4769. Defendant to declare his true name. 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 information or indictment. 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 is informed against or indicted. [C. L. § 4963*.

Cal. Pen. C. 989*.

Defendant charged in wrong name, correction, & 4733.

4770. Time to answer allowed. Motion to set aside. Demurrer. Plea. If, on the arraignment, the defendant requires it, he must be allowed a reasonable time, not less than one day, to answer the information or indictment. He may, in answer to the arraignment, move to set aside, demur, or plead to the information or indictment. [C. L. § 4964*.

Cal. Pen. C. 990.

4771.

CHAPTER 24.

SETTING ASIDE INFORMATION OR INDICTMENT.

When information must be set aside. The information must be set aside by the court in which the defendant is arraigned, upon his motion, in any of the following cases:

1. When it fails to recite that the defendant had theretofore been duly committed by a magistrate.

2.

When the names of the witnesses testifying on the part of the state, in such examination, are not indorsed thereon.

3. When it is not signed by the county attorney or his deputy or by the attorney pro tem for the state.

['96,

p. 98*.

Cal. Pen. C. ? 995*.
Information, rules of pleading, form, etc., ?? 4692–

4695, 4728-4755. Granting or refusing of motion deemed excepted to, 4944.

4772. When indictment must be set aside. The indictment must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases:

1. Where it is not found, indorsed, and presented as prescribed 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 indorsed thereon.

3.

When a person has been permitted to be present during the session of the grand jury while the charge embraced in the indictment has been under consideration, except as provided in section forty-seven hundred and twenty.

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

Cal. Pen. C. 2 995*.

Indictment, rules of pleading, form, etc., 2247234755. Granting or refusing of motion deemed excepted to, 4944.

[C. L. § 4965.

Fact that indictment was found solely on testimony of incompetent witness is no ground for setting aside. Ū. S. v. Cutler, 5 U. 608; 19 P. 145.

4773. Form of motion to set as de. When to be made. The motion to set aside the information or indictment must be in writing subscribed by the defendant or his attorney, and must specify clearly the ground of objection to

the information or indictment, and such motion must be made before the defendant demurs or pleads, or the objection is waived.

Mont Pen. C. 1911; N. Dak. (1895) 8083.

4774. Hearing on motion to set aside. Procedure. 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 information or indictment, either by demurring or pleading 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 deposited money instead of bail, that the same be refunded to him, unless it directs that an information be filed by the county attorney, or that the case be resubmitted to the same or to another grand jury. [C. L. § 4967*.

Cal. Pen. C. 997*.

4775. Id. When new information or resubmission ordered. If the court directs that an information be filed, or that the case be resubmitted, the defendant, if already in custody, must so remain unless he shall be admitted to bail; or, if already admitted to bail, or money has been deposited instead thereof, the bail or money shall be answerable for the appearance of the defendant to answer a new information or indictment; and, unless a new information is filed or new indictment is found at the same or the next term of court, the court must make the order prescribed by the preceding section. [C. L. § 4968*.

Cal. Pen. C. 9984.

Amendment of information, 2 4694. Proceedings

on sustaining demurrer to information or indict

ment, 22 4783-4785. Dismissal for failure to bring action to trial, 2 5065-5067.

4776. Order setting aside not a bar. An order to set aside an information or indictment, as provided in this chapter, shall be no bar to a future prosecution for the same offense. [C. L. § 4969*.

Cal. Pen. C. 999.

Bar when judgment of acquittal entered, ? 4793.

CHAPTER 25.

DEMURRER.

4777. Defendant's pleading, a demurrer or a plea. The only pleading on the part of the defendant shall be either a demurrer or a plea. [C. L. $4970.

Cal. Pen. C. 1002.

4778. Put in in open court on arraignment. 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. [C. L. § 4971.

Cal. Pen. C. 1003.

