shown by the oath of any one, nor did the deposition show that it had been read over to the witness, and that he signed it after acknowl

870. Deposition, by whom and how kept.

edging it to be correct; nor was it certified by the officer before whom it was taken. It was therefore inadmissible.

SEC. 870. The magistrate or his clerk must keep the depositions taken on the information or on the examination until they are 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, district attorney, or other prosecuting attorney, and the defendant and his counsel.

"One of the objects of this section is to keep the evidence from publication when the examination has been secret, and thus to prevent, to as great an extent as possible, the

formation of a public opinion that will render the selection of a jury matter of difficulty:" Commissioners' note.

871. Defendant, when and how discharged.

SEC. 871. If, after hearing the proofs, it appears either that 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 depositions and statement, signed by him, to the following effect: "There being no sufficient cause to believe the withinnamed A B guilty of the offense within mentioned, I order him to be discharged."

Order of discharge. The statute contemplates that the order of discharge shall be reduced to writing: Ex parte Branigan, 19 Cal. 137.

872. When and how to be committed for public offense.

SEC. 872. If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must make or indorse on the deposition an order, signed by him, to the following effect: It appearing to me that the offense in the within depositions mentioned (or any offense according to the facts, 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, and committed to the sheriff of the county of [Amendment, approved April 15, 1880; Amendments 1880, 37 (Ban. ed. 210); took effect immediately.]

Commitment. The statute contemplates that it shall be in writing: Ex parte Branigan, 19 Cal. 137; Kalloch v. Superior Court, 56 Id. 229. The omission to state the name of the person alleged to have been murdered in a commitment holding a person to answer upon a charge of murder renders it defective, but not so as to entitle the accused to his discharge on habeas corpus: Ex parte Bull, 42 Id. 196. The questions whether an order holding the accused to answer is erroneous, or was irregularly entered, cannot be considered on an application for the discharge of the accused on habeas corpus: Ex parte McCullough, 35 Id. 100; Ex partê Bull, 42

873. Order for commitment.

Id. 196; Ex parte Granice, 51 Id. 375. If an order of commitment is sufficient in substance, it will be held good on habeas corpus: People v. Smith, 1 Id. 9; see Ex parte Cahill, 52 Id. 463, and sec. 858, note.

Where there is no deposition the indorsement here required may be made upon the complaint: People v. Smith, 59 Cal. 365; People v. Young, 64 Id. 212. And the indorsement upon the depositions taken on the examina tion, and not upon the depositions accompa nying the information, is sufficient: People v. Hardisson, 61 Id. 378.

SEC. 873. If the offense is not bailable, the following words must be added to the indorsement: "And he is hereby committed to the sheriff of the county of ——."

Offense bailable: See sec. 1284. note; People v. Geiger, 49 Cal. 651.

874. Certificate of bail being taken.

Section 874, relating to a certificate of bail 1880; Amendments 1880, 37 (Ban. ed. 211); being taken, was repealed by act of April 15, took effect immediately.

875. Order for bail on commitment.

SEO. 875. If the offense is bailable, and the defendant is admitted to bail, the following words must be added to the order: "and that he be admitted to bail in the sum of dollars, and is committed to the sheriff of the county of [Amendment, approved April 15, 1880; Amend

until he gives such bail. ments 1880, 37 (Ban. ed. 211); took effect immediately.]

Bail generally: See secs. 1268 et seq.

876. Commitment, how made and to whom delivered.

SEC. 876. If the magistrate order the defendant to be committed, he must make out a commitment, signed by him, 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 deliver the defendant into the proper custody, together with the commitment.

Form of commitment: Sec. 877, note. The order of commitment should state with reasonable certainty the nature, time, and

877. Form of commitment.

place of the offense: Ex parte Bull, 42 Cal. 196; Ex parte Branigan, 19 Id. 133.

SEC. 877. The commitment must be to the following effect:

The people of the state of California to the sheriff of the county of

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 this

878. Undertaking of witnesses to appear, when and how taken.

SEO. 878. On holding the defendant to answer, the magistrate may take from each of the material witnesses examined before him on the part of the people a written undertaking, to the effect that he will appear and testify at the court to which the depositions and statements are to be sent, or that he will forfeit the sum of five hundred dollars.

