CHAPTER II. RULES OF PLEADING AND FORM OF THE INDICTMENT. $948. Form of and rules of pleading. § 949. First pleading by the people is indictment, or information. § 950. Indictment, or information, what to contain. § 954. Must charge but one offense and in one form, except where it may be committed by different means. § 955. Statement as to time when offense was committed. § 956. Statement as to person injured or intended to be. § 957. Construction of words used. § 958. Words used in a statute need not be strictly pursued. § 959. § 960. Not insufficient for defect of form not tending to prejudice de fendant. § 961. Presumptions of law, etc., need not be stated. § 962. Judgments, etc., how pleaded. § 965. Pleading for forgery, where instrument has been destroyed or withheld by defendant. § 966. Pleading for perjury or subornation of perjury. § 967. Pleading for larceny or embezzlement. § 968. Pleading for selling, exhibiting, etc., lewd and obscene books. § 969. Previous conviction of another offense. [Repealed.] § 970. Indictment against several, one or more may be acquitted. § 971. Distinction between accessory before the fact and principal abrogated. § 972. Accessory may be indicted and tried, though principal has not been. 948. All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code. Rules of pleading.-The Criminal Code was designed to work the same change in pleading and practice on criminal actions which is wrought by the Civil Code in civil actions-27 Cal. 510. The form of indictment and rules by which the sufficiency of pleadings are deter mined must be sought for in its provisions-28 Cal. 208; 19 id. 598: 21 id. 403; 27 id. 510; 34 id. 200; 37 id. 280; 39 id. 55. 949. The first pleading on the part of the people is the indictment or information. [In effect April 9th, 1880.] 950. The indictment or information must contain1. 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. [In effect April 9th, 1880.J Caption. Entitling an indictment specifying the name of the court, as of the County of San Francisco, or as the City and County of San Francisco, is sufficient-14 Cal. 572; and see 10 id. 21. Subd. 1. The indictment must be certain as to the defendant's name-58 Ind. 567; but when once given in full, it may be repeated by the christian name only-65 Me. 111; but each count must describe him by his full name-6 Gray, 478; 1 Denison, 356; see 1 Eng. 165. Misnomer of defendant must be taken advantage of by plea in abatement-15 Me. 122; 29 id. 329; 1 Mass. 76; 1 Met. 151; 119 Mass. 199; 32 Iowa, 17; 54 Ala. 155; 2 Va. Cas. 20; 1 Tex. Ct. App. 531. If a man renders it doubtful what his true name is, he cannot complain of the misnomer-2 Cromp. & J. 215. A corporation may be indicted in its corporate name -12 Serg. & R. 389; 10 Mass. 78; 16 id. 142; 40 N. J. 169; 2 Va. Cas. 296; 28 Vt. 583; 9 Car. & P. 478; 7 El. & B. 453; 9 Q. B. 315; see 45 N. Y. 153; 28 Ind. 321; 63 Ill. 481. An allegation charging defendant as "superintend ent of common schools," is sufficient-39 Cal. 425; see 35 id. 114. Names are used for the purpose of identification-6 Cal. 212; and the use of initials by which the party may be more readily known and identified, though varying from the true initials, is not a fatal error-37 Cal. 280; so, an error in the initial of a middle name is immaterial-20 Cal. 435; see 29 id. 262; 34 id. 190; 6 Pac. C. L. J. 610. Where the name of defendant was prefixed by the initial letters of his christian names, it was held good on motion for arrest of judgment-37 Cal. 280; see 10 N. H. 347; 3 Met. (Ky.) 484; 27 Conn. 42; 47 Ill. 122; 4 McCord, 487; 3 Rich. 172; 65 N. C. 313; 67 id. 58; 31 Tex. 560; 13 Blatchf. 276. The omission of a middle name is not a fatal defect-6 Cal. 205; 39 Ill. 457; 17 Ala. 179; 14 Barb. 259; 2 Cowen, 463; 20 Iowa, 98. See 7 Eng. 622; 48 Ind. 483; 10 Mo. 391; 1 Ld. Raym. 562; as the law does not recognize more than one christian name-14 Tex. 402; 20 Iowa, 98; contra, I Pick. 388; and see 3 id. 362; 40 Me. 438. Principal and accessory.-Under an indictment which charges defendant as principal, he cannot be found guilty if the evidence shows him to have been an accessory-41 Cal. 431; 39 id. 75; 40 id. 129. An indictment against an accessory must, in addition to other matter, contain all the averments necessary in an indictment against the principal, and it must therefore allege that the crime of the principal was committed before it was found and presented-50 Cal. 416; 31 id. 567. He must be indicted in the county where the accessorial act was com mitted-27 Cal, 340; see 40 id. 599. See ante, § 31. Subd. 2. Statement of offense.