4779. Grounds of demurrer. The defendant may demur to the information or indictment when it appears upon the face thereof,

1. 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, if an indictment, or, if an information, that the court has no jurisdiction of the offense charged therein; or,

2. That it does not substantially conform to the requirements of sections forty-seven hundred and thirty, forty-seven hundred and thirty-one, and fortyseven hundred and thirty-two.

3. That more than one offense is charged, except as provided in section forty-seven hundred and thirty-four; or,

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

5. That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution. [C. L. $ 4972*.

Cal. Pen. C. 1004*.

Order sustaining or overruling demurrer deemed excepted to,

4944.

Demurrer that the indictment "does not substantially conform to the requirements of sections

150 and 151 of the code of procedure in criminal cases as to the offense charged and the particular circumstances," sufficiently specifies the grounds of objection hereunder. People v. Hill, 3 U. 334; 3 P. 75.

4780. Demurrer to be in writing and to specify grounds. 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 information or indictment, or it must be disregarded. [C. L. § 4973*.

Cal. Pen. C. 1005.

4781. When demurrer to be argued. 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. [C. L. § 4974.

Cal. Pen. C. 1006.

4782. Judgment on demurrer. Entry. Upon considering the demurrer, the court must give judgment, either allowing or disallowing it, and an order accordingly must be entered upon the minutes.

Cal. Pen. C. ? 1007.

[C. L. § 4975.

4783. Effect of sustaining demurrer. Further prosecution. If the demurrer is allowed, the judgment shall be final upon the information or indictment demurred to, and shall be a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new information or indictment, directs that a new information be filed, or, that the case be resubmitted to the same or to another grand jury. [C. L. § 4976*.

Cal. Pen. C. 1008*. When jurisdiction found to be in another county or state, procedure, ?? 4864-4867. New information or resubmission of charge when facts charged do not constitute an offense, ?? 4864, 4868. New information or indictment when motion to set aside granted, 4775.

The words "next succeeding grand jury" ['78, p. 102] refer to the first grand jury that meets after the allowance of the demurrer. People v. Hill, 3 U. 334; 3 P. 75.

4784. Id. When defendant discharged. If the court does not permit the information to be amended, nor direct that a new information be filed, nor direct that the case be resubmitted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail shall be exonerated, or if he shall have deposited money instead of bail, the money must be refunded to him. [C. L. § 4977*.

Cal. Pen. C. 1009*.

Amendment of information, 4694.

4785. Id. If case resubmitted. If the court directs that the case be resubmitted, the same proceedings must be had thereon as are prescribed in section forty-seven hundred and seventy-five. [C. L. § 4978*.

Cal. Pen. C. 1010.

4786. If demurrer overruled, defendant must plead. 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 he does not plead, judgment may be pronounced against him. [C. L. § 4979.

Cal. Pen. C. ? 1011.

Judgment on refusal to plead after demurrer overruled, 4516.

A defendant in a criminal case may of right inter

pose a plea in abatement after demurrer entered and withdrawn. Brannigan v. People, 3 U. 488: 24 P. 767.

4787. What objections must be taken by demurrer. What at any time. When the objections mentioned in section forty-seven hundred and seventy-nine appear upon the face of the information or indictment, they shall be taken only by demurrer, except that the objection to the jurisdiction of the court

over the subject of the information or indictment, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, or after the trial, in arrest of judgment. [C. L. § 4980*.

Cal. Pen. C. ? 1012.
Objections except the two specified, not taken by

demurrer, are waived, U. S. v. West, 7 U. 437; 27 P. 84.

CHAPTER 26.

PLEA.

4788. Pleas, of four kinds. There are four kinds of pleas to an information or indictment. A plea of:

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, which may be pleaded with or without the plea of not guilty. [C. L. § 4981*.

Cal. Pen. C. 1016*.

"Not guilty" entered when defendant refuses to plead, 4796.

There is no issue in a criminal cause until a plea has been interposed by defendant, and a verdict rendered in the absence of any such plea cannot stand. People v. Heller, 2 U. 133.

