THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW CRIMINAL LAW AND PROCEDURE OF CALIFORNIA INCLUDING THE PENAL CODE OF CALIFORNIA BY CHARLES H. FAIRALL OF THE STOCKTON BAR LOS ANGELES, CAL. CHAS. W. PALM CO. 1902 T F COPYRIGHT t902 BY CHARLES H. FAIRALL /o PREFACE. This book is not intended to cover the general field of criminal law and procedure, but rather to put before the public in a concise and convenient form the law of this state relating to crimes. With this end in view every criminal case decided by the Supreme Court of California to the present time has been examined carefully. It is intended to make forms for indictment and instructions a prominent feature. And many which have received the sanction of our Supreme Court are to be found herein. Considerable attention also has been devoted to examinations and commitments by magistrates. The Penal Code as now in force has been included with citations supplied by the publishers. Stockton, March 9, 1902. CHARLES H. FAIRALL. CONTENTS. Page CHAPTER I. Crimes and public offenses 33 CHAPTER II. Jurisdiction 44 CHAPTER III. Constitutional rights of the defendant.... 52 CHAPTER IV. Abduction 71 CHAPTER V. Abortion 74 CHAPTER VI. Adultery 76 CHAPTER VII. Arson 78 CHAPTER VIII. Assault 84 CHAPTER IX. Bigamy 94 CHAPTER X. Bribery 97 CHAPTER XI. Burglary 101 CHAPTER XII. Compounding crimes 107 CHAPTER XIII. Conspiracy 109 CHAPTER XIV. Contempt Ill CHAPTER XV. Crime against nature 118 CHAPTER XVI. Defrauding inn keepers 119 CHAPTER XVII. Disturbance of the peace 121 CHAPTER XVIII. Election law, crimes against 123 CHAPTER XIX. Embezzlement 131 CHAPTER XX. Escapes 140 CHAPTER XXI. Extortion , 143 CHAPTER XXII. False entry in books of corporation 146 CHAPTER XXIII. False imprisonment 148 CHAPTER XXIV. False personation 149 CHAPTER XXV. False pretenses 151 CHAPTER XXVI. Forgery 15& CHAPTER XXVII. Fraudulently taking water from main. 167 CHAPTER XXVIII. Gaming 168- CHAPTER XXIX. Game laws 171 CHAPTER XXX. Homicide 173 CHAPTER XXXI. Incest 210 CHAPTER XXXII. Kidnapping 212 CHAPTER XXXIII. Larceny 215- CHAPTER XXXIV. Libel 22& CHAPTER XXXV. Liquors, selling to Indians 231 8 CONTENTS. CHAPTER XXXVI. Mayhem 233 CHAPTER XXXVII. Medicine . 235 CHAPTER XXXVIII. Misdemeanor in office 237 CHAPTER XXXIX. Perjury 239 CHAPTER XL. Pollution of wat p 248 CHAPTER XLI. Rape 249 CHAPTER XLII. Receiving stolen goods 257 CHAPTER XLIII. Resistance of public officers 261 CHAPTER XLIV. Robbery 263 CHAPTER XLV. Seduction 268 CHAPTER XLVI. Selling land twice 272 CHAPTER XLVII. Sepulcher, violation of 273 CHAPTER XLVIII. Throwing vitriol 275 CHAPTER XLIX. Train wrecking 276 CHAPTER L. Trespassing 277 CHAPTER LI. Vagrancy 279 CHAPTER LII. Modes of prosecuting crime 282 CHAPTER LIII, The pleadings 300 CHAPTER LIV. The arraignment 313 CHAPTER LV. Continuances 321 CHAPTER LVI. Change of venue 325 CHAPTER LVII. The jury 329 CHAPTER LVIII. Witnesses 346 CHAPTER LIX. Evidence 361 CHAPTER LX. Instructions 400 CHAPTER LXI. Receiving the verdict 439 CHAPTER LXH. Sentence and judgment 445 CHAPTER LIX. Duties of counsel and the court 393 CHAPTER LXIII. New trial 454 CHAPTER LXIV. Appeal 460 CHAPTER LXV. Habeas corpus 478 CHAPTER LXVI. Extradition 484 Penal Code . 487 FORMS. Abduction 73 minor female for prostitution 73 Abortion, for procuring 75 submitting to 75 Adultery 76 where both married 77 Arson 82 inhabited building 82 to defraud insurer 83 Assault with deadly weapon 89 simple 89 to murder 93 Bigamy 96 Bribery, juror asking for 99 of executive officer 100 of judicial officer . 100 Burglary 106 Compounding crimes 108 Conspiracy to commit crime 110 to falsely charge with crime 110 Crime against nature, upon a human being 118 upon an animal 118 Defrauding inkeepers, generally 119 by false pretenses 119 by absconding 120 Disturbance of the peace of the neighborhood 121 of the peace by vulgar language in the presence of children 122 of persons 122 by exhibiting deadly weapon 122 by using deadly weapon 122 by riot 122 Election laws, fraudulent registration 124 voting twice 124 fraudulent voting 125 10 CRIMINAL LAW AND PROCEDURE. altering election returns 125 changing ballots 127 neglect of duty 128, 129 interfering with election officers 128 wrongfully counting votes 129 unlawfully acting as officer 130 Embezzlement by clerk or servant 136 by trustee 136 by officer of corporation 137 by public officer 137 by bailee 139 Escapes 140 conveying instruments to prisoners 141 injury to public jails 142 Extortion by threatening letter 144 generally 145 by officer 145 False entry, in books of corporation 147 omission to make entry 147 False imprisonment 148 False personation, marry in assumed name 149 of bail 150 in acknowledging a deed 150 obtaining property by 150 False pretenses, obtaining money by 157 Forgery generally 164 offering for record 165 passing counterfeit coin 165 possession of counterfeit coin 165 fraudulent possession of unfinished bank bills 166 possession of counterfeiting dies 166 Fraudulently taking water from main 167 Gaming, conducting prohibited game 170 conducting banking game 170 Game law, killing and possessing game 171 destroying eggs or nests 171 killing birds , 171 possessing birds , 171 possessing or selling game 172 possessing shot gun of unlawful calibre 172 dynamiting fish , 172 Murder 209 Incest , , 211 Kidnapping, generally 213 taking out of county 213 child stealing 214 FORMS. 11 Larceny, generally 226 petit and prior conviction 226 conversion of real estate 227 Libel 230 Liquor, selling to Indians 232 Mayhem generally 234 assault to commit 234 Medicine, unlawfully practicing . . . . '. 