Time.-If the indictment charge the offense to have been on a par ticular day, which date is anterior to the finding of the indictment, it is sufficient-5 Cal. 355; 6 id. 202; 2 Wash. C. C. 328; 1 Gray, 483; 19 Mo. 678; 34 Ga. 202; 11 id. 53; 13 id. 396; 20 Ala. 81; 1 Stewt. & P. 208; 33 Mich. 363; 9 Cowen, 660; 12 Gray, 326; 3 Hawks, 384; 11 Ga. 53; but if the day assigned be subsequent to the finding, the indictment is bad29 Ind. 212; 110 Mass. 103; 5 Serg. & R. 316; 28 Tex.642; 15 Vt. 291; 33 id. 67. When time is important, courts will inquire into a day, or fractional portion of a day-14 Cal. 571. The allegation of a day within a period of limitation is material when the offense is subject to limitation-12 Cal. 294. Matter avoiding the statute must be set out whenever it would otherwise appear that the offense is barred-18 Cal. 38. See ante, §§ 800, 959.

956. When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.

Statement as to person injured, and third parties.-Where a third person is unknown, it is sufficient to charge as to him "a certain person to the jurors unknown"-2 Cush. 551; 11 id. 137; 9 Allen, 280; 13 id. 248; 5 Blackf. 343; 15 Ind. 190; 2 Ill. 399; 20 Iowa, 574: 14 Mo. 340; 3 Parker Cr. R. 622. So, of a deceased person-16 Ark. 499; 2 Hayw. 348; 1 Car. & K. 82; or the owner of goods stolen-14 Mass. 217; 12 Pick. 173; 2 Barn. & Ald. 580; if he was at the time unknown to the jury-2 Gray, 503; 116 Mass. 21; 1 Car. & K. 187; but otherwise if he be really known to the jury-30 Conn. 500; 35 N. Y. 465; 1 Ohio St. 61; 6 Tex. Ct. App. 283; or if the jury had notice-13 Allen, 249; 111 Mass. 401; 3 Ind. 403; Holt N. P. 595; but the burden is on defendant to prove knowledge at the time-11 Cush. 137; 126 Mass. 54. Discovery of the name subsequently is, however, no ground for acquittal-11 Cush. 137; 2 Gray, 503; 38 Ala. 227; 7 Ind. 659; 14 Mo. 340; 1 Car. & K. 82; 1 Moody C. C. 402; or arrest of judgment-55 Barb. 606; S. C. 32 N. Y. 465. A christian name may be averred to be unknown-36 Ala. 270; 23 La. An. 68; see 2 Gray, 303; 116 Mass. 21. The mere omission of the initial of the middle name is no error-6 Pac. C. L. J. 610. If the company name is the name or style of a firm, the names of the several members should be stated; but if the name be of a corporation, the indictment is good if it state that fact-36 Cal. 248; 32 id. 160; 63 Ill. 450; 5 Parker Cr. R. 330; 27 Vt. 722. The averment is necessary when made so by statute-10 Mass. 70; 16 id. 141; 8 Barb. 637; 5 Parker Cr. R. 57; id. 334; 65 Ind. 204; 40 N. J. L. 169; 4 Rawle, 464. An erroneous allegation as to the party injured is not material-41 Cal. 236. If the allegation in which the misnomer appears is material, it may be rejected as surplusage-4 Pick. 252; 3 Sum. 12; 48 Ga. 30. Where the pleader undertakes to set out the names of a firm, a variance in the proof is fatal-25 Ind. 495.

Courts are required to observe and enforce the tests of the validity of indictments as prescribed in §§ 956 and 959 of this Code-27 Cal. 511; 37 id. 280; see 34 Cal. 200. If there are two counts and one of them is good, it is good on general demurrer-6 Pac. C. L. J. 610; 5 Cush. 295. For an erroneous allegation to be immaterial, the offense must be described in other respects with sufficient certainty-41 Cal. 236; 17 id. 336; 35 id. 114.

957. The words used in an indictment or information are construed in their usual acceptance in common language, except such words and phrases as are defined by

PEN. CODE.-31.

law, which are construed according to their legal meaning. [In effect April 9th, 1880.]

Words construed.-Words and phrases are to be construed according to their common acceptation, except such as are specifically defined by law-5 Cal. 356. See ante, § 7.