-Facts necessary to constitute the crime must be stated-6 Cal. 207; id. 238; 9 id. 31; id. 275; 20 id. 79; see 47 id. 102; in ordinary and concise language, and in such a way that a person of ordinary understanding can know what is intended-14 Cal. 29. All the matters must be set forth in which its illegality consists— 52 Cal. 201. Every averment that is substantially necessary to enable defendant to defend himself must be stated-9 Cal. 55; and the omission will be fatal-8 Ill. 76; id. 356; 25 Vt. 373; 8 Barn. & C. 114; but unnecessary averments or aggravations are surplusage, and will be disregarded-13 Blatchf. 178; 2 Murph. 186; 22 Minn. 67. If it does not substantially conform to the requisites of this section, it is demurrable-49 Cal. 390. It is not enough to state a mere conclusion of law92 U. S. 544; 56 Ind. 107; as charging one with "stealing," or "murdering"-52 Cal. 201; 2 Curt. 265; 1 Hughes, 448; 73 N. C. 269; 31 Ind. 72; 30 Tex. 518; 1 Rolle, 79; 2 Strange, 699; or with being a defamer, or evildoer, etc., or any such vague charge-110 Mass. 181; see 1 Mod. 71; 2 Strange, 848; 2 Hawk. P. C. ch. 25, § 59. Facts not vital to the accusation, as mere matters of description, may be stated as unknown to the grand jury-36 Cal. 247; 3 Denio, 91; provided it is described as accurately as possible-5 Cush. 295; 125 Mass. 384; id. 387; id. 394; 7 Jones, (N. C.) 446; but it must be shown that it was actually unknown to them-26 Mich. 298; 3 Ind. 403; 13 Mo. 246; 16 Ark. 499. A bare negative qualification need never be averred in an indictment, but must be relied on as matter of defense-4 Cal. 341; 6 id. 562; 30 id. 218; 53 id. 600. When the occurrence of several acts, or the doing of an act under peculiar circumstances, is necessary to constitute the offense, the indictment must state them-40 Cal. 55. An allegation in an indictment descriptive of the identity of what is legally essential to the defense cannot be rejected as surplusage-20 Cal. 76. 951. It may be substantially in the following form: The People of the State of California against A. B., in the Superior Court of the county of A. , the day of —, A. D. eighteen B. is accused by the grand jury of the county of by this indictment, (or by the district 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 at the county of day of (here A. D. eighteen set forth the act or omission charged as an offense) contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the State of California. [In effect April 9th, 1880.] Form of indictment.-For murder-34 Cal. 209; followed-47 id. 102; cited-37 id. 280; 49 id. 390; for forgery-6 Pac. C. L. J. 610; for larceny -6 id. 569; for assault to commit murder-30 Cal. 216. Appellation of crime.-The name given to the offense is not of itself the charge of an offense, and a mistake in regard to it is a mere irregularity, and not fatal-54 Cal. 54; 39 id. 331; 14 id. 572. It is not necessary to state in terms that it is a felony, or a misdemeanor-20 Cal. 117 and it need not state the degree of the crime-21 id. 402; and the word "feloniously" need not be used-7 id. 403; 3 Hill, 92; 22 Wend. 175; 1 N. Y. 379; 15 Pa. St. 95; 7 Serg. & R. 423; 5 Ohio, 1; Cald. 397; 2 East P. C. 1028; but see 2 Md. 376. So, "unlawfully" and other aggravating terms need not be used-1 Low. 305; 4 Iowa, 502; 58 Ind. 514; 3 Heisk. 376; 1 Mo. 126; 27 Vt. 103; 23 N. H. 321. In an indictment for dealing faro, designating the offense as a felony is sufficient-14 Cal. 572. An erro neous appellation or no appellation of the offense is of no consequence, if the acts as defined by statute are sufficiently stated-39 Cal. 326; 14 id. 566. The maxim of idem sonans does not apply to an indictment charging" larcey" for larceny-6 Pac. C. L. J. 322. 952. It must be direct and certain, as it regards1. The party charged. 2. The offense charged. 3. The particular circumstances of the offense charged, when they are necessary to constitute a complete defense. Must be direct and certain.-51 Cal. 372; 20 id. 80. If the language is capable of two interpretations, only one of which imports a charge, the indictment is not good-35 Cal. 671. The law does not require greater certainty than the nature of the case affords-34 Cal. 191; 36 id. 247. Subd. 1. As to party charged-14 Cal. 30; 34 id. 209; 53 Cal. 616. See ante, § 950, subd. 1, note. Subd. 2. As to the offense-14 Cal. 30; 20 id. 80; 34 id. 209; 53 id. 616. Where the indictment charged the offense as "larcey," instead of "larceny," it was held that no offense was charged-6 Pac. C. L. J. 322. The substantial facts must appear with such certainty as will enable a man of ordinary intelligence to understand what is intended, and to enable the court to pronounce a proper judgment-4 Cal. 238; 9 id. 576; 10 id. 50; 34 id. 183; 35 id. 671; 40 id. 55. Subd. 3. As to the circumstances-14 Cal. 30; when necessary to constitute a complete offense-34 id. 209; 47 id. 102; 49 id. 395. If it does not substantially conform to the requirements of this section it is demurrable-49 Cal. 395. As to larceny by bailee-19 Cal. 601. Assault with deadly weapon-12 Cal. 326. See notes under $$ 950, 959. Where an act contains several provisions, an indictment for violating it must state the peculiar provisions which the person intended to violate-52 Cal. 201. See ante, § 950, note; and post, § 959 and note. 953. 