236 Perjury 245 subornation 246 Polution of water 248 Rape by force 256 under age of consent 256 assault to commit 256 Receiving stolen goods 260 Resistance of officer 262 Robbery 266 Seduction under promise of marriage 271 enticing female into house of ill fame 271 Selling land twice 272 Sepulcher, violation of by disinterment 273 oy defacing monument 273 injuring shrubbery 273 defacing fence 274 Throwing vitriol 275 Train wrecking 277 Trespassing, injuring timber 278 by severing from freehold 278 Vagrancy, refusing to labor 280 healthy beggar 280 roaming about 280 known criminal 280 associate of known thieves 280 lodger in outhouses 281 living in house of ill fame 281 capper for attorney 281 prostitute and drunkard 281 Complaint before magistrate 288 Warrant of arrest 290 Commitment for examination 292 Order of commitment 293 Order of discharge 293 Order admitting to bail 293 Commitment 294 TABLE OK CASKS CITED. Adams v. Haskell, 6 Cal. 316 115 Anschlag v. Superior Court, 76 Cal. 513 467 Arnold v. Skaggs, 35 Cal. 688... 455 Barry v. Superior Court, 91 Cal. 486 113 Batchelder v. Moore, 42 Cal. 415 115 Bates v. Tower, 103 Cal. 406. . . 476 Benton v. Budd, 120 Cal. 332... 398 Brown v. Campbell, 110 Cal. 648 50 Bmner v. Superior Court, 92 Cal. 239 55, 297, 299, 330, 331 Brumley v. Flint, 87 Cal. 474... 475 Buck v. Eureka, 109 Cal. 513 48 Burbank v. Dennis, 101 Cal. 104. 387 Carpenter v. Ewing, 76 Cal. 488. 470 Clifford v. State, 58 Wis. 478... 432 Commonwealth T. Webster, 5 Cushing 320 422, 428 Cosby v. Superior Court, 110 Cal. 45 113, 116 Crew v. Pratt, 119 Cal. 149 48 Dailey v. Superior Court, 112 Cal. 94 112, 113 Deering v. Richardson, Kimball Co., 109 Cal. 83 113 Dennison v. Chapman, 105 Cal. 447 411 De Pedrorena v. Superior Court, 80 Cal. 146 481 Dewey v. Superior Court, 81 Cal. 64 116 Erwin v. State, 29 Cal. Ohio St. 186 432 Estate of Wax, 106 Cal. 347.... 477 Ex parte Abbott, 94 Cal. 333 115 Acock, 84 Cal. 50 112, 113, 116, 478, 481 Ah Cha, 40 Cal. 426 93, 446, 450, 481 Ah Fook, 49 Cal. 402 59 Ahern, 103 Cal. 414 448, 481 Ah Men, 77 Cal. 198 Ill, 114, 116, 478, 481 Ah Sam, 83 Cal. 620 479 Ah Sins?. 87 Cal. 423 50 Ah Yem, 53 Cal. 246 364 Anear, 114 Cal. 370 171 Arras, 78 Cal. 306 449,450 Azhclerian, 123 Cal. 512 69 Baker, 88 Cal. 84 284, 285, 314 Baldwin, 60 Cal. 432 449, 450 Barry, 85 Cal. 605 112 Becker, 86 Cal. 492 284 Becknell, 119 Cal. 496 55, 450 Bernert, 62 Cal. 524 169, 388, 447, 471 Bird, 19 Cal. 130 478 Booker, 51 Cal. 317 482 Bowen, 46 Cal. 113 479 Branigan. 19 Cal. 133 284, 448 Brown, 68 Cal. 176 66, 68, 69, 443, 445 Brown, 97 Cal. 83 114, 116 Buckley. 105 Cal. 123 483 Bulger, 60 Cal. 438 480 Bull. 42 Cal. 196 470, 481 Cahill, 52 Cal. 463 62 Ex parte Carpenter, 64 Cal. 263 240 Casey, 71 Cal. 269 lia Casey, 85 Cal. 36 449 Chin Yan. 60 Cal. 78 448 Clancey, 90 Cal. 556 116 Clark, 85 Cal. 203 48 Clark, 103 Cal. 352 113 Clark, 110 Cal. 405 113, 479 Clarke, 54 Cal. 415 62, 296, 315 Clarke, 126 Cal. 235 114, 116 Cohen, 5 Cal. 495 116 Cohen, 6 Cal. 318 113, 116 Cohen, 104 Cal. 530 113 Cohn, 55 Cal. 193 112, 478, 479 Cook, 35 Cal. 107 67 Cottrell, 59 Cal. 417. .112, 479, 483 Crandall, 2 Cal. 144 481 Crittenden, 62 Cal. 534 115 Cubreth, 49 Cal. 436 485 Curtis, 92 Cal. 188 67, 482 Dalton, 49 Cal. 463 452 Dinning, 74 Cal. 164 282, 283 Dobson, 31 Cal. 498 447, 448 Donahue, 65 Cal. 474... 88, 442, 446 Duncan, 53 Cal. 411 388, 482 Duncan, 54 Cal. 78 68, 482 Edgar, 119 Cal. 123 464, 482 Ellis, 11 Cal. 223 482 Ellis, 54 Cal. 206 448, 450 Erdmann, 88 Cal. 579 449 Estrado, 88 Cal. 316 73, 197, 284, 481 Fenton, 77 Cal. 183 61 Field, 1 Cal. 187 115 Fil Ki, 79 Cal. 584 478 Finley, 66 Cal. 262 158, 159, 160 Flood, 64 Cal. 251 450 Foley, 62 Cal. 509 122, 478 Foss, 102 Cal. 347 315, 484 Fredericks, 104 Cal. 400 451, 469 Gallagher. 101 Cal. 113 480 Giambonini, 117 Cal. 573 48, 286 Gibson, 31 Cal. 620 446, 479, 481 Gilmore, 71 Cal. 624 448 Gordon, 92 Cal. 478 113, 116 Gordon, 95 Cal. 378 112 Gould, 99 Cal. 360.... Ill, 113, 115 Granice, 51 Cal. 375 478, 480 Green, 86 Cal. 426 451 Guiterrez, 45 Cal. 429 59 Habling, 66 Cal. 215 167 Halsted, 89 Cal. 471 449 Harrison, 63 Cal. 300.170. 448, 450 Harrold, 47 Cal. 129 238 Hartman, 44 Cal. 32 60. 458, 478, 470 Raymond. 91 Cal. 545 299 Hedley, 31 Cal. 108 45, 133, 134 Heushaw, 73 Cal. 486 Ill, 114, 115, 448, 478 Hoge, 48 Cal. 5 68 Hollis, 59 Cal. 405 Ill, 112, 113, 115, 116, 478, 480 Hong Shen, 98 Cal. 681 61 Hope, 59 Cal. 423 106 Hung Sin. 54 Cal. 102 67 Jaynes, 70 Cal. 638 112 Jones, 41 Cal. 209 478- CRIMINAL LAW AND PROCEDURE. Ex parte Jones, 103 Cal. 397 113 Kearny, 55 Cal. 212 48, 304, 478 Keeney, 84 Cal. 304 480 Kell, 85 Cal. 309.212, 288, 480, 481 Kellogg, 64 Cal. 343 112 Kelly, 28 Cal. 415 450 Kelly, 65 Cal. 154 446, 449 Kelly, 120 Cal. 273 479 Klrhy, 76 Cal. 514 451 Latlmer, 47 Cal. 131 115 Lawrence, 60 Cal. 84 448 Lawrence, 116 Cal. 298 117 Le Bur, 49 Cal. 159 482 Lehmkuhl, 72 Cal. 54 479 Lewis, 79 Cal. 96 485 Long, 114 Cal. 161 478,479 Magulre, 57 Cal. 609 478 Maler, 103 Cal. 476 171, 478 Marks. 49 Cal. 680 69 Max, 44 Cal. 581 93, 446, 479 McCarthy, 29 Cal. 396 117 McCarthy, 72 Cal. 386 307 McCullough, 35 Cal. 101 478, 479 McLaughlln, 41 Cal. 211 60, 61, 478, 479 McNulty, 77 Cal. 168.. 33, 478, 479 Miller, 82 Cal. 454 448, 449, 478, 480 Mlrande, 73 Cal. 365 478, 479 Mitchell. 70 Cal. 1.89, 93, 449, 480 Moan, 65 Cal. 219 287, 296, 314, 448 Moon Fook, 72 Cal. 10 451 Morrison, 88 Cal. 113 481 Morton, 132 Cal. 346 451 Murray, 43 Cal. 455 446, 480 Neustadt, 82 Cal. 274 49, 449 Nicholas. 91 Cal. 643.. 285, 288, 483 Noble, 96 Cal. 362 49, 449, 450, 478, 479 Orford, 102 Cal. 656 114 Overend, 122 Cal. 201 115 Palmer, 86 Cal. 631 134, 479 Perkins, 18 Cal. 60 112, 478 Peterson, 119 Cal. 678 172, 304 Queirolo. 119 Cal. 636 114 Raye. 63 Cal. 492 447, 451, 479 Rickert. 126 Cal. 244 114 Rosenblat, 51 Cal. 285 483 Rosenheim, 83 Cal. 388.... 449, 479 Ross, 82 Cal. 108 53 Rowe, 7 Cal. 176 114, 115, 116, 354, 480 Ruffia, 119 Cal. 487 119 Ryan. 44 Cal. 533 68, 388 Schmidt. 71 Cal. 212 296, 314 Shaw, 61 Cal. 58 359 Silvia. 123 Cal. 293 116 Sing Ah Tong, 84 Cal. 165 449 Smallman, 54 Cal. 36 68 Smith, 38 Cal. 710 231 Smith, 53 Cal. 204 112 Smith, 89 Cal. 79 68, 69, 479 Sontag. 64 Cal. 525 296 Soto. 88 Cal. 624 449 Spears, 88 Cal. 642 283, 481, 485 Spencer, 83 Cal. 465 112 Stephen, 114 Cal. 278. .50, 479, 481 Sternes, 77 Cal. 156 114, 478, 479, 481, 485 Sternes. 