Undertaking to appear can be exacted from those witnesses only who were examined before the magistrate: Ex parte Shaw, 61 Cal. 58.

879. Security for the appearance of witnesses, when and how required.

SEC. 879. When the magistrate or a judge of the court in which the action is pending is 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 preceding section.

880. Infants and married women may be required to give security.

SEC. 880. Infants and married women, who are material witnesses as against the defendant, may be required to procure sureties for their appearance, as provided in the last section.

881. Witnesses to be committed on refusal to give security for their appearance.

SEC. 881. 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.

882. Witness unable to give security may be conditionally examined.

SEC. 882. When, however, it satisfactorily appears 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 people. 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 thereupon be discharged; but this section does not apply to an accomplice in the commission of the offense charged. [Amendment, approved March 14, 1878; Amendments 1877-8, 122; took effect from passage.] Constitutional provision.-The constitu- criminal case is required to enter into an untion provides that the legislature shall have dertaking with sureties, to appear and testify, power to provide for the taking, in the pres- and is committed for failure to comply, and it ence of the party accused and his counsel, of appears that he is unable to procure sureties, depositions of witnesses in criminal cases, other he may be discharged and his deposition may than cases of homicide, when there is reason be forthwith taken on behalf of the people: to believe that the witness, from inability or People v. Lee, 49 Cal. 37. other cause, will not attend at the trial:" Sec. 13, art. 1.

Deposition of witness in a criminal case. When a witness for the people in a

Strict compliance with this section is necessary to render admissible against the ac cused a deposition taken under it: People v Mitchell, 64 Cal. 85.

883. Magistrate to return depositions, etc., to the court.

SEC. 883. When a magistrate has discharged a defendant, or has 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 depositions, and all undertakings of bail, or for the appearance of witnesses, taken by him.

PRELIMINARY PROVISIONS.

888. What prosecutions must be by indictment.

SEC. 888. All public offenses triable in the superior courts must be prosecuted by indictment or information, except as provided in the next section. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 157); took effect immediately.]

Indictment for misdemeanor.-Nothing in the constitution of this state, or in this code, prohibits a prosecution by indictment of any criminal offense, including a misdemeanor: Ex parte McCarthy, 53 Cal. 412.

Homicides committed before the new constitution went into effect may be prosecuted by information: See People v. Campbell, 59 Cal. 243. Compare this case with People v. Tisdale, 57 Id. 101; People v. Carlton, Id. 559.

889. What by accusation or information.

SEC. 889. When the proceedings are had for the removal of district, county, municipal, or township officers, they may be commenced by an accusation or information, in writing, as provided in sections seven hundred and fifty-eight and seven hundred and seventy-two.

890. Indictments, informations, and accusations, in what court found.

SEC. 890. All accusations, informations, or indictments against district, county, municipal, and township officers must be found or filed in the superior court. [Amendment, approved April 12, 1880; Amendments 1880, 34 (Ban. ed. 200); took effect immediately.]

CHAPTER II.

FORMATION OF THE GRAND JURY.

894. Who may challenge the panel or an individual juror.

SEC. 894. The people, or a person held to answer a charge for a public offense, may challenge the panel of a grand jury, or an individual juror. Challenge to the panel: Sec. 895, note.

Challenge to individual grand juror: Sec. 896, note.

895. Cause of challenge to a panel.

SEC. 895. A challenge to the panel may be interposed for one or more of the following causes only:

1. That the requisite number of ballots was not drawn from the jury-box of the county;

2. That notice of the drawing of the grand jury was not given;

3. That the drawing was not had in the presence of the officers designated by law.

Challenge to panel.-The grounds enumerated in this section are the only ones upon which a challenge to the panel of the grand jury can be made. The designation of these grounds, ex industria, excludes all others: People v. Southwell, 46 Cal. 141; People v. Colby, 54 Id. 37; People v. Hunter, Id. 65. A challenge to the panel must be interposed before the grand jury is made up and sworn, provided the defendant has, prior to that time, been held to answer: People v. Freeland, 6 Id. 96; People v. Roberts, Id. 214; People v. Beatty, 14 Id. 566; People v. Moice, 15 Id. 329; People v. Arnold, Id. 476; People v. Colmere, 23 İd. 631; People v. Henderson, 28 Id. 465. So a person who is under arrest at the time the grand jury is impaneled, although he may not have been held to answer, must, if an opportunity is given to him, exercise his right of challenge at that time or he will be precluded from so doing after he is indicted: People v. Geiger, 49 Id. 643. An indictment found against a person who is refused the privilege of

