Hatch

The defendant was charged by indictment under section 506 of the Penal Code with having embezzled on the seventeenth day of February, 1908, the sum of $37,075.42 of the money of Sarah E. Sage, intrusted to him and in his control and custody as the agent, attorney and trustee of said Sarah E. Sage. He was found guilty as charged, and made a motion for a new trial, which was denied, and judgment pronounced. From the judgment and order denying his motion for a new trial he in due time appealed to this court.

Defendant at the proper time made a motion to set aside the indictment on various grounds specified in the motion. The motion was denied, and the proceedings thereon are set forth in the bill of exceptions.

The grounds upon which an indictment may be set aside are "set forth in section 995 of the Penal Code, which is as follows:

“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…