82 Cal. 245 212, 483 Stlce, 70 Cal. 53 115, 355 Strange, 59 Cal. 416 66 Sylvester. 81 Cal. 199 478 Taylor, 87 Cal. 91 480 Ex parte The Queen of the Bay, 1 Cal. 157 481 Thomas, 103 Cal. 497 76 Tinkham, 54 Cal. 201 480 Turner, 75 Cal. 228. . .447, 479, 481 Turner, 112 Cal. 629 68, 69 Vance, 88 Cal. 281 116 Vance, 90 Cal. 208 450 Voll, 41 Cal. 31 68 Wadlelgh, 82 Cal. 518.449, 450, 452 Wallingford, 60 Cal. 103 49 Walpole, 84 Cal. 584 483 Walpole, 85 Cal. 362. .284, 285, 479 Walsh, 39 Cal. 705 283 White, 49 Cal. 433 485 Whitty, 65 Cal. 168 469 Williams, 87 Cal. 78 479 Williams, 89 Cal. 421.441, 447, 453 Williams, 116 Cal. 512 285 Williams, 121 Cal. 329 119, 478, 479 Wolff, 57 Cal. 94 67, 177, 178, 179, 428 Wong You Ting, 106 Cal. 296. . 55, 480 Wright, 119 Cal. 401 325 Young Ah Gow, 73 Cal. 438. . . 319, 440, 447, 453, 479 Zeehandelaar. 71 Cal. 238. .114, 355 Palltrick v. Sullivan, 119 Cal. 616 50. 294 Faulkner v. Rondoni, 104 Cal. 148 353 Fitch v. Board of Supervisors, 122 Cal. 285... 238, 288 Foley v. Foley, 120 Cal. 39 113 Foster v. Superior Court, 115 Cal. 279 114 Frazer v. Superior Court, 62 Cal. 50 467 Gaffori v. Bush, 60 Cal. 153.... 49 Gilleland v. State, 44 Texas 356 432 Grady v. Superior Court, 64 Cal. 155 115, 116 Green v. Superior Court, 78 Cal. 556 33, 49 Hennessy v. Nlchol, 105 Cal. 142 112 Hinckley v. Ayres, 105 Cal. 360 95 'Huerstal v. Mulr, 62 Cal. 481 112, 116, 480 Hunter v. Hunter, 111 Cal. 261 66, 95 Hurtado v. California, 110 U. S. 516 59, 282 Adams, 81 Cal. 163 468 Ambrosewf, 109 Cal. 266 449 Barry, 94 Cal. 563 113 Begerow, 133 Cal. 343 54 Brown, 32 Cal. 49 206, 448, 481 Buckley, 69 Cal. 3 115 Calkins, 112 Cal. 296 414 Clarke, 125 Cal. 389... 113, 115, 481 Cohen, 5 Cal. 45 111,116 Oorryell, 22 Cal. 178 478 Curtis, 108 Cal. 661 237, 238 Ebanks, 84 Fed. Rep. 313 482 Fife. 110 Cal. 9 55,480 Fll Kl. 80 Cal. 201 ...Ill, 449 Foote, 76 Cal. 543 114 Gannon, 69 Cal. 541 .., 50. 112, 292, 297, 298, 314 Grosbois, 109 Cal. 445 49, 295, 480 Guerrero, 69 Cal. 102 327 TABLE OF CODES. 15 Howell, 114 Cal. 230 241, 483 Jessup, 81 Cal. 482 Ill Jones, 103 Cal. 397 286,327 Kennedy, 104 Cal. 429 354 Kowalsky, 73 Cal. 122 230, 478, 480 Kurtz, 68 Cal. 412 49 Levlnson, 108 Cal. 459 60 Lowenthal, 74 Cal. 109 112 Marks, 45 Cal. 199 49, 237 Mltchell, 120 Cal. 384 283 Mulholland, 97 Cal. 529 449 Perkins, 2 Cal. 424 4S2 Ring, 28 Cal. 248 447, 448, 481, 482 Robh, 64 Cal. 431 485 Rogers, 129 Cal. 468 115, 355 Romaiue, 23 Cal. 591 483 Troia, 64 Cal. 152 67 Tyler, 64 Cal. 434 112, 115 Vance, 88 Cal. 262 1!6 Williams, 82 Cal. 183. .68, 388, 482 January v. Superior Court, 73 Cal. 540 467 Johnson v. Superior Court, 63 Cal. 578 112 Johnson v. Visher, 96 Cal. 314. . 445 Jones v. Jones, 71 Cal. 89 216 Kalloch v. Superior Court, 56 Cal. 229.. 59, 62, 282, 283. 287, 296 Kilburn v. Law, 111 Cal. 237 238 Kuhlman v. Superior Court, 122 Cal. 636 112 Latham v. Blake, 77 Cal. 649 481 Levy v. Wilson. 69 Cal. 111.298. 331 Llm Tai v. Hewill, 56 Cal. 118 408, 466 Mansir v. Superior Court, 65 Cal. 582 67 Mark v. Superior Court, 129 Cal. 1 114 McCauley v. Weller, 12 Cal. 524 286 McClatctiy v. Superior Court, 119 Cal. 413 111. 112, 113 Morley v. Elkins, 37 Cal. 457. . . 464 Morton v. Broderick, 118 Cal. 474, 483 238 O'Callaghan v. Bode, 84 Cal. 498 469 Overend v. Superior Court, 131 Cal. 280 114, 355, 446 Page v. Superior Court, 122 Cal. 209 467 Patterson v. Conlan, 123 Cal. 453 62, 286, 315 People v. Abbott, 53 Cal. 284 218 Abbott, 101 Cal. 645 '221, 265, 395, 397 Acosta, 10 Cal. 196 472 Adams, 85 Cal. 231 183. 189, 291, 412 Ah Bean, 77 Cal. 12 244 Ah Chung, 54 Cal. 398 314. 340, 362, 412 Ah Cow, 17 Cal. 102 302 Ah Dat, 49 Cal. 652 200 Ah Fat, 48 Cal. 61.42, 173, 322, 351 Ah Fong, 12 Cal. 345.416, 457, 461 Ah F,ook, 62 Cal. 493 7 Ah Fook. 64 Cal. 380 314. 363, 374, 394, 397 Ah Fung, 16 Cal. 137 404 Ah Fung, 17 Cal. 377 401, 402 People v. Ah Gee Yung, 86 Cal. 144 174, 176, 191 Ah Gow, 53 Cal. 627 442, 444 Ah How, 34 Cal. 218. .371 372, 405 Ah Jake. 91 Cal. 98... 197, 400, 471 Ah Ki. 20 Cal. 178 371 Ah Kim, 34 Cal. 181 302, 442 Ah Kim, 44 Cal. 384 459. 461 Ah Kong. 49 Cal. (5 190, 471 Ah Lee, 60 Cal. 85 178, 196 Ah Lee Chuck, 66 Cal. 662 351 Ah Lee Doon. 97 Cal. 171 48. 329, 331, 336, 415, 465 Ah Len, 92 Cal. 282 394 Ah Len, 98 Cal 133 42, 200 Ah Loy, 10 Cal. 301. 473 Ah Loy. 57 Cal. 566 409 Ah Luck. 62 Cai. 503 411 Ah Noon. 116 Cal. 656 455 Ah Oon, 56 Cal. 188 401 Ah Own, 39 Cal. 604 46, 84, 214, 461 Ah Own, 85 Cal. 580 384 Ah Peen, 51 Cal. 280 55 Ah Ping, 27 Cal. 491 42 Ah Sam, 41 Cal. 645 163. 166, 309, 454 Ah Sing, 19 Cal. 598 225 Ah Sing, 59 Cal. 400 401 Ah Sing, 95 Cal. 655 240. 305, 407, 408 Ah Teung, 92 Cal. 421 140 Ah Ti, 9 Cal. 17 472 Ah Ton, 53 Cal. 741 455, 476 Ah Toon, 68 Cal. 362 35, 93 Ah Wee, 48 Cal. 236 372, 375, 396, 412 Ah Who, 49 Cal. 32 349 Ah Woo, 28 Cal. 206 160, 164, 208. 209, 300, 306, 310 Ah Ye, 31 Cal. 451 104, 443 Ah Yek, 29 Cal. 576 256, 31C Ah Ying, 42 Cal. 18 391 Ah You, 47 Cal. 121 334 Ah Yute, 53 Cal. 614. .322, 374, 409 Ah Yute, 54 Cal. 90 374 Ah Yute, 56 Cal. 119 386 Ahern, 93 Cal. 519 413 Alden, 113 Cal. 264 161 Aleck, 61 Cal. 137 317, 364, 371 Alibez, 49 Cal. 452 308 Alivtre, 55 Cal. 263 198 Allender, 117 Cal. 81 38, 40, 389 Alsemi, 85 Cal. 434 411, 474 Alviso, 55 Cal. 230 46, 205, 208, 347, 373 Amanacus, 50 Cal. 233 350 Ames, 39 Cal. 403 365 Ammerman, 118 Cal. 28 62. 263. 285, 303, 307, 369, 370, 387. 415. Anderson, 26 Cal. 130 347 Anderson, 39 Cal. 703 382, 396 Anderson, 44 Cal. 65. .188, 397. 411 Anderson, 80 Cal. 205 222, 264 Anderson, 105 Cal. 34 191, 348, 403, 407, 408 Angeles, 61 Cal. 188 185, 411 Anthony, 56 Cal. 397. .361, 455, 456 Antonio, 27 Cal. 407 221 Apgar, 35 Cal. 391 49, 64, 460 Apple. 7 Cal. 290 305, 475 Applegate, 5 Cal. 295 49 Appleton, 120 Cal. 250 219, 320, 412, 472 16 CRIMINAL LAW AND PROCEDURE. People v. Ardago, 51 Cal. 872 251, 252 Arlington, 123 Cal. 356.... 164, 382 Arlington, 131 Cal. 231 65, 387, 408, 469 Arceo, 32 Cal. 40 55,335 Armstrong, 114 Cal. 574 222, 362, 366, 376, 408 Arnett, 126 Cal. 680 88, 92 Arnett, 129 Cal. 306..' 