testimony and proceedings to be taken down in shorthand, in all examinations herein mentioned, and for that purpose he may appoint a stenographer. The deposition or testimony of the witness must be authenticated in the following

form:

1. It must state the name of the witness, his place of residence, and his business or profession.

2. It must contain the questions put to the witness, and his answers thereto, each answer being distinctly read to him as it is taken down, and being corrected or added to until it conforms to what he declares is the truth; except that in cases where the testimony shall be taken down in shorthand, the answer or answers of the witness need not be read to him.

3. If a question put is objected to on either side and overruled, or the witness declines answering it, that fact, with the ground on which the question shall have been overruled or the answer declined, must be stated.

4. The deposition must be signed by the witness, or if he refuse to sign it, his reason for refusing must be stated in writing as he gives it, except that in cases where the deposition shall be taken down in shorthand, it need not be signed by the witness.

5. It must be signed and certified by the magistrate when reduced to writing by him, or under his direction, and when taken down in shorthand, the transcript of the stenographer appointed as aforesaid, when written out in longhand, and certified as being a correct statement of such testimony and procedings in the case, shall be prima facie a correct statement of such testimony and proceedings. The stenographer shall, if the defendant is held to answer the charge, within ten days after the close of such examination, transcribe his said shorthand notes into longhand, and certify and file the same with the clerk of the district court of the county in which the defendant shall have been examined, and shall in all cases file his original notes with said clerk. The stenographer's fees shall be paid out of the treasury of the county. [C. L. 4883*. Cal. Pen. C. ? 869*.

Failure of reporter to file transcript does not prevent defendant from being brought to trial where defendant did not claim that he was prejudiced

thereby, and did not ask for a continuance in order to secure same. People v. Thiede, 11 U. 241; 39 P. 837. Affirmed, Thiede v. People, 159 U. S. 510.

4671. Custody and disposition of depositions, etc. The magistrate or his clerk must keep the depositions taken, and exhibits admitted as evidence on the examination, until they shall be returned to the proper court; and must not permit them to be examined or copied by any person except a judge of a court having jurisdiction of the offense, or authorized to issue writs of habeas corpus. the attorney general, county attorney, or other prosecuting attorney, and the defendant and his counsel. [C. L. § 4884.

Cal. Pen. C. ? 870.

4672. Id. Violation of preceding section a crime. Every violation of the last section is punishable as a misdemeanor.

N. Dak. (1895) 27963.

4673. Defendant discharged for want of probable cause. If, after hearing the proofs, it appears that either no public offense has been committed, or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged, by an indorsement on the warrant or the complaint, signed by him, to the following effect: "There being no sufficient cause to believe the within named A B guilty of the offense within mentioned, I order him discharged." [C. L. § 4885*.

Cal. Pen. C. 871.

4674. Id. When costs taxed against complainant. If the defendant on a preliminary examination for a public offense is discharged as provided in the previous section, and if the magistrate finds that the prosecution was malicious or without probable cause, he shall enter such judgment on his docket and tax

the costs against the complaining witness, which shall be enforced as judgments for costs in criminal cases, and execution may issue therefor.

N. Dak. (1895) 27965.

4675. When defendant held to answer. Order. If, however, it appear from the examination that a public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must indorse on the complaint an order, signed by him, to the following effect: "It appearing to me that the offense in the within complaint mentioned (or any offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A B guilty thereof, I order that he be held to answer to the same." [C. L. § 4886*. Cal. Pen. C. ? 872*.

4676. Id. Order when offense not bailable. If the offense is not bailable, the following words, or words to the same effect, must be added to the indorsement: "And that he is hereby committed to the sheriff of the county of ." [C. L. § 4887.

Cal. Pen. C. 873.

4677. Id. Order when bail has been taken. If the offense is bailable, and bail is taken by the magistrate, the following words must be added to the aforementioned indorsement: "And I have admitted him to bail to answer by the undertaking hereto annexed." [C. L. § 4888.

4678.

Id. Order when offense bailable.

If the offense is bailable and the defendant is admitted to bail, but bail shall not have been given, the following words must be added to the order indorsed on the complaint: "And that he is admitted to bail in the sum of dollars, and is committed to the sheriff of the county of, until he gives such bail, or is legally discharged." § 4889.

[C. L

4679. Commitment to be delivered with defendant. If the magistrate orders the defendant to be committed, he must make out a commitment," signed by himself, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed, or, if that officer is not present, to a peace officer, who must immediately deliver the defendant into the proper custody. together with the commitment. [C. L. § 4890.

Cal. Pen. C. 876.