958. Words used in a statute to define a public offense need not be strictly pursued in the indictment or information, but other words conveying the same meaning may be used. [In effect April 9th, 1880.]

Statutory offenses.-The indictment is sufficient if it charge the offense in the language of the statute and fully comply with § 959 of the Code-53 Cal. 629; 21 id. 403; 25 id. 531; 19 id. 601; 10 id. 309; 3 Parker Cr. R. 208: 6 Cal. 488; 9 id. 584; 32 id. 91; 34 Cal. 114; id. 200; 14 id. 30; 39 id. 326; 12 Blatchf. 491; 5 Bush, 316; 13 íd. 318; 14 Conn. 487; 38 id. 400; 3 Cold. 125; 2 Gall. 5; 29 Gratt. 844; 1 Greene, 418; 2 id. 162; 3 Halst. 299; 3 Gratt. 590; 82 Ill. 610; 84 id. 216; 46 Iowa, 662; 3 Ga. 419; 1 Morris, 412; 119 Mass. 347; 22 Minn. 271; 67 Mo. 41; 1 McMull. 472; 57 N. H. 174; 1 Vt. 331; 38 Vt. 437; 3 Yeates, 451; 5 Whart. 427; 10 W. Va. 794; 2 Swan, 226; 2 Strob. 474. It is not necessary to follow strictly the language of a statute by which the offense is defined; words conveying the same meaning may be used-35 Cal. 114; 34 id. 114; 53 id. 629. If it alleges all the acts or facts which enter into the description of the offense, it is sufficient-34 Cal. 201. If a statute enumerates a series of acts as constituting the offense, all such acts may be charged in a single count-28 Cal. 510; if it enumerates them disjunctively and the indictment charges more than one of them, it must charge them conjunctively unless the words used disjunctively are synonymous-35 Cal. 503. It should state the particular provision of the act which has been violated-52 Cal. 201.

959. The indictment or information 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 indictment, that it was found by a grand jury of the county in which the court was held; or if an information, that it was subscribed and presented to the court by the district attorney 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 jury or district attorney, as the case may be, unknown.

4. That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.

5. That the offense was committed at some time prior to the time of finding the indictment or filing of the information.

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 a manner as to enable a person of common understanding to know what is intended.

7. That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case. [In effect April 9th, 1880.]

Subd. 1. Entitling indictment.-An indictment may be entitled either "county" or "city and county"-14 Cal. 572; 17 id. 363; 6 id. 202. The caption is no part of the indictment-6 Halst. 203; 2 Har. (Del.) 532; 1 Hawks, 354; 2 id. 261; 24 Ala. 672; 36 N. H. 359; 37 N. Y. 117; 13 Vt. 64; 30 id. 100; 3 Wend. 319; 2 Zab. 9. See 3 Baxt. 429; 6 Ad. & E. 247; 4 Abb. App. Dec. 509. Its purpose is to state the style of the court, the time and place where the indictment was found, etc.-20 Ala. 33; 39 Me. 78; 6 McLean, 56; 4 Tex. 125; 1 Yerg. 206. It must be set forth with reason able certainty-6 McLean, 56; 20 Ala. 33; 39 Me. 78; 4 Tex. 125; 1 Yerg. 206. See ante, § 950, note.

Subd. 2. Finding of indictment.-The indictment must allege the offense committed within the county in which it was found-48 Cal. 258; 6 id. 202; 30 Mich. 371; 8 Leigh, 721; Leigh & C. 128. See ante, § 950.

Subd. 3. Wrong names.-If a defendant Is indicted by a wrong name and so states when asked, and gives his true name, the true name must be substituted-32 Cal. 64. See ante, § 953, and note.

Subd. 4. Jurisdiction.-"That defendant at a time named was in the county where the indictment was found," sufficiently shows that the offense was committed within the jurisdiction of the court-44 Cal. 495; 4 Halst. 357; 1 Johns. 66; 1 Tyler, 295; Leigh & C. 128. An indict ment for an offense committed on a vessel, must set forth all the facts, giving the extra-territorial jurisdiction in § 783 of this Code-7 Cal. 395. An indictment against an accessory must be found in the county where the accessorial act was committed-27 Cal. 340; see 40 id. 599. When property is stolen in one county and carried into another, the party may be indicted in either county-29 Cal. 421; 25 id. 531. Where a county is divided, the offense may be laid in the new county, if committed there before the division-4 Halst. 357; 4 Tex. 450; see 15 How. 467; 39 Me. 291; 4 Ired. 219; see 13 Ark. 708. Until the organization of the new county, the indictment may be found in the old county-32 Cal. 140. See ante, § 786.