60 Arnold, 15 Cal. 470 186, 190, 198, 199, 298, 414 Arnold, 116 Cal. 682 91, 92, 319, 351, 356, 412 Aro, 6 Cal. 210 207 Arras, 89 Cal. 223 61, 222 Arrlghlnl, 122 Cal. 121 56, 195, 350, 357, 390 Arthur, 93 Cal. 536 386, 472 Ashe, 44 Cal. 288 381, 383 Ashnauer, 47 Cal. 98 311, 321, 457, 473 Ashmead, 118 Cal. 508 369. 370. 376 Atherton, 51 Cal. 495. .339, 406, 414 Atkinson, 40 Cal. 284 377 Aubrey, 53 Cal. 427 93, 460 Avila, 43 Cal. 196 257, 259 Awa, 27 Cal. 638 346 Ayhens, 85 Cal. 86 47, 316 Azoff, 105 Cal. 632 341, 342, 344, 388 Backus, 5 Cal. 275 64, 342, 355 Bagnell, 31 Cal. 410 409 Bailey, 23 Cal. 570 133 Balrd, 104 Cal. 462 356, 381 Balrd, 105 Cal. 126 373, 378, 474 Baker, 1 Cal. 404.321, 325, 344, 471 Baker, 39 Cal. 686 457 Baker, 100 Cal. 188 159, 161, 162, 300, 305, 395 Baldwin, 60 Cal. 435 448 Baldwin, 117 Cal. 244 252, 253, 329, 330, 347, 359, 405 Bangeneaur, 40 Cal. 613 457 Barbour, 9 Cal. 230 470 Barker, 114 Cal. 620 365 Barnes, 48 Cal. 551 102 Barnes, 65 Cal. 16 219, 225 Barnes, 66 Cal. 594 282 Barney, 114 Cal. 554 92, 252, 253, 410, 412, 415, 476 Barnhart, 59 Cal. 381.104, 397, 471 Barrlc, 49 Cal. 342 62, 220, 366, 369 Barry, 31 Cal. 357 174, 180, 400, 470 Barry, 63 Cal. 62 239, 240 Barry, 90 Cal. 41 414 Barry, 04 Cal. 481 101,102 Barthleman. 120 Cal. 7 38, 39, 195, 389, 395, 403, 412, 413, 471. Bartlett. 40 Cal. 142 465 Bartman. 81 Cal. 200 241 Barton, 88 Cal. 178 58, 319, 445, 469, 470 Bawden. 90 Cal. 199 40, 179, 206, 285, 287, 314, 389, Clark, 67 Cal. 99 63 403. 406. Bea0 210. 211. 218. 251. 303, 410, 472 Kalkman, 72 Cal. 212 353, 373, 382 Kalloch. 60 Cal 116 98 Kamaunu, 110 Cal. 609 51, 206, 374, 394 Kearney. 43 Cal. 383 416 Keefer, 18 Cal. 636.. 35, 86, 181, 390 Keefer, 65 Cal. 232 42, 64, 178, 265, t!4 People v. Keeley, 81 Cal. 210 303, 304, 415, 472, 474 Keenan, 13 Cal. 581 57 Kehoe, 123 Cal. 221 268 Koil, 85 Cal. 310 284 Keith, 50 Cal. 137 360, 372, 375 Kelley, 47 Cal. 125 386 Kelly, 6 CaK 210 302, 306 Kelly, 28 Cal. 424 221, 363, 411 Kelly, 38 Cal. 145 241 Kelly, 46 Cal. 356 343,467 Kelly, 59 Cal. 372 244 Kelly, 120 Cal. 273 440. 470 Kelly, 132 Cal. 430 218, 220 Kennedy, 55 Cal. 201 102 Kern, 61 Cal. 244 195 Kernaghan, 72 Cal. 609 389, 408 Kerraghan, 72 Cal. 609 39, 175, 176, 180 Kerrlck, 52 Cal. 447 ,. 363 Kerrigan, 73 Cal. 222 39, 54 Ketchum, 73 Cal. 635 45, 203, 378, 476 Keyser, 53 Cal. 183 458, 466 Kilvington, 104 Cal. 86 183, 261, 290, 402 Kindleberger, 100 Cal. 367 396 King, 27 Cal. 507 170, ITS, 204, 206, 207, 208, 338, 405, 415, 423, 470. King, 28 Cal. 262 296, 312, 313, 317, 447 King, C4 Cal. 338 5!>. 440 King, 125 Cal. 309 303 Kinsey. 51 Cal. 278 440 Kloss, 115 Cal. 567 38, 204, 344, 412; 455, 472 Knapp, 71 Cal. 1 174, 175, 179, 195, 388, 389 Knott, 122 Cal. 410 ...178, 391 Knowlton, 122 Cal. 357 370 Knox, 119 Cal. 73 149, 311 Knutte, 111 Cal. 453 456, 457, 472. 473 Koening, 99 Cal. 574 364 Kohle, 4 Cal. 199 334 Kohler, 5 Cal. 72 57 Kraker, 72 Cal. 459... 221, 366, 406 Kramer, 117 Cal. 647 345, 394. 397 Kruger. 100 Cal. 523 353, 403 Krusick, 93 Cal. 74 66, 268, 269, 388 Kuches, 120 Cal. 566 253, 254, 348, 379, 472 Kuhlman, 118 Cal. 140 116 Kunz, 73 Cal. 313 335. 365 Laohanais, 32 Cal. 434 362. 412 Lafuente, 6 Cal. 202 301, 471 Laird, 118 Cal. 291 159, 161 Lamb. 17 Cal. 317 180, 181. 186 Lambert, 120 Cal. 172 250, 252, 253, 352. 353 Lampson, 70 Cal. 204 322 Lanagan, 81 Cal. 143 190, 191, 202. 405 Landman, 103 Cal. 581 36, 91 Lane, 96 Cal. 596 468 Lane, 100 Cal. 384 196, 204, 380, 381 Lane, 101 Cal. 518 191, 284, 368, 377, 378. 379, 394 Lang, 104 Cal 367.348, 401,403, 406 Langton, 67 Cal. 429 174, 176, 191, 204 TABLE OF CASES. 23 People v vLangtree, 04 Cal. 256 347, 348 Lapique, 120 Cal. 25 132 Larabee. 115 Cal. 159 38, 192 Larson, 68 Cal. 19 63 Latt.:more, 86 Cal. 403. .82, 378, 392 Lawrence, 21 Cal. 372 49, 200, 311, 312, 470 Leary, 105 Cal. 497 206, 341, 409, 410. 417 Leo, 14 Cal. 511 467, 468 Lei-. 17 Cal. 76 55, 200, 318, 335, 342, 443 Lee, 49 Cal. 37 359 Lee, GO Cal. 86 406 107 Cal. 478 296, 304, 316 Lee, 119 Cal. 84 472 Lee, 128 Cal. 330 162 Ah Chuck, 66 Cal. 662.288, 348 Lee Ah Yute, 60 Cal. 96 352, 386, 397 Lee Chuck, 66 Cal. 662 378 Lee Chuck, 74 Cal. 30 406 Lee Chuck, 78 Cal. 329 329, 341, 343, 345, 360, 364, 393 394, 408. Lee Dick Lung, 129 Cal. 491.. 376 Lee Fat, 54 Cal. 527 242, 243, 375, 379 Lee Fook 85 Cal. 304 391 Lee Gam, 69 Cal. 552 392, 414 Lee Kong, 95 Cal. 666 34. 84, 85, 190 Lee Sare Bo, 72 Cal. 623 200, 392, 405, 406 Lee Wan, 71 Cal. 80 235 Lee Yune Chong, 94 Cal. 386. . 62, 65. 105, 205. 441, 444, 458 Lehmann, 104 Cal. 634 95, 269 Leith, 52 Cal. 251 42 Lem Deo, 132 Cal. 199 314 Lemperle, 94 Cal. 48 188, 190, 194, 394, 397, 414 Lem You, 97 Cal. 224 56. 240, 242, 387, 400, 402 Lenon, 79 Cal. C25 57. 253, 381, 412, 463 Lenox, 07 Cal. 113 55, 318 Leonard, 103 Cal. 200 146 Leonard, 106 Cal. 31SJ 132, 133, 135, 297, 298, 408 Leong Sing, 77 Cal. 117 207, 469, 470 Leong Quong, 60 Cal. 108.. 61, 222 Leong Yune Gun, 77 Cal. 636 455, 456 Le Roy, 65 Cal 014 283, 302, 314, 369, 370 Levine, 85 Cal. 39 191, 384, 391 Levison, 16 Cal. 9D 221, 405, 470 Lewis, 36 Cal. 531 40, 2Q4, 423 L. \vis. <;i Cal. 366 103, 303 Lewis, 64 Cal. 403 63, 225, 319, 321, 411 440 Lewis. 117 Cal. 1!H 184, 185, 187, 188, 189 Lewis, 124 Cal. 551 173, 390, 398, 472 Lewis, 127 Cal. 207 156 Lewison. 88 Cal. 260 385 Leyha. 74 Cal. 408 87 Leyshon. 108 Cal. 440 160. 164, 307, 310. 321, 322, 472 LIghtnpr, 4!> Cal. 226...50, 92, 316 Linn. 2., Cal. 150 220 Lin:: Lum. 61 Cal. 553 58 People v. Littlefield, 5 Cal. 355. .224, 306, 442 Little Pete, 123 Cal. 373 353 Lloyd, 9 Cal. 55 208 Lock Wing, 61 Cal. 381. . . .195, 384 Lockwood, 6 Cal. 200 207, 417 Logan, 4 Cal. 188 323, 324, 473 Lombard, 17 Cal. 320 197 Long, 39 Cal. 694 178, 179, 470" Long, 43 Cal. 444 369, 477 Long, 121 Cal. 494 462,465 Lon Yeck, 123 Cal. 246 408, 413, 472 Lopez, 26 Cal. 113 312 Lopez, 59 Cal. 3C2 221, 379, 413 Lopez, 90 Cal. 569 225, 300 Louie Foo, 112 Cal. 17 353, 374, 375, 394, 458, 463, 465, 475. Loui Tung, 90 Cal. 377 50, 193, 455, 456 Lourintz, 114 Cal. 628 250 Love, 19 Cal. 677 67 Lovren, 119 Cal. 88 265, 276, 367, 384 Lowen, 109 Cal. 381. .442, 471, 472 Lowery, 70 Cal. 193 ...57, 103 Luchetti, 119 Cal. 508 221. 