Crim. Prac. Act, sec. 275. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. See ante, sec. 988. § 990. Time allowed, and how defendant may answer on arraignment. If, on the arraignment, the defendant requires it, he must be allowed a reasonable time, not less than one day, to answer the indictment or information. He may, in answer to the arraignment, move to set aside, demur, or plead to the indictment or information. February 14, 1872. Am'd. 1880, 17. Cal. Rep. Cit. 90, 200. En. Crim. Prac. Act, sec. 276. En. April 20, 1850. 1851, 290. En. 1851, 212. Rep. Crim. Prac. Act, sec. 277. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 21, 372; 26, 114; 28, 272; 34, 308. § 995. § 996. § 997. § 998. § 999. CHAPTER II. SETTING ASIDE THE INDICTMENT. Indictment, when set aside on motion. Defendant waives objections, unless he makes the motion. Motion, when heard. If denied or granted, what proceedings are to be had. Effect of order for submission. Order no bar to another prosecution. § 995. Indictment, when set aside on motion. The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases. If it be an indictment: 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 is permitted to be present during the session of the grand jury, and when the charge embraced in the indictment is under consideration, except as provided in section nine hundred and twenty-five. 4. When the defendant had not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge, either to the panel or to any individual grand juror. If it be on information 1. That before the filing thereof the defendant had not been legally committed by a magistrate. 2. That it was not subscribed by the district attorney En. February 14, 1872. 49, 650; 49, 651; 54, 38; of the county. Cal.Rep.Cit. 59, 365; 64, 261; 64, 382; 65, 615; 68, 503; 69, 547; 76, 345; 82, 621; 83, 558; 91, 642; 115, 60; 117, 560; 76, 344. Subd. 276, 344. Subd. 4-119, 2; 119, 325; Crim. Prac. Act, sec. 278. 1851, 290. En. 1851, 212. Cal.Rep.Cit. 4, 219; 46, 147; 46, 154. Am'd. 1880, 43. 54, 399; 56, 38; 4, 225; 21, 372; 26, 114; 28, 272; Crim. Prac. Act, sec. 279. 1851, 290. En. 1851, 212. Cal.Rep.Cit. 34, 308. En. April 20, 1850. Rep. § 996. Defendant waives objections, unless he makes the motion. If the motion to set aside the indictment or information is not made, the defendant is precluded from afterward taking the objections mentioned in the last section. En. February 14, 1872. Am'd. 1880, 17. Cal.Rep.Cit. 48, 550; 82, 621; 90, 200. Crim. Prac. Act, sec. 280. En. April 20, 1850. 1851, 290. En. 1851, 212. Cal.Rep.Cit. 21, 372; 28, 272; 34, 308; 48, 550. Rep. § 997. Motion, when heard. If denied or granted, what proceedings are to be had. 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 indictment or information, 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 the case be resubmitted to the same or another grand jury, or that an information be filed by the district attorney; provided, that after such order of resubmission the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases, if, before indictment or information filed, he has not been examined and committed by a magistrate. En. February 14, 1872. Am'd. 1880, 17. Cal.Rep.Cit. 88, 85; 101, 515; 127, 64; 130, 74. Crim. Prac. Act, sec. 281. En. April 20, 1850. 1851, 290. En. 1851, 212. Rep. See ante, sec. 942. Resubmission of charge: § 998. Effect of order for submission. If the court directs the case to be resubmitted, or an information to be filed, the defendant, if already in custody, must SO remain, unless he is admitted to bail; or, if already admitted to bail, or money has been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment or information; and, unless a new indictment is found, or information filed before the next grand jury of the county is discharged, the court must, on the discharge of such grand jury, make the order prescribed by the preceding section. En. February 14, 1872. Am'd. 1880, 17. Crim. Prac. Act. sec. 284. En. April 20, 1850. Rep. 1351, 290. En. 1851, 212. Crim. Prac. Act, sec. 285. En. April, 20, 1850. Rep. 1851, 290. En. 1851, 212. § 999. Order no bar to another prosecution. An order to set aside an indictment or information, as provided in this chapter, is no bar to a future prosecution for the same offense. En. February 14, 1872. Am'd. 1880, 18. Cal.Rep.Cit. 123, 455; 127, 64; 130, 75. Crim. Prac. Act, sec. 286. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Jeopardy: See ante, sec. 687. § 1007. § 1008. § 1009. § 1010. § 1011. Demurrer or plea, when put in. Demurrer, how put in, and its form. Judgment on demurrer. If allowed, bar to another prosecution, when. If resubmission not ordered, defendant discharged, etc. Proceedings, if demurrer is disallowed. § 1012. Objection, forming ground of demurrer, when taken. § 1002. Pleading on part of defendant. The only pleading on the part of the defendant is either a demurrer or a plea. En. February 14, 1872. Crim. Prac. Act,. sec. 287. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1003. Demurrer or plea, when put in. 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. En. February 14, 1872. Crim. Prac. Act, sec. 288. En. April 20, 1850. 1851, 290. En. 1851, 212. Time to plead: Ante, sec. 990. Rep. § 1004. Grounds of demurrer. The defendant may de mur to the indictment or information, when it appears upon the face thereof, either 1. If an indictment, 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; or, if an information, that the court has no jurisdiction of the offense charged therein. 2. That it does not substantially conform to the requirement of sections nine hundred and fifty, nine hundred and fifty-one, and nine hundred and fifty-two. 3. That more than one offense is charged. 4. That the facts stated do not constitute a public offense. 5. That it contains any matter, which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution. En. Feb ruary 14, 1872. Am'd. 1880, 18. Cal.Rep.Cit. 47, 108; 47, 113; 56, 535; 58, 225; 64, 158; 71, 392; 77, 34; 82, 620; 103, 677; 119, 168; 120, 661; 133, 624. Subd. 2-107, 480. 133, 624. Crim. Prac. Act, sec. 289. 1851, 290. En. 1851, 212. 48, 252; 48, 559; 49, 390; 68, 504; 71, 389; 85, 89; 103, 428; Subd. 1Subd. 3-106, 640. Subd. 4 64, 261; En. April 20, 1850. Rep. Cal.Rep.Cit. 17, 361; 27, 402; 29, 262; 43, 83. Subd. 2. Specific requirements, etc.:. See ante, secs. 950, 951, 952, 954, 959. Waiver of objection by not demurring: See post, sec. 1012. § 1005. Demurrer, how put in, and its form. 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 indictment or information, or it must be disregarded. 1880, 18. Cal. Rep.Cit. 138, 535. En. February 14, 1872. Am'd. |