4680. Id. Form of. The commitment must be to the following effect: STATE OF UTAH,

An order having been this day made by me that A B be held to answer upon a charge of (stating briefly the nature of the offense, and giving as near as may be the time when and the place where the same was committed), you are commanded to receive him into your custody and detain him until he is legally discharged.

Dated at Cal. Pen. C. ? 877.

this

day of

18. [C. L. § 4891.

4681. Witnesses may be required to give bonds. On holding the defendant to answer, the magistrate may take from each of the material witnesses examined before him on the part of the state a written undertaking, without surety, to the effect that he will appear and testify at the court to which the complaint and depositions are to be sent, or that he will forfeit the sum of two hundred dollars. [C. L. § 4892.

Cal. Pen. C. ? 878*.

4682. Id. Sureties may be required. When the magistrate or a judge of the court in which the action is pending shall be satisfied, by proof on oath, that there is reason to believe that any such witness will not appear and testify unless security is required, he may order the witness to enter into a written undertaking, with sureties, in such sum as he may deem proper, for his appearance as specified in the last section. [C. L. § 4893.

Cal. Pen. C. 879.

4683.

Id. When witness is a minor. When a minor is a material witness, any other person may be allowed to give an undertaking for the appearance of such witness; or the magistrate may, in his discretion, take the undertaking of such minor in a sum not exceeding fifty dollars, which shall be valid and binding in law, notwithstanding the disability of minority.

Mont. Pen. C. ? 1690*.

4684. Id. Commitment for failure to give. If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the magistrate must commit him to prison until he complies or is legally discharged. [C. L. § 4894.

Cal. Pen. C. 881.

4685. Examination of witness unable to give bond. When, however, it shall satisfactorily appear, by examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the state. Such examination must be by question and answer, in the presence of the defendant, or after notice to him, if on bail, and conducted in the same manner as the examination before a committing magistrate is required by this code to be conducted, and the witness must thereupon be discharged; but this section shall not apply to an accomplice in the commission of the offense charged. [C. L. § 4895. Use of such testimony,

Cal. Pen. C. 2 882.

4513.

4686. Magistrate must return papers to district court. magistrate shall have discharged a defendant, or shall have held him to answer, he must return without delay, to the clerk of the court at which the defendant is required to appear, the warrant if any, the complaint, the depositions if any, a list of the names and the post office addresses of all witnesses for the state, if he can ascertain them, and all undertakings of bail and for the appearance of witnesses taken by him, together with a certified copy of the record of the proceedings as it appears on his docket. [C. L. § 4896; '96, p. 312.

Cal. Pen. C. 883*.

4687. When defendant a convict. Examination in prison. When the defendant is a convict in the state prison, or a prisoner in a county jail, the examination may be held in the office of the prison or jail. In such cases the commitment shall be directed to the warden of the prison or to the keeper of the jail. ['96, p. 271*.

CHAPTER 17.

PROSECUTION BY INFORMATION, INDICTMENT, OR ACCUSATION.

4688. Prosecutions in district court to be by information, etc. All public offenses triable in the district courts, except cases appealed from justices' courts, must be prosecuted by information or indictment, except as provided in the next section. [C. L. § 4897*.

Cal. Pen. C. ? 888*.

Prosecution by information or indictment, Con. art. 1, sec. 13; ? 4509.

4689. Action for removal from office begun by accusation. When the proceedings shall be for the removal of any district, county, precinct, municipal, or school officer, or officer of any board of education, or of a state officer not liable to impeachment, for any high crime, misdemeanor, or malfeasance in office, they may be commenced by an accusation in writing presented by the grand jury or by the county attorney, as provided in chapter eight of this title. ['96, p. 108.

Cal. Pen. C. ? 889*.

Removal by judicial proceedings, Con. art. 6, sec. 21; 22 4565-4580.

4690. Id. Accusation, information, or indictment. All accusations, informations, or indictments against officers mentioned in the next preceding section must be presented to, or filed or found in the district court.

Cal. Pen. C. 890*.

4691. Officers mentioned may be prosecuted criminally. Nothing in this chapter shall be construed to prevent the officers above mentioned from being proceeded against, by information or indictment, for a public offense in the same manner as now is or may hereafter be provided by law for so proceeding against other persons accused of a public offense.

N. Dak. (1895) 2 7981*.

Amended

CHAPTER 18.

THE INFORMATION.

4692. Information to be filed within thirty days after commit

Chap 56 ment. When a defendant has been examined and committed as provided in this 1999

code, it shall be the duty of the county attorney, within thirty days thereafter, to file in the district court of the county in which the offense is triable, an information charging the defendant with the offense for which he is held to answer, or any other offense disclosed by the testimony, whether it be the offense charged in the complaint on which the examination was held or not. If the county attorney fails to file the information within the time specified, he shall be deemed guilty of contempt, and may be prosecuted for neglect of duty as in other cases.