222, 398, 407, 455 Ludwig, 118 Cal. 329. .415, 417, 470 Lum Yit, 83 Cal. 132 456, 457, 469, 472 47& Lundin, 117 Cal. 124 53, 160, 162, 413 Lynch, 101 Cal. 299 85, 186, 188, 1Q& Lynch, 122 Cal. 501 ' 348, 365, 379, 380 MacKinley, 9 Cal. 250 216 Madden, 76 Cal. 521. .375, 401, 412 Magallones, 15 Cal. 426'. 443 Maguire, 26 Cal. 635 303,464 Mahlinan, 82 Cal. 585 137, 30a Mahoney, 77 Cal. 532 326, 338, 458, 465, 475 Main, 114 Cal. 634 105, 364, 365 Majors, 65 Cal. 100 42, 61, 62, 178, 195, 319, 326, 334, 340, 367, 451, 457, 459. Malaspina. 57 Cal. 628 401 Mallon, 103 Cal. 514. .374, 404, 405 Manahan, 32 Cal. 68. .253, 297, 335 Mann, 113 Cal. 79 34, 35 Manners, 70 Cal. 423 220, 441 Manning, 18 Cal. 335 400 Manning. 48 Cal. 335 473, 475 March. G Cal. 543 62, 174, 176, 414, 44S Mnrkham, 7 Cal. 209 170. 450 Maikham, 64 Cal. 157 97, 100, 303, 351, 45 Marks 72 Cal. 47 412, 409. 470 Maroney, 109 Cal. 279 319, 471, 474 Marquis, 15 Cal. 38 205 Marseiler. 70 Cal. OS 204, 303, 357, 384, 415, 476 Marshall, 59 Cal. aSO 40, 69, 72. 197, 219, 389 Marshall, 112 Cal. 423 71, 190. 191. 409, 471 Marshall. 120 Cal. 70 413 Martin. 6 Cal. 477 467 Martin, 32 Cal. 92 S03, 415, 465, 471 Martin, 47 Cal. 101 86, 93. 208, 461, 462 24 CRIMINAL LAW AND PROCEDURE. People v. Martin, 102 Cal. 558 153, 155, 156, 219, 474 Martinez, 66 Cal. 278 403 Maurino, 77 Cal. 43 149 Mauritzen, 84 Cal. 37 154 Maxwell, 24 Cal. 14... 223, 258, 411 Maxwell. 118 Cal. 50-54 241, 242 Mayes, 66 Cal. 507 251, 252, 253, 255, 375, 400, 437, 473 Mayes. 113 Cal. 618 56, 350, 351, 353, 357, 374, 388, 394, 395. Mayne. 118 Cal. 517 251, 457 MeAnslan, 43 Cal. 55 469 McCalln, 8 Cal. 301 331 McCarty, 48 Cal. 557 334, 444, 455, 458 McCarty, 115 Cal. 255 38, 39, 40, 192, 389 McCarty, 117 Cal. 65 105, 358 McCanley, 1 Cal. 379. .325, 337, 471 McCauley, 45 Cal. 140 381, 456 McConnell, 82 Cal. 620 287, 314, 458 McCoy. 71 Cal. 395 317, 342, 412, 457 McCrea, 32 Cal. 98 374, 383, 392, 405 McCrory, 41 Cal. 458. .317, 318, 323 McCurdy, 68 Cal. 576 284. 285, 287, 344, 409, 456, 472 McDermott, 8 Cal. 288 240 McDermott, 97 Cal. 247 49, 460 McDona--. 39 Cal. 698 350 McDonnell, 47 Cal. 134 38. 40, 298, 389, 455 McDonnell, 80 Cal. 285 163, 166, 307 McDowell. 71 Cal. 194 229 McElroy, 116 Cal. 538 219 McFadden, 65 Cal. 445. .90, 92, 93 McGarvey, 56 Cal. 327 327 McGilver, 67 Cal. 55 104, 378 McGrejrar. 88 Cal. 141 50. 106, 319, 417, 462, 466, 471 McGrew. 77 Cal. 560 148 McGungtll, 41 Cal. 429 334, 338, 356, 357, 306 Mclntyre. 127 Cal. 423 283, 386 McKay, 122 Cal. 628 190. 331, 395, 413, 414, 445 McKellnr. 53 Cal. Cn 353 McKenna. SI Cal. 158 157, 303 McLane. 00 Cal. 412 349, 419 UcLangblln, 44 Cal 439 383 McLean, S4 Cal. 480 360. 365. 403, 407. 412 McMahon. 124 Cal. 435 397, 4P5 McMakin, 8 Cnl. 547 Si, 86 McNabh, 79 Cal. 410 410 BicNamara. 04 Cnl. 500. 05. 300. 375. 383. 387, 401, 412 McXealy, 17 Cnl. 332 '!! McNulty. 03 Cnl. -427 33. 40. 00. 191. 207, 3S9. .'{09, 445 MeXnlty, 05 r.il. r,04..461, 403, -i.;0 McXutt, 64 Cnl 11fi. 381 MeNntt, 03 Cnl. 658 90, 413 Melendrcz. 120 Cnl. 549. 181, 183, 290 Mellon. 40 Cnl. 648 46, 48, 223. 322 Melrane. 39 Cnl R17. . 350 Merkle, 89 Cal S2. 456 People v. Mesa, 93 Cnl. 581 93, 252, 255, 256, 455 Messersmith, 57 Cal. 575 40, 408, 411 MesscTsniith. C1 Cal. 240 375, 389, 400, 405, 406, 413, 425 Methcvrr. i::2 CUT. 331 38, '.'.'.* Methvin, 53 Cal. 68 351 Meyce, 86 Cal. 393 135 Meyer, 73 Cal. 548 319, 320, 440 M-yer, 75 Cal. 383 215, 216, 35*;. .'XJ Miles, 55 Cal. 207 178, 189 Milliner, 122 Cnl. 184 57 Mlllgate, 5 Cal. 127 171. 170. :^3, 389 Mllian, 106 Cal. 320 153, 156, 224, 307 Miller, 12 Cal. 291 47, 48 Miller, 33 Cal. 99 58, 356. 455 Miller, S2 Cal. 107 109. 44 Miller, 114 Cal. 10 318, 204 Miller, 121 Cal. 243 176, 178 Miller, 122 Cal. 84 229. 230, 369, 374, 474 Miller, 125 Cal. 44 54, 338 Mills, 17 Cal. 276 296 Milne, 60 ^al. 71 213, 309 Milr.er. 122 Cnl. 171 194; 414 Millsaps, 35 Cal. 48 297 Mitchell, 55 Cnl. 237 221, 375, 376, 401, 406 Mitchell, 02 Cnl. 4Tr 307. 398 Mitchell. 04 Cal. 87 55, 386 Mitchell, 02 Cnl. 500 30. 160, 161, 102, 164, 307, 440 Mitchell, 94 Cnl. 550 354. 308. 370, 383, 384 Mitchell, 100 Cal. 32S 203. 343. 364. 470 M'tchell. 129 Cnl. 5S4. .ISO. 3*2. 45g Mize, 80 Cnl. 41 36, 87. 90, 91, 380. 409 Monn, 65 Cal. 532 360, 382, 38-1. 474 Molce, 15 Cal. 330.... 207, 208. 323 Molina. 126 Cnl. 50r, 307 Monaghan, 102 Cnl. 229 316 Monnhan. 59 Cnl. 380 411 Monila. 120 Cal. 50.1 470 Montarinl. 12 Cal. 601 155. 217. 218. 219 Monteith. 73 Cal. 7 210. 305. 385 Montejo. 18 Cal. 38 310 Montgomery, 53 Cal. 576... 203, 335 Moody, 69 Cnl. 184 316 Moon! 65 Cnl. 532 173 Mooney, 127 Cal. 339 36, 78, 80, 82 Moonoy. 132 Cnl. 16 63 Moore, 8 Cal. 90 174. 178, 179. 409 Moore. 41 Cal. 238 Moore, 45 Cnl. 10 364 Moore, 103 Cnl. 508 40. 118. 301. 331, 300, 470 More. 68 Cnl. 500 40. 285. 314. 315. -*01 Mor". 71 Cal. 546 462 Morlno. 54 Cnl. 575 386 Morlne. 01 Cnl. 307 179. 188. ..S7. 400. 410. 433 Morlno, 85 Cal. 51!"! 53. 210. 217. 218. 466 Morrow. Cnl. 1 4~ 204. 347. 356, 361. 362. .103 Morphv. 100 Cnl. 8-1 154 TABLE OF CASES. 25 People v. Mortier, 58 Cal. 262 411 Mortimer, 46 Cal. 114 59, 323, 340, 396 Mortimer, 58 Cal. 267 340 Morton, 72 Cal. 62 102, 404 MuhliHT. 11." Cal. 306. .64, 442, 471 Miilkoy. 05 Cal. 501 102 Mulling, S3 Cal. 138 187, 357, 377, 394, 475, 476 Munn, 2 W. C. R. 748 430 Munn, 65 Cal. 213 35. 36, 158, 159, 180, 181 Murat, 45 Cal. 283 86, 88. 89, 92, 93, 442 Murhar-k. 64 Cal. ;:r,o 164, 181, 399, 414, 429, 445, 463, 471. Murphy, 39 Cal. 52 206, 207, 209, 300, 364, 872 Murphy, 45 Cal. 143 196, 337, 339, 340, 370, 446 Murphy, 47 Cal. 103 216, 220, 222, 398, 414, 471 Murphy. 51 Cal. 376 45, 134 Murray. 10 Cal. 310. .197. 208, 209 Murray, 14 Cal. 159 34, 35, 210 Murray, 41 Cal. 66 349, 362, 412 Murray. 85 Cal. 350 332. 335, 348, 455, 471 Murray, 86 Cal. 31 347, 401, 403, 406, 407 Murray. 