896. Challenge to grand juror.

challenging the grand jury is invalid and worthless; but to have this effect, the prisoner must have applied for leave or requested permission to appear and challenge the jury: People v. Romero, 18 Id. 89, 94. A defendant who has not been held to answer before the grand jury is made up and sworn may challenge the panel on his arraignment: People v. Beatty, 14 Id. 566. He may also, on motion, have the indictment found against him set aside if it appears that at the time the grand jury was impaneled he had a good ground of challenge to the panel, or to an individual grand juror: Sec. 995; People v. Colmere, 23 Id. 631; People v. Turner, 39 Id. 370. It is no objection to the panel of the grand jury that it was summoned by special order of the court: People v. Cuintano, 15 Id. 327. Unless the contrary appear, it will be presumed that certain persons who had been drawn as grand jurors and excused by the court were legally excused: People v. Millsaps, 35 Id. 47.

SEC. 896. A challenge to an individual grand juror may be interposed for one or more of the following causes only:

1. That he is a minor;

2. That he is an alien;

3. That he is insane;

4. That he is a prosecutor upon a charge against the defendant;

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

6. That a state of mind exists on his part in reference to the case, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury founded upon public rumor, statements in public journals, or common notoriety, provided it satisfactorily appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters to be submitted to him. [Amendment, approved March 30, 1874; Amendments 1873-4, 436; took effect July 1, 1874.]

Challenge to individual grand juror.-A challenge to any particular individual sitting as a member of the grand jury must, the same as a challenge to the panel, be interposed before the grand jury is sworn, provided that prior to that time the defendant has been held to answer: People v. Moice, 15 Cal. 329; People v. Hidden, 32 Id. 445. But if he has not been so held, he may, by motion to set aside the indictment, take advantage of any ground of challenge that he may have had to an individual grand juror at the time the grand jury was impaneled.

Challenge to the panel: Sec. 895, note. Setting aside indictment or information: Sec. 995, and notes.

Subd. 6. Partiality.-Challenges properly denied: See People v. Gray, 61 Cal. 164.

The code examiners say of the amendment, which was adopted at their suggestion: "This section is amended so as to omit as a ground of challenge the fact the juror has formed or expressed an unqualified opinion. Under the sixth subdivision the parties can inquire as to the opinions formed or expressed by the juror, and if they are such as to convince the judge that the juror is not impartial the challenge should be allowed. A provision has also been added, to the effect that opinions formed from public rumor or newspapers shall not disqualify. The other changes proposed consist chiefly in doing away with the triers,' and in making the ruling of the court upon the qualifications of grand jurors final."

897. Manner of taking and trying challenge.

SEC. 897. The challenges mentioned in the last three sections may be oral or in writing, and must be tried by the court. [Amendment, approved March 30, 1874; Amendments 1873-4, 436; took effect July 1, 1874.]

898. Decision upon challenges.

SEC. 898. The court must allow or disallow the challenge, and the clerk must enter its decisions upon the minutes.

899. Effect of allowing a challenge to a panel.

SEC. 899. If a challenge to the panel is allowed, the grand jury are prohibited from inquiring into the charge against the defendant, by whom the challenge was interposed. If, notwithstanding, they do so, and find an indictment against him, the court must direct it to be set aside.

900. Effect of allowing challenge to an individual juror.

SEO. 900. If a challenge to an individual grand juror is allowed, he cannot be present or take part in the consideration of the charge against the defendant who interposed the challenge, or the deliberations of the grand jury thereon. The grand jury must inform the court of a violation of this section, and it is punishable by the court as a contempt.

Grand juror to whom challenge has been allowed-Effect of being in court when in. dictment is presented.-An indictment is not vitiated because one of the grand jurors who

has been challenged and excluded from the deliberations of the case appears in court with the other jurors when the indictment is presented: People v. Gatewood, 20 Cal. 146.

901. Objections can only be taken by challenge.

SEO. 901. A person held to answer to a charge for a public offense can take advantage of any objection to the panel or to an individual grand juror in no other mode than by challenge.