in such manner as to enable the court to understand what is intended and to pronounce judgment according to the right of the cause. People v. Kerm, 8 U. 268; 30 P. 988. 4742. Non-prejudicial errors of form disregarded. No information or indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of a defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon the merits. Cal. Pen. C. 2 960; N. Dak. ? 8048. Similar section, civil procedure, 3008. Statutes to be liberally construed, ?? 2489, 4052, 5080. 4743. Presumptions of law, etc., need not be stated. Neither presumptions of law nor matters of which judicial notice is taken, need be stated in an information or an indictment. [C. L. § 4939*. Cal. Pen. C. 961. 4744. In pleading judgment, facts not alleged. Proof. In pleading a judgment or other determination of, or proceeding before, a court or officer of special jurisdiction, it shall not be 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. [C. L. § 4940. Cal. Pen. C. 962. 4745. Private statute pleaded by reference to title and date. In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to the statute by its title and the day of its passage, and the court must thereupon take judicial notice thereof. [C. L. § 4941. Cal. Pen. C. 963. 4746. Criminal libel, how pleaded. Proof. An information or indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter on which the information or indictment is founded; but it shall be sufficient to state generally that the same was published concerning him, and the fact that it shall have been so published must be established on the trial. [C. L. § 4942*. Cal. Pen. C. 7 964. Criminal libel, general provisions, 22 4196-4207. Applied, People v. Ritchie, 12 U. 180; 42 P. 209. 4747. Pleading forgery when instrument destroyed, etc. Misdescription. When an instrument which is the subject of an information or 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 shall have been alleged in the information or indictment and established on the trial, the misdescription of the instrument shall be immaterial. [C. L. § 4943*. 4748. Perjury pleaded. Proof necessary. In an information or indictment for perjury or subornation of perjury, it shall be sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court or before whom the oath alleged to be false was taken, and that the court, or the person 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 information or 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. Perjury must be proved by the testimony of two witnesses, or, one witness and corroborating circumstances. [C. L. § 4944*. Cal. Pen. C. 966*. Indictment for perjury set out and held sufficient hereunder. People v. Greenwell, 5 U. 112; 13 P, 89. 4749. Larceny or embezzlement. Sufficient allegations. In an information or indictment for the larceny or embezzlement of money, bank notes, certificates of stock, or valuable securities, or for a conspiracy to cheat or defraud a person of any such property, it shall be sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock, or valuable securities, without specifying the coin, number, denomination, or kind thereof. [C. L. § 4945*. Larceny of securities, etc., ?? 4363-4365. Cal. Pen. C. 2 967. 4750. Obscene literature, etc. Sufficient allegations. An information or indictment for exhibiting, publishing, passing, selling, or offering to sell, or having in possession with such intent, any lewd or obscene book, 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. [C. L. § 4946*. Cal. Pen. C. 968. Obscene literature, ?? 4247. 4751. Principal and accessory. Certain distinctions abrogated. The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any information or indictment against such an accessory than are required in an information or indictment against his principal. [C. L. § 4948*. Cal. Pen. C. 971. Jurisdiction of prosecutions against principal and Principals and accessories defined, ?? 4074, 4075. accessory, 22 4586, 4587. 4752. Accessory punished though principal not. An accessory to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted. [C. L. § 4949*. Cal. Pen. C. 972. Punishment of accessory, 2 4076. 4753. Indictment or information to be recorded. Certified copy. Every indictment or information must be recorded by the clerk within five days after the same is filed, in a book to be kept for that purpose. The judge must compare the record with the original indictment or information and certify the correctness thereof. In case the original indictment or information is lost or destroyed, the defendant may be tried upon a copy taken from the record and certified by the clerk. Mont. Pen. C. 2 1855. 4754. Officials not to disclose indictment, etc., until arrest. No grand juror, county attorney, clerk, judge, or other officer must disclose the fact that an indictment is found or an information filed until the defendant has been arrested, except any disclosure that may be necessarily incident to the issue and service of a warrant to arrest the defendant. A violation of this section may be punished as a misdemeanor by fine or imprisonment, or both. Mont. Pen. C. 2 1856. Disclosure by grand juror, ?? 4151, 4721. 4755. Joint ownership of personal property, how pleaded. When any offense is committed upon, or in relation to, any personal property belonging to several partners or owners, the indictment or information for such offense is sufficient, if it allege such property to belong to any one or more of such partners or owners, without naming them all. Mont. Pen. C. 2 1858. CHAPTER 23. ARRAIGNMENT OF DEFENDANT. 