94 Cal. 217 344, 345 Myers, 2r> Cal. 74. .79, 305, 306 31 n Myers, 20 Onl. 51R 40, 174, 389 Myers. 70 Pal. 582 341, 363 Napthalv. 105 Cal. 641 284 Navis. 3 <~-al 106 372 Naylor. 82 Pal 607 241 Nearv 104 Cal. 373 191, 312. 361. 369, 412, 469, 472 Neason. 67 Pal. 22." 440 Neher. 125 Cal. 560 409 Neil. 91 Pal. 465 123, 157, 304 Nelson. 56 Cn'. 77 215. 263, 267, 409. 410 Nelson, 58 Cal. 104 36. 104, 301, 302, 305 Nelson. 85 Cal. 421 265, 362, 385, 456, 471, 473, 475, 477 Neshitt. 102 Cal. 327.. 153, 157, 30n Nf-ustadt. 82 Cal. 273 450 Newr-eriv. 20 Cal. 441 42, 43 Newcomer, 118 Cal. 272 17P, 187, 188, 189, 190, 340, 402, 403. Ne^ee. 86 Cal. 395 375 Niohol. 34 Cal. 211 178, 179, 187, 188, 204, 207, 208, 09. 423. 427. Nichols. 62 Cdl 622... 347, 430. 444 Noll. 20 Cnl. 1R4 55, 447 Nonelln. 90 Pnl. 333 3~2 Noreeea, 48 C^l. 123 201, 468 Nortnpv. 77 Cal. 618 97. 00 296. 297. 311, 312, 395. 412. 474. Nnjront. 4 Cnl. 3^1 300 Nv Snm Phnn2 3-2. 3-5. 356, 359, 378, 386 O'Brien, 78 Cm 41 18. 105, 412, 415. 45rl O'Brien, 89 Pal 4s 58. 265. 266. 330. 455, 468 People v. O'Brien, 96 Cal. 171 94, 159, 164, 303, 350, 357, 381. 402, 403, 404. O'Brien, 106 Cal. 104 65, 132, 134, 387, 473 O'Brien, 130 Cal. 1 66, 254, 310, 388, 389, 402, 406, 472. Oiler. 66 Cal. 101 55,385 Oldham, 111 Cal. 648 215, 364, 367, 368, 407, 414 O'Leary, 77 Cal. 30 63, 65, 235, 316, 415, 458 Ollveria, 127 Cal. 376 265, 302, 304, 331, 369, 395, 412 Ulivie, 00 Cal. 69 466 Olsen, 80 Cal. 122 35, 175, 177. 178, 206, 412, 471 Olwell, 28 Cal. 456 62, 458 O'Neal, 67 Cal. 378 347, 356, 471, 457 O'Nell, 47 Cal. 109 116, 480 O'Xeil, 48 Cal. 257 54, 256, 300 O'Nell, 59 Cal. 259 391 O'Xeill. 78 Cal. 388 205 Opie. 123 Cal. 294 215, 367, 401 Oreileus, 79 Cal. 180 61, 162 Outeveras, 45 Cal. 26... 42 Outeveras, 48 Cal. 19 41 Owen. 123 Cal. 482 30. 200, .,37. 338, 339, 341, 470, 475 Owens, 132 Cal. 469 192, 316 Pacheco, 70 Cal. 473 412 Padillia, 42 Cal. 533 362. 363, 415, 458, 464, 468, 471 Page. 116 Cal. 392 132, 137, 296, 312, 315, 371, 39 Palmer. 53 Cal. 61D 146 Pape, 66 Cal. 367 87. 88 92, 307, 442, 446 Parker, 91 Cal. 91 104 Parks, 44 Cal 105 51 Parsons, 6 Cal. 487 209, 304 Parton. 49 Cnl. 632 369, 471 Patrich. 118 Cal. 332 451 Patterson. 124 Cal. 102 210, 303. 378. 380, 395, 408/474 Paulsell. 115 Cal. 6. ..362, -in?. T\ Payne, 8 Cal. 344. 183, 416 Pearne, 118 Cal. 151 If 7, 180, 181, 204, 206, 411 Peller, 132 Cal. 615 460 Penniman. 37 Cal 271 67 Pernzzo, 64 Cal. 106 240 Perdue, 48 Cal. 552 68, 69 Perdue, 49 Cal. 425 182, 326, 442, 444, 466 Perez, 87 Cal. 122 220, 305, 441, 447 Perini, 94 Cal. 475 33, 218, 257, 259 Perley, 2 Cal. 564 98, 143 Perry. 65 Cal 568 403. 413 Peterson, 9 Cal. 314 136,225 Phelan, 93 Cal. Ill 103 Phelan. 123 Cal. 551 193, 194, 298, 345, 384, 395, 456, 472. 476. Ph'llips, 45 Cal. 44 462 Phillips, 70 Cal. 61 161. 162, 349, 405, 411 Phipps, 39 Cal. 326 209, 301, 303, 362 Picetti, 124 Cal. 361 4> Pico, 62 Cal. 50 38, 39, 40. 217, 219, 389, 425 26 CRIMINAL LAW AND PROCKDURK. People v Peoule v Piggott, 126 Cal. 509 Robinson, 19 Cal. 41 371 22i>, 2^5, 380, 398 Robinson, 4G Cal. 94 448 Flummer, 9 Cal. 299 "-'<;. : Robles, 29 Cal. -i^l 223, 352 Pluinmcr. 12 Cal 25(i 471 Rohles, :!1 t al. 591 224, 372. :;79 Plyler, 121 Cal. 160 Hoblcs, 117 Cal. GSi 241, 311 233, 283, 323, 355, 4(r U ..derigas, 49 Cal. IT 388 Plyler, 126 Cal. 879 Roderig... '.'. Cal. i; 06 336, 385, 405, 476 Rodgers. 71 Cal. 56.1 345 Poirirl. 19 Cal. 600 224,225,307 Rodlcy, i:;l Cal. 24 o Pool, 27 Cal. 572 239, -K'. 211, 242. 243, 312. 326, 177, 179, 185, 186, 195, 208, 290. .".27. 830, :;7, 415 Frosporo, 44 Cal 186 416, 417 Rolfo. 61 Cal. 540 Putman, 129 Cal. 258 362. 387, 401, 443, 477 321, 349, 358, 394, 405 Roney. 1(>0 Cal. 375 412 Qulney, 8 Cal. 89 321, 32? Rose, 85 < 'al. 378 109, 384, 388 yuinn, 127 Cal. 542 311. 412 Ross, 65 Cal. 104 360 Qurise, 59 Cal. 343 307, 385, 386 R <>;*, 85 Cal 3S3 61, 395 Rao. 66 Cal. 42.'! 155, 219 Ross. !n3 Cal. 425.... 243, 244, 458 Raina, 45 Cal. 292 381, 383 Ross, 115 Cal. 233 Ramirez, 13 Cal. 173 417 349, 402, 470. 472. 476 Ramirez, 56 Cal. 533 Rowe, 7 Cal. 1S3 115 351, ::<;-', ::<;i, 371, 405, 411, 414, Royal, 5." Cal. < ; .2 249 117. 470. 471. R.yrv. in.", Cal. 173 132 Ramirez, 73 Cal. 403 200, 201 Rozelle. 7S Cal. s4 Rangod. 112 Cal. 069 41. 42, 58, 275, 305, 352, 355, 3G6 2.-.O. 252. 2.-,3. 270. 303, 379, 413 Rushing, 130 Cal. 449 Raschke, 73 Cal. 37S 159. 351, 362, 393, 456, 472 155, 217, 219, 467 Russell, 46 Cal. 121 333. 334 Raten, 63 Cal. 422 Russell, 81 Cal. 616 179. 183, 188, 191, 2!>1 78. so, 303. 403. 471 Ratz. 115 Oal. 132 251 Ryan. S2 Cal. 017 318 Raye, 63 Cal. 492 446 Ryan. 108 Cal. 581 Redinger, 55 Cal. 290 460 :;::o, 348. 394, 412 Reed, 48 Cal. 553 349 Sa!or.e, 62 Cal. 139 Reed, 70 Cal. 529 0,2, 154 46. 47. 134, 21 rt, 217. 351, 474, 477 Reilly. 100 Cal. 648..' 385. 470 Saiuario, 84 Cal. 486 Reinhart, 39 Cal. 44:i 350. 355 201, 316, 317, 318, 477 Renfrew, 41 Cal. 37 33s Sain Lung, 70 Cal. 515 Reyes. 5 Cal. 347 336 169,358,447 Reynolds, 16 Cal. 129 Samsels, 66 Cal. 100 333, 334, 335, 338 1*0. 340, 382, 417 Ribolsi. 89 Cal. 402 Samonset, 97 Cal. 448 191, 222. 225, 257, 259, 307, 364, 2, 401, 412 365, 390. 404. Sanchez. 24 Cal. 17 Rice, 73 Cal. 220 56. 259, 306 175. 177. 17s. 180, 181, 1^2. 200 Richards. 67 Cal 412.. 109, 110. :;(',<; 414. Richmond. 29 Cal. 413 41, 47O Sanders. 114 Cal. 21G Richter. 113 Cal. 473 315 66. 1'.1. 321. 356, 363, r:r>9, 378, Righetti, 66 Cal. 184 881, ::ss. :;'.;. 224, 307, 407, 4-40 Sanford, 43 Cnl. 35 Riley. 48 Cal. 549 447 202, 2i>7. 33*. 340, 416, 417, 474 Riley, 65 Cal. 107."... Sansome. 98 Cal 239 285, 333, 338, 339, 409 I"-", 1O5, 2A6, 286, 319, 342, 396, Riley. 75 Cal. 1)8. .204, 206, 386, 387 402. 458, 459. 469. Roach, 17 Cnl. 298 196 Baverpool, 81 Cal. 651 Roach, 48 Cal. 382 50, 51, 471 87, 303. 304. 442 Roach. 129 Cal. 33 25u. 255 Saviors, 14 Cal. 29 ..303, 305 Roberts. 6 Cal 214 S. -in.il. IL'.S Cal. 360 475 174, 176. 296. 