Subd. 5. When the day on which the indictment was found is given, the term of the court is sufficiently stated-14 Cal. 571. "Sabbath" for Sunday" is no variance-64 N. C. 589.

Subd. 6. See ante, § 950, subd. 2.

Subd. 7. See ante, § 952, subd. 3.

Arson.-Though the indictment give an erroneous appellation, yet if the facts stated constitute the offense it is sufficient-39 Cal. 331. The ownership of building in arson is a part of the description of the of

fense, and must be alleged directly and certainly-20 Cal. 80; 45 N. Y. 153; 26 Ala. 72; 28 id. 71. It may be alleged to have been the property of one not the owner, but who was occupying it as a residence-44 Cal. 495; see 15 Wend. 159. If a tenant burns the house, it is sufficient to allege title in the landlord-50 Cal. 305; 51 id. 320; 3 Ired. 570; see 29 Conn. 342. An indictment for burning a public building need not allege that it belonged to any one-12 Vt. 93. An indictment charging that defendant "did on a certain day burn, or cause to be burned, a certain dwelling-house," is bad-6 Cal. 236. That defendant" feloniously, willfully, and maliciously did burn and cause to be burned," is sufficient without the statement "set fire"-20 Cal. 80. Where the indictment charged that defendant at the time named was in the county where it was found, and then and there feloniously burned the building, it sufficiently shows that the offense was committed at a place within the jurisdiction of the court-44 Cal. 495. See ante, §§ 447–451. Assault to murder.-Reciting an "assault with intent to murder," and stating facts showing that he administered poison with intent to kill, does not charge two offenses-54 Cal. 54. An assault which charges that defendant did assault with intent to commit murder, is sufficient to sustain a judgment for a felony on a verdict of guilty-49 Cal. 391. An indictment is sufficient if it charges that defendant feloniously assaulted A. with a pistol loaded with powder and ball, with intent of malice aforethought to kill and murder A.-30 Cal. 218. See ante, § 217.

Assault to do bodily harm.-A charge of assault to do bodily harm, charges only a simple assault-47 Cal. 112; 6 id. 562; 40 id. 426. "An assault with a deadly weapon, with intent to inflict upon the person of another a bodily injury, there appearing no considerable provocation therefor, sufficiently designates the offense-20 Cal. 117.

Assault with a deadly weapon.-The weapon or instrument used in the assault is the gist of the offense, and must be alleged-6 Cal. 562. The indictment should allege that the weapon was deadly, or state facts to show that it was-29 Cal. 579. If it is not direct and certain as to the offense charged, it is insufficient-12 Cal. 326. The indictment should state directly and certainly that the assault was with a deadly weapon; that is, used as an instrumentality of the assault-6 Cal. 562; 29 id. 579; 44 id. 93; 52 id. 451. Unless the correct name of the party assaulted is given, the other facts and circumstances must sufficiently identify the act-35 Cal. 114. See ante, § 467.

Burglary. In burglary the essential words are "feloniously and burglariously entered the dwelling-house in the night-time," and the felony intended or perpetrated must be stated-68 Ill. 271; 29 Tex. 47; see 16 Conn. 32. An allegation that he entered in the night-time feloniously and burglariously, and with force and arms, is substantially sufficient-43 Cal. 446; but "burglariously" is not necessary in statutory housebreaking-4 Met. 357. That it was in the night-time_must be alleged-16 Conn. 32; 4 Leigh, 658; 5 How. (Miss.) 20; 1 N. J. L. 439. The hour of the night need not be charged, nor if charged, proved35 Cal. 115; 35 N. J. L. 71; see 36 Me. 225; 2 Cush. 582. An indictment charging an intent to steal must specify the value of the goods-8 Cal. 519. It may charge in different courts ownership in different persons28 Cal. 214; see 12 Allen, 183. An indictment for" entering a room or apartment with intent to commit larceny," rightly charges the owner ship in him who rents such room from one having control of the house -38 Cal. 137. For breaking and entering a house in the night-time with intent to commit larceny, it need not charge whose goods were intended to be stolen, or whether there were any goods to steal-32 Cal. 36. An indictment for burglary must charge a felonious intent3 Har. (Del.) 554; 48 Ala. 684. The intent must be charged, but when this is omitted on proof of larceny, defendant may be convicted-11 N. H. 269; S. C. 2 Lead. C. C. 123; 2 Rawle, 207; Russ. & R. C. C. 445; S. C. 2 Lead. C. C. 122; otherwise as to an indictment for breaking and