4756. When and where defendant arraigned. When the information or indictment shall have been filed, the defendant must be arraigned thereon before the court in which it shall be filed, unless the cause is transferred to some other county for trial. [C. L. § 4950*. Cal. Pen. C. ? 976. Rights of accused persons, Con. art. 1, secs. 7-12; ? 4513. 4757. Presence of defendant at arraignment, when necessary. If the information or indictment is for a felony, the defendant must be personally present; but if for a misdemeanor, he may appear upon the arraignment by counsel. [C. L. § 4951. Cal. Pen. C. 977. Presence of defendant at trial, § 4811. 4758. Defendant in custody brought in. When his personal appearance shall be necessary, if he is in custody, the court may direct that he be brought, and the officer in whose custody he shall be must thereupon bring him before it to be arraigned. [C. L. § 4952. Cal. Pen. C. 978. 4759. Id. Bench warrant for defendant on bail. If the defendant shall have been discharged on bail, or shall have deposited money instead thereof, and does not appear to be arraigned when his personal attendance shall be necessary, the court, in addition to the forfeiture of the undertaking of bail, or of the money deposited, may direct the clerk to issue a bench warrant for his arrest. [C. L. § 4953. Cal. Pen. C. 979. 4760. Id. Issuance of bench warrant. The clerk, on the application of the prosecuting attorney, may, at any time after the order shall have been made, whether the court is sitting or not, issue a bench warrant to one or more counties. [C. L. § 4954. Cal. Pen. C. ? 980. 4761. Form of bench warrant, if offense a felony. The bench warrant upon the information or indictment, if the offense is a felony, must be substantially in the following form: STATE OF UTAH, COUNTY OF The state of Utah to any sheriff, constable, marshal, or policeman in this state: An information having been filed (or an indictment having been found), on the day of A. D. 18, in the district court of thecounty, of, charging C D with the crime of (designating it generally); you are therefore commanded forthwith to arrest the above named C D, and bring him before that court (or before the court to which the information or indictment may have been removed, naming it), to answer said information or indictment; or if the court has adjourned for the term, that you deliver him into the custody of the sheriff of the county of Given under my hand, with the seal of said court affixed, this day of [SEAL.] [C. L. § 4955*. Cal. Pen. C. ? 981*. 4762. Arrest under bench warrant. Bail. Bail. The defendant, when arrested under a warrant for an offense not bailable, must be held in custody by the sheriff of the county in which the information is filed or the indictment is found, unless admitted to bail after an examination upon a writ of habeas corpus; but if the offense is bailable, there must be added to the body of the bench warrant a direction to the following effect: "Or, if he requires it, that you take him before any magistrate in that county, or in the county in which you arrest him, that he may give bail to answer to the information or indictment"; and the court, upon directing it to issue, must fix the amount of bail, and an indorsement must be made thereon and signed by the clerk, to the following effect: "The defendant is to be admitted to bail in the sum of - dollars." [C. L. § 4956*. Cal. Pen. C. 982. 4763. Bench warrant served as a warrant of arrest. The bench warrant may be served in any county in the same manner as a warrant of arrest. [C. L. § 4957*. 4764. Bail after arrest on bench warrant. If the defendant is brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings must be had thereon. [C. L. § 4958*. Cal. Pen. C. 984. Bail generally, ?? 4983-5010. 4765. Bail may be increased. Imprisonment until given. When the information or indictment is for a felony, and the defendant before the filing or finding thereof, shall have given bail for his appearance to answer the charge, the court to which the information or indictment shall be presented may order the defendant to be committed to actual custody, unless he gives bail in an increased amount, to be specified in the order. [C. L. § 4959*. Cal. Pen. C. ? 985*. 4766. Id. Bench warrant for absent defendant. If the defendant is present when the order is made, he must be forthwith committed. If he is not present, a bench warrant must be issued and proceeded upon in the manner provided in this chapter. [C. L. § 4960. Cal. Pen. C. 986. 4767. On arraignment, defendant entitled to counsel. Appointment. If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him. [C. L. § 4961. Cal. Pen. C. 2987. Rights of accused persons, Con. art. 1, secs. 7-13; 2 4513. 4768. Id. Information or indictment to be read. Plea. The arraignment must be made by the court, or by the clerk or county attorney under its direction, and shall consist in reading the information or indictment to the defendant and delivering to him a copy thereof, including the list of witnesses, and asking him whether he pleads guilty or not guilty to the information or indictment. [C. L. § 4962*. Cal. Pen. C. 988*. |