297, 383, 402, 414 Schcnicii. >-5 Cal. W. 350 Roberts, 114 Cal. 67 60, 61, 398 Schmidt, 63 Cal. 28 92, 208 Roberts, 122 Cal 377. .353, 392, 404 SHim'dr, 64 Cal. 260 62, 64. 314 Robertson, 67 Cal 646 Sdimitt, 106 Cal. 4* 187, 189, 420, 432 40, 389, 390. 412 Robinson, 17 Cal. 371 467. 470 Srhoedde, 126 Cal. 373 392, 405 TABLE OF CASES. 27 People v. Schuartz. 32 Cal. 161 79, 81 Sell wart/-, .".2 Cal. 101 79, 81 Scott, :t2 Cal. 200 79, 81 Scott, r.9 Cal. 341 317, 318 Scott, OU Cal. GO 189 Scott, 74 Cal. 94 46, 103, 134, 223, 301 Scott, 93 Cal. 516. 90, 92 Scott, 121 Cal. 10T 472 Scott, 123 Cal. 430.... 187, 188, 339 .Scoggins, 37 Cal. 675 is-;, 198, 199, 333, 877, 433 Searccy, 121 Cal. -i 55, 332, 335, 394, 395 Sears, 18 Cal. 035 413, 417 Sears, 119 Cal. 271 103, 349, 350, 379, 394, 472, 476 Sehorn, 116 Cal. 009 197, 284, 285, 286, 297, 315, 330, 331, : '.2, :;:{.. ::4n, 356, 385, 475 Sepulveila. 59 Cal. 343 442 Sexton, 132 Cal. 37. 143, 316 Shnber, 3 Cal. 38 11)1, 103, 208, 209, 305 Shainwold. 51 Cal. 468 81, 82, 378, 455, 476 Shattuok, 109 Cal. 673 347, 402, 474 Shaughnessy, 110 Cal. 602 15."., 10'.), 170, 217, 219, 3S4, 411 Shaver 120 Cal. 354 353, 383 Shaw, 111 Cal. 171 348, 376, 471, 475 Shea, 125 Cal. 151 254 Shear. 7 Cal. 140 49 Sheldon, 68 Cal. 436 35, 140, 301, 303, 415 Shera Ah Fook, 64 Cal. 380.. 318, 475 Sheparclson, 48 Cal. 189 257, 381, 383 Shot well, 27 Cat. 394 60, 160, 308, 309 Shurbrick, 57 Cal. 565 285, 465 Shnler, 28 Cal. 490 20.",, 264, 303, 326, 327, 362, 417 Shuttuck, 109 Cal. 673 199 Sierp, 116 Cal. 249 61, 200, 243, 385, 3S6 Sllva, 121 Cal. 6G8 349, 350, 351. 398, 410, 413 Simmons. 119 Cal. 1...297, 314, 461 Simons. GO Cal. 72 187 Simonsen, 107 Cal. 345 156. 369, 373 Simpson, 50 Cal 304 79, 82, 472 Simptnn. 133 Cal. 307 245 Sin.ir Lmn, 61 Cal. 538 457, 464 Skldmore, 123 Cal 267 154 Slater, 119 Cal. 620 72,271 Smnllini.'. !>4 Cal. 119 60, 64, 371. 372, 439, 458 Smallman, 55 Cal. 185 217, 360, 472 Smith, 1 Cal. 9 283, 288, 483 Smith. 15 Cal. 409 216, 224, 369 Smith. 23 Cal. 280 218 Smith. 26 Cal. 666 195 Smith. 50 Cal. 602 382 Smith, 57 Cal. 130 415, 470 Smith. 59 Cal. 365 40. 284. 383, 389, 411, 458 Smith, 86 Cal. 238 102, 103. 104, 301, 302, 308 Smith, 93 Cal. 445 194, 471 People v. Smith, 98 Cal. 218 364, 365 Smith, 103 Cal. 567 161, 163, 164, 302, 305, 372, 440, 442. Smith, 105 Cal. 676 414, 471 Smith, 100 Cal. 82 203, 362, 378, 381, 385 Smith, 112 Cal. 333. .219, 222, 307 Smith, 121 Cal. 362 50, 60, 62, 394, 397, 457, 474, 475 Snyder, 75 Cal. 323. .249, 252, 308 Soap, 127 Cal. 408.... 344, 455, 472 Soto, 49 Cal. G7 219, 372 Soto, 53 Cal. 415 102 Soto, 59 Cal. 368 407, 408 Soto, 65 Cal. 621 58, 61 Soto, 63 Cal. 165.. 204, 208, 209, 381 Southern, 120 Cal. 645 203, 475 Southwell, 46 Cal. 154 297, 298, 299, 314 Sprague, 53 Cal. 491 54, 344, 407, 408, 418, 467, 468 Sprague, 54 Cal. 92 461 Sprague 57 Cal. 147 460 Squires, 99 Cal. 327 97, 100 Stacey, 34 Cal. 307 298, 312, 313, 461 Staken, 40 Cal. 599 51, 223, 257, 259, 364 Stanford, 64 Cal. 27 223, 224, 307, 456 Stanley, 47 Cal. 118 59, 63, 364, 469, 471 Stanton, 39 Cal. 698 166,208 Stauton, 106 Cal. 139 84, 90, 275, 401, 405, 407 Staples, 91 Cal. 27 45, 46, 53, 219, 223, 283, 286, 287, 288. St. Clair, 38 Cal. 137... 104 St. Clair, 56 Cal. 406 224 Stephens, 79 Cal. 429 61 Sternberg, 111 Cal. 3 123, 355, 365, 366, 369, 403 Steraberg, 127 Cal. 510 404, 406, 407 Stevens, 68 Cal. 113 367,368 Steventon, 9 Cal. 273 174, 207 Stewart, 7 Cal. 141 331, 340 Stewart, 28 Cal. 396 197 Stewart, 64 Cal. 60 318, 3a5 Stewart, 80 Cal. 129 217 Stewart, 85 Cal. 174. .249, 250, 381 Stewart, 90 Cal. 212 252,255 Stewart, 97 Cal. 241 -.252, 255 Stickman, 34 Cal. 242 101 Stillman. 7 Cal 118 462 Stites, 75 Cal. 576 34 35 Stokes, 71 Cal. 265 95, 387 Stokes, 102 Cal. 501 461 Stokes, 103 Cal. 199 G3, 342, 343, 345 Stone, 16 Cal. 369 216,402 Stone, 82 Cal. 36 184 Stonecifer, 6 Cal. 410 176, 195, 338, 341, 389, 465, 476 Storke, 128 Cal. 486 400 Strassman, 112 Cal. 683 66, 222, 241, 387, 388 Streuber, 121 Cal. 431 66, 383, 388, 404, 405 Strong, 30 Cal. 151 362. 3G8, 372, 400, 404, 405, 408, 412. 28 CKIMINAT. LAW AND PKOCEDURE. People v. Strong, 46 Cal. 303 224, 376, 398, 415, 421, 470 Stuart, 4 Cal. 218 58, 333 Suesser 132 Cal. 631 54, 192, 325, 338 Sullivan, 129 Cal. 557 345, 361, 400 Button, 73 Cal. 243 456 Swafford, 65 Cal. 223 54 Swalm, 80 Cal. 46 217, 220, 225, 412, 472 Swenson, 49 Cal. 388 93, 196, 220, 315 Symonds, 22 Cal. 349 312, 323, 337, 343 n 344 Taggart, 43 Cal. 81 308 Taing, 53 Cal. 602 198, 338 Tallmadge, 114 Cal. 427 456 Tamkin, 62 Cal. 468.. 186, 198, 429 Tapia, 131 Cal. 647 373, 401, 404, 463 Tarbox, 115 Cal. 60 54, 251, 284, 285, 364, 369, 372, 373 Tarni Pol, 86 Cal. 231 191, 342, 345, 471 Tarpey, 59 Cal. 371 265 Taylor, 36 Cal. 266 35, 36, 405, 410, 414 Taylor, 59 Cal. 649 198, 200, 201, 202, 370 Taylor, 119 Cal. 113 305 Teeherow, 40 Cal. 286 415, 471 Teixerla, 123 Cal. 297 184, 380, 476 Ten-ill, 127 Cal. 99 158, 311 Ten-ill, 132 Cal. 499... 61, 164, 464 Thomas, 63 Cal. 482 303 Thomas, 110 Cal. 43 319 Thompson, 4 Cal. 239 57, 304, 322, 446 Thompson, 28 Cal. 215 309, 387, 415 Thompson, 29 Cal. 215 309 Thompson, 34 Cal. 671 216 Thompson, 50 Cal. 480 365 Thompson, 84 Cal. 598 284, 286, 343, 369, 386 Thompson, 111 Cal. 252 276, 307, 309, 310 Thompson, 115 Cal. 160 276, 404, 461 Thomson, 92 Cal. 512 195, 198, 348. 401, 408, 411 Thornton, 74 Cal. 488 342, 343, 455 Thrall, 50 Cal. 415 369, 374 Thurston, 5 Cal. 69 298 Tierney. 67 Cal. 55 252 Tiley, 84 Cal. 651 348, 353, 354 Tinder, 19 Cal. 539 66, 68, 296 Tipton, 73 Cal. 405... 344, 404, 460 Titherington, 59 Cal. 598. .221, 401 Toal, 85 Cal. 333... 48 Tock Shew, 6 Cal. 637 396 Todd, 77 Cal. 466 112, 160, 163, 164 Tomlinson, 35 Cal. 503 158, 159, 163, 307, 310 Tomlinson, 66 Cal. 344 133, 209, 303, 409 Tomlinson. 102 Cal 19 , 155. 164. 215. 219. 222. 225. 