Cal. Pen. C. 809; Mont. Pen. C. 1730*. Information defined, 4606. Form and sufficiency of information, 22 4728-4755. Prosecution by

information after examination and commitment or after waiver, Con. art. 1, sec. 13. Dismissal for failure to file information, 5065.

4693. When information not filed by county attorney. Effect. Amended If the county attorney determines that an information ought not to be filed in any

Chap 6

1499

such case, he must make, subscribe, and file with the clerk of the district court of

the county a statement in writing setting forth his reasons in fact and in law for

not filing such information, and such statement must be filed during the term of the court at which the defendant is held to appear for trial. The court must thereupon examine such statement, together with the evidence filed in the case, and if upon such examination the court is not satisfied with such statement, the county attorney must be directed and required by the court to file the proper information and bring the case to trial. But if the court does not require that an information be filed, and the defendant is not held or wanted to answer for any other public offense, he shall be discharged, his bail exonerated, and his money refunded to him.

Mont. Pen. C. 2 1732*; N. Dak. (1895) ? 7984*.

Dismissal of action, 22 5065-5070.

4694. Information may be amended. When discretionary. Delay. An information may be amended in matter of substance or form at any time before the defendant pleads, without leave of court. The information may be amended at any time thereafter and on the trial as to all matters of form, at the discretion of the court, where the same can be done without prejudice to the rights

of the defendant. No amendment must cause any delay of the trial unless for good cause shown by affidavit.

Mont. Pen. C. 1733.

Filing new information, ? 4775.

4695. Information to recite commitment. Names of witnesses. An information must recite the fact of the commitment or binding over of the defendant by a magistrate, and the names of the witnesses testifying for the state on such examination must be indorsed thereon.

Mont. Pen. C. ? 1734*.

Must be signed by county attorney or deputy, or by attorney pro tem., ?? 4606, 4771.

CHAPTER 19.

FORMATION OF THE GRAND JURY.

4696. Drawing of grand jury discretionary with judge. A grand jury shall be drawn or summoned only when, in the opinion of the judge of the district court of the county, public interest demands it.

Mont. Pen. C. ? 1750*.

Authorized by Con. art. 1, sec. 13.

4697. To consist of seven male citizens. Five a quorum. A grand jury must consist of seven eligible male citizens of the United States, selected, summoned, and impaneled, as provided by law, five of whom may constitute a quorum to do business. [C. L. §§ 3063*, 4897*.

Concurrence of at least five grand jurors necessary, 4723. Selecting, summoning, and drawing, 1291-1319. The constitution, art. 1, sec. 13, says: 'five of whom must concur to find an indictment." Fees of grand jurors, 991-997.

Where members of grand jury were not duly qualified or sworn, conviction on indictment found by them will be reversed. Territory v. Woolsey, 3 U. 470; 24 P. 765.

4698. State or defendant may challenge. The state, or a person whose case will come before a grand jury, may challenge the panel of a grand jury or an individual juror. [C. L. § 4898*.

Cal. Pen. C. 894*.

4699. Challenge to panel. Grounds. A challenge to the panel may be interposed for one or more of the following causes only: that the grand jurors were not selected, drawn, or summoned according to law. [C. L. § 4899*. Cal. Pen. C. ? 895*.

4700. Id. To individual juror. Grounds. A challenge to an individual grand juror may be interposed for one or more of the following causes only: That he is not an eligible juror as provided by law.

1.

2. That he is prosecutor upon a charge against the defendant.

3.

That he is a witness on the part of the prosecution, and has been served with process or bound by an undertaking as such.

4.

That he has formed or expressed an unqualified opinion or belief that the defendant is guilty or not guilty of the offense charged; but a hypothetical opinion, founded on hearsay or information supposed to be true, unaccompanied with malice or ill-will, shall not disqualify a juror or be a cause of challenge. [C. L. § 4900.

Cal. Pen. C. 2 896*.

A person having conscientious scruples against indicting a person for polygamy, or who believes it right for a man to have more than one living and undivorced wife at the same time, is wholly incom

petent to serve as a grand juror in the investigation of such a charge. U. S. v. Reynolds, 1 U. 226. Affirmed, 98 U. S. 145. U. S. v. Clawson, 4 U. 34; 5 P. 689. Affirmed, 114 U. S. 477.

4701. Challenge may be oral or written. The challenges mentioned in the last three sections may be oral or in writing and must be tried by the court. [C. L. § 4901.

Cal. Pen. C. 897.