There can be no waiver of right to plead in a criminal cause. The record must show that the

defendant pleaded, and in cases of felony the pleadings cannot be waived. Id.

Plea of former conviction not made is waived. In re Maughan, 6 U. 167; 21 P. 1088. In re Barton, 6 U. 264; 21 P. 998.

A defendant pleaded not guilty and once in jeopardy. The jury was discharged after trial with the consent of the defendant, when he was placed on trial again; held, that the defendant could not plead a failure of the jury to find upon the issues of once in jeopardy, he having consented to the discharge of the jury. People v. Kerm, 8 U. 268; 30 P. 988.

Every plea must be oral,

4789. Plea must be oral. Form of entry. and entered upon the minutes of the court substantially in the following form: If the defendant pleads guilty: "The defendant pleads that he is guilty of the offense charged."

1.

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

3. If he pleads a former conviction or acquittal: "The defendant 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 pleads once in jeopardy: "The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place, and court). [C. L. § 4982.

Cal. Pen. C. 2 1017.

4790. Plea of guilty put in only by defendant. Withdrawal. A plea of guilty can be put in only by the defendant himself, in open court, unless upon information or indictment against a corporation, in which case it may be put in by counsel. 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. [C. L. $4983.

Cal. Pen. C. 1018.

4791. Issue on plea of not guilty. The plea of not guilty puts in issue every material allegation of the information or indictment. [C. L. § 4984*.

Cal. Pen. C. 2 1019.

4792. Evidence under plea of not guilty. All matters of fact tending to establish a defense other than those specified in the third and fourth

subdivisions of section forty-seven hundred and eighty-eight, may be given in evidence under the plea of not guilty. [C. L. § 4985*.

Cal. Pen. C. 2 1020*.

If

4793. Former acquittal on ground of variance, not a bar. the defendant shall have been formerly acquitted on the ground of variance between the information or indictment and the proof, or the information or indictment shall have been 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 shall not be an acquittal of the same offense. [C. L. § 4986*.

Cal. Pen. C. 1021.

Dismissal to hold defendant for another offense not a bar, ?? 4863, 4904.

4794. Acquittal on merits a bar, notwithstanding defects. Whenever the defendant shall be acquitted on the merits, he shall be acquitted of the same offense, notwithstanding any defect in form or substance in the information or indictment on which the trial shall have been had. [C. L. § 4987*.

Cal. Pen. C. 1022.

4795. Conviction, acquittal, or once in jeopardy, a bar. When the defendant shall have been convicted or acquitted or been once placed in jeopardy upon an information or indictment, the conviction, acquittal, or jeopardy shall be a bar to another information or indictment 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 information or indictment. [C. L. § 4988*.

Cal. Pen. C. ¿ 1023.

Acquittal or conviction a bar, 224488, 4490. Persons not to be put twice in jeopardy, Con. art. 1, sec. 12; 4515. When dismissal a bar, when not, 25070.

Former conviction under complaint charging offense of gambling committed on Jan. 1, and on

divers days thereafter up to and including Sept. 19, does not bar indictment for gambling on a day between the two days particularly mentioned. People v. Sullivan, 9 U. 195; 33 P. 701.

For segregation of unlawful cohabitation, see 4209.

4796. Refusal to plead. If the defendant refuses to answer the information or indictment by demurrer or plea, a plea of not guilty must be entered. [C. L. § 4989*.

Cal. Pen. C. 1024.

4797. At least two days to prepare for trial. After his plea the defendant shall be entitled to at least two days to prepare for trial. § 5002.

Cal. Pen. C. 1049.

[C. L.

CHAPTER 27.

INFORMATION OR INDICTMENT AGAINST A JUDGE.

4798. Governor to designate another judge to preside. When an information is filed or an indictment is found in a district 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 district court of another district to preside at the trial of such information or indictment and hear and determine all pleas and motions affecting the defendant thereunder before and after judgment.

Mont. Pen. C. ? 1960.