378 Tom Nop, 124 Cal. 150 171, 450 People v. Tonielli, 81 Cal. 279 61, 144, 469, 470 Torres, 38 Cal. 143 90, 415, 464, 470, 471 Townsley, 39 Cal. 405 219 Travers, 56 Cal. 254 186 Travers, 73 Cal. 580. .62, 205, 441 Travers, 77 Cal. 178 62 Travers, 88 Cal. 233 40, 41, 298, 323, 314, 363, 389, 401, 404, 405. Travis, 56 Cal. 251 198 Treadwell, 69 Cal. 226 132, 133, 135, 323, 397, 407, 408, 411, 412. Trim, 37 Cal. 275 56, 415, 416, 447, 468 Trim, 39 Cal. 75 367,368 Tucker, 104 Cal. 443 378 Tucker, 115 Cal. 338 65, 317, 440, 471 Tucker, 117 Cal. 229. 62, 345 Tupper, 122 Cal. 42*: 58 Turcott, 65 Cal. 129 188, 190, 398, 409, 413, 477 Tin-ley, 50 Cal. 469. .181, 414, 429 Turnbull, 93 Cal. 630 98 Turner, 1 Cal. 152 114, 115 Turner, 39 Cal. 370 298, 313, 343, 345, 454 Turner, 65 Cal. 540 87, 93, 303, 352, 415, 442 Turner, 85 Cal. 432 311 Turner, 113 Cal. 278.. 159, 160, 163 Turner, 122 Cal. 679 239, 243, 244, 303 Tyler, 35 Cal. 553 256, 351 Tyler, 36 Cal. 522 253, 254, 372, 380, 381, 396 Un Dong, 106 Cal. 83 350, 356, 394, 403, 472 Urias, 12 Cal 326 92 Urquiclas, 96 Cal. 239 105, 225, 363, 455, 456 Uwahah, 61 Cal. 142 371 Valencia, 43 Cal. 555 178, 179, 308, 411 Valencia, 45 Cal. 304 468 Vallarino, 66 Cal. 229 303 Valliere, 123 Cal. 576 87, 91, 356, 379 Valliere, 127 Cal. 65 381, 394 Vanard, 6 Cal. 563. .87. 92. 93, 310 Van Ewan, 111 Cal. 152 133, 347, 348, 360, 378, 401, 403, 406. 407. Vance, 21 Cal. 400 208. 332, 333, 406, 472 Van Horn, 119 Cal. 323 203, 286, 314, 335, 341, 367, 369, 390, 412, 476. Vann, 129 Cal. 118 249, 250, 308, 395 Varnum, 53 Cal. 630. ..62, 412, 463 Vasalo, 120 Cal. 168 53, 80, 82, 283 Vasnuez, 49 Cal. 560 42, 178, 338, 403 Velarde, 59 Cal. 461 46. 221, 266, 368, 370, 382, 411 Vordegreen, 106 Cal. 211 250 Vereneppneckockookhoff. 129 Cal. 497 192. 363, 389 Vernon. 3.*> Cal. 49 196, 200, 202 TABLE OF CASK?. 29 People v. Vice, 21 Cal. 344 264 Vick. 7 Cal. 165 49 Vlrtal, 121 Cal. 221... 221, 380, 381 Vlerra, 52 Cal. 451 88 Vierra, 67 Cal. 234 288 Vilarde, 59 Cal. 463 220 Vlllarino, 66 Cal. 230 87, 88, 305, 307, 313, 315, 318, 442. Vincent, 95 Cal. 428 60. 103, 204, 326, 331 Visher, 96 Cal. 314 442 Voll, 43 Cal. 107 455 Von, 78 Cal. 1 319,469 Von Tiedeman, 120 Cal. 128... 35, 239, 435 Wade, 118 Cal. 672... 269, 321, 322 Waite, 102 Cal. 251 241 Walbrldge, 123 Cal. 273... 264, 266 Walden, 51 Cal. 588 406 Walker. 132 Cal. 141 445 Wallace, 9 Cal. 31 ... 207, 208, 304 Wallace, 89 Cal. 159 347, 348, 354, 381, 382, 401, 476, 477. Wallace, 94 Cal. 497. .225, 284, 465 Wallace, 101 Cal. 28i 90, 91, 331, 332, 403 Wallace, 107 Cal. 137 415 Wallace, 109 Cal. 611 269, 412 Walsh, 43 Cal. 447... 185, 338, 414 Walters, 98 Cal. 138 192, 378, 398, 412 War, 20 Cal. 117. .33, 86, 301, 460 Ward, decided Oct. 13, 1901.. 350, 463 Ward, 77 Cal. 113 335, 339, 366 Ward. 105 Cal. 653 38, 39, 40, 55, 223, 257, 258, 287, 334, 348, 362, 386, 387, 389, 394, 395. 411. Ward, 110 Cal. 373 98, 303 Warner. 117 Cal. 639 356, 377 Warren, 39 Cal. 661 365 Warren, 130 Cal. 683 42, 221, 224, 324, 456 Wasservogle, 77 Cal. 175 153 Wasson, 65 Cal. 539. .202, 348, 359 Watson. 72 Cal. 402 222 Watson, 125 Cal. 342 91, 92 Way, 10 Cal. 336 160 Weaver, 47 Cal. 106 207, 308. 322, 465 Webb, 38 Cal. 467 60,64,462 Webb, 70 Cal. 121 353 Webber, 133 Cal. 23 46 Webster, 89 Cal. 574. .351, 360, 381 Webster, 111 Cal. 384 250, 251, 401, 406 Weil, 40 Cal. 268 334,337 Weir. 120 Cal. 279.. "." 154 Welch, 49 Cal. 182..". 206. 331, 332, 337, 340, 406, 409, 442. Welch. 63 Cal. 168 364 Wells. 100 Cal. 459..." 54. 337, 338, 339, 350, 394, 395, 397. Wolls. 103 Cal. 631 242 Welsh, 63 Cal. 167 347, 375, 376, 377 Wessel. 98 Cal. 352... 254, 310, 457 West, 49 Cal. 610 191 West, 73 Cal. 346. .92, 345, 442, 443 West. 106 Cal. 89 377 People v. \\Vstlake, 62 Cal. 303 186, 188, 197, 202, 349, 414, 474 Westlake, 124 Cal. 452 133, 356, 409 Wheatley, 88 Cal. 114 283, 319, 343, 440, 447, 470 Wheeler, 60 Cal. 590 370, 398 Wheeler, 65 Cal. 7T 287, 329, 356, 397 Wheeler, 73 Cal. 252 284, 288 Whelan, 117 Cal. 559 63, 296, 365, 402 White, 34 Cal. 183 33, 209, 303, 466, 467 White, 116 Cal. 17 105, 411 Whitely, 64 Cal. 211 441 Whiteman, 114 Cal. 338 162, 380, 382 Whitney, 53 Cal. 420.... 415 Wickham, 113 Cal. 283 285 Wickham, 116 Cal. 384 62, 136 Wieger, 100 Cal. 352 154, 156, 370, 372 Willard, 92 Cal. 482 61, 65, 381, 390, 401 Williams, 6 Cal. 20T 337 Williams, 17 Cal. 142 338, 377, 405, 406, 410, 417 Williams, 18 Cal. 187 365, 471 Williams, 24 Cal. 31 321, 322, 328, 345 Williams, 32 Cal. 280 185, 189, 399, 410, 412, 413, 414 Williams, 35 Cal. 671 215,311 Williams 43 Cal. 349 40, 178, 179, 204, 322, 332. 333, 397, 414, 423. Williams, 45 Cal. 25 469 Williams, 59 Cal. 398 68, 118, 401, 406 Williams, 60 Cal. 1 131 Williams, 73 Cal. 534 179, 406 Williams, 75 Cal. 306 470 Williams, 84 Cal. 616 469 Williams, 127 Cal. 212 143, 380, 477 Williams. 133 Cal. 165 254 9 Cal. 260 88, 93, 442 49 Cal. 14 40, 389 57 Cal. 575 389 66 Cal. 370 375, 474 93 Cal. 379. 284 117 Cal. 688.... 91. 92, 378 119 Cal. 384.. 118, 443, 472 Wilson Wilson Wilson Wilson Wilson Wilson Wilson Winkler. 9 Cal. 236 136,307 Winters. 29 Cal. 659 103, 469 Winters, 93 Cal. 282. .402, 409, 471 Winters, 125 Cal. 325 203. 321, 367, 404 Winthrop, 118 Cal. 85 65, 263, 266, 334, 345, 376. 387, 412. Wong Ah Foo, 69 Cal. 180 199, 348, 392, 405. 455 Wong Ah Leong, 99 Cal. 440. . 91, 356 Wong Ah Ngow, 54 Cal. 153. . 364, 375. 406, 408 Wong Ah Teak. 63 Cal. 544.. 187 Wong Ah You, 67 Cal. 31 472 Wonk Ark, 96 Cal. 128 196, 325, 335. 337. 380 Wong Chong Suey, 110 Cal. 117 222, 473 Wong Chuey, 117 Cal. 629 30 CRIMINAL LAW AND PROCEDURE. People v. 194, 202, 348, 356, 366, 376, 383, 394, 395, 474. 476. Wong Sam, 117 Cal. 30 159 Wong Wanir. 92 Cal. 277 300 Woods, 43 Cal. 177 49, 63, 337, 446, 469 Woodward, 45 Cal. 293 42 Woody, 45 Cal. 289 178, 367 Woody, 48 Cal. 81 265 Wooley. 44 Cal. 494 7!) Woon Tuck Wo, 120 Cal. 295.. 384, 394, 456, 467, 474 Wooster, 16 Cal. 435 316 Woppner, 14 Cal. 438 416,467 Worden, 113 Cal. 569 194, 400, 403, 409, 415 Worthington, 105 Cal. 166 354, 359 Worthington, 115 Cal. 244 203. 401, 405 Worthington, 122 Cal. 586.... 188, 414 Wreden, 59 Cal. 593 40, 369, 389, 411 Wright, 45 Cal. 260 186, 417 Wright, 93 Cal. 564 34, 233, 400 Wrinkler, 9 Cal. 234 224 Wyman, 15 