entering in the day-time-3 Cold. 77. It is not enough to allege intent to commit a felony; the particular offense must be stated and the facts set forth-24 Ga. 420; 41 Tex. 237; otherwise under statutes-26 N. Y. 200; but the particular crime need not be fully and technically set forth-10 Cush. 52. See ante, § 459.

Counterfeiting.-Knowledge of defendant of spurious character of the coin is sufficiently charged in the words "willfully, feloniously, and knowingly did have in his possession," etc.-39 Cal. 698. See ante, $$ 477-479.

False entry in corporation books.-The indictment should specify the particular entry complained of, and should at least state the substance of it according to its legal effect-53 Cal. 616. That defendant made a false entry, "by which false entry it appears that the cash on hand at the commencement of that day" was a specified sum, is insufficient-53 Cal. 616. See ante, § 563.

Forgery.-An indictment for forgery may charge defendant in the saine count with forging an indorsement, and also with uttering and passing the forged draft-28 Cal. 513; and see 27 Cal. 400. "Having knowledge of the false making" means that the offender knew the notes were falsely made-8 Mass. 59; see 39 Cal. 698. The possession of several "similar" bills means that they should be all bank-bills-8 Mass. 59. It is not necessary to allege that the banking-house was an incorporated company, unless that fact be on issue-41 Cal. 651; 2 Har. (Del.) 327; 4 Biss. 302; contra, 2 Met. (Ky.) 36; 11 Gray, 306; 1 Duval, 90. See ante, § 470.

The indictment should set out the instrument alleged to have been forged, or state the reason for the omission-1 Chip. D. 298; 1 Head, 139; 8 Humph. 93; 2 Mason, 464; 1 McMull. 236; 2 Cowen, 522; 4 Halst. 26; 34 Me. 223; 47 id. 165; as in case of forged treasury-notes-4 Biss. 59; see 8 Iowa, 288; 34 Vt. 501. So, it should recite an altered instrument in its altered state-17 N. H. 323. Where it alleges"in the words and figures following," a strict recital is necessary-1 Mass. 62; id. 203. It is sufficient if it appears by proper averments that the instrument forged is of the kind prohibited by statute-9 Gray, 123; 19 Minn. 98; S. C. 1 Green C. R. 541. It need not allege that the deed forged was under seal-6 Parker Cr. R. 683. It need not show that the papers forged contained all the facts necessary to give title to the party-4 Blatchf. 385.

If the instrument be in a foreign language, a copy of the translation in the indictment, is sufficient-28 Cal. 208; and if set out in full, a misnomer is immaterial-id. The indictment must show that the forged instrument is one which, if genuine, would injure another-35 Cal. 507; it must show the forgery of a valid instrument-28 Ind. 396; see 2 Dev. 443. The omission of the initial of the middle name of the party to be injured, is an immaterial variance-6 Pac. C. L. J. 610; so, a variance between misspelled words in the forged instrument and the properly spelled words in the indictment, is immaterial-id. 938. The omission of a word in an indictment for forgery is fatal-1 Bald. 292; 2 Mason, 464; Tayl. 158; see 1 Hayw. 403; but vignettes, devices, letters, and figures, or stamps in the margin, need not be inserted-2 Binn. 332; 5 Cush. 605; 3 Johns. Cas. 299; 8 Leigh, 732; 14 Ohio St. 55; 5 N. H. 367; 1 Mass. 62; id. 203; but to omit the name of the State in the upper margin of a bank-note has been held fatal-2 Gray, 70.

Gambling. An indictment for gambling is good if it states the acts constituting the offense, without stating the particulars, as persons present, the room, and the like-14 Cal. 30. See ante, § 330.

Murder.-The venue must be laid in the county where the wound was given-9 Humph. 657; 2 Va. Cas. 205; but see 2 Greene, 286. The crime must be stated directly and certainly-47 Cal. 102. The time when the crime was committed is material only to show that death