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, referring to the fact of his being charged by the name mentioned in the indictment or information. [In effect April 9th, 1880.] Constitutionality.-This section is not in violation of art. i, § 13, of the Constitution of California-6 Cal. 213. See Const. Prov. ante, p. 17. Indictment in wrong name.-If defendant is indicted by a wrong name, and so states when asked, and gives his true name, the true name must be substituted, and all after-proceedings be had in that name-32 Cal. 60; see 5 Iowa, 434. 954. The indictment or information must charge but one offense, but the same offense may be set forth in dif ferent 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. [In effect April 9th, 1880.] Indictment must charge but one offense-49 Cal. 453; 27 id. 401. If the indictment charges more than one offense, the objection is deemed waived, unless it is taken by demurrer-6 Pac. C. L. J. 152; 53 Cal. 647; 47 id. 108; 35 id. 118; 27 id. 403; 17 id. 361; 29 id. 622. An indictment which charges burglary, mixed with larceny, charges two offenses-29 Cal. 622; or charging A. with the larceny of certain goods, and B. with feloniously receiving them-34 Cal. 182; but where, in one count it charges the goods taken to be the property of A., and in another to be the property of B., and in a third count to be the property of C., it does not charge different offenses-17 Cal. 361. Where two distinct acts are perpetrated by the same person, at the same time, they constitute but one offense-27 Cal. 401; 4 Dana, 518; 2 Har. & J. 426; 3 Hill, (S. C.) 1; 5 Port. 40; 15 Pick. 273; 20 id. 360; 22 id. 1. So, when a tax-collector receives money for licenses due the State, and other money for licenses due the county, and embezzles the whole, it is but one offense-28 Cal. 507; so, an indictment which charges with forging and uttering does not charge two offenses-id.; see 27 id. 401; so, an indictment which charges one with buying and receiving stolen property, charges but one offense-18 id. 38; or charging one with having and circulating licenses other than those authorized by law, charges but one offense-31 id. 459. Reciting an accusation of assault with intent to murder, and stating facts showing that he administered poison with intent to kill-54 Cal. 54; or charging an assault and battery only as part of, or mode of executing, a forcible arrest or abduction-39 id. 604; or charging rape, and assault to commit it, is not charging two offenses-35 Cal. 553. If the indictment contains more than one count, it should clearly appear that they are descriptive of the same transaction-28 Cal. 214. Alternative allegations.-Allegations in the alternative are permitted when they qualify an unessential description of a particular offense, and do not touch the offense itself-54 Ala. 579; 13 W. Va. 859; as describing a horse stolen as being" either a brown or a bay color" -13 Vt. 647; or that certain trees cut down were the property of the defendants or either of them-7 Pa. St. 439; 16 Ind. 9; or as an innholder or victualer"-2 Met. 119; 5 id. 246; or, "in a certain paper or publication "-3 Johns. Cas. 338; or, cutting or causing to be cut-6 McLean, 186; see 4 Mo. 474; or alleging a nuisance to be on the "highway or road," have been held to be good-3 Yeates, 417; see 24 Conn. 286; 55 Ala. 64; 4 Mo. 474. The use of "or" in an allegation is fatal when it renders a statement uncertain-8 Mass. 59; 2 Gray, 501; 4 Mo. 474; 4 Parker Cr. R. 26; see 7 Gratt. 592. When the words of a statute are synonymous, it may not be error to charge them alternatively-35 Cal. 509; 4 Mo. 474; 62 id. 393; 43 Tex. 519; see 2 Binn. 338; so, "or" may be introduced in enumerating negative averments to exclude exceptions in a statute-20 N. H. 550; 5 W. Va. 508. When the statute enumerates several acts disjunctively, the indictment should charge them in the conjunctive-28 Cal. 205; id. 513; 35 id. 508. 955. The precise time at which the offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense. April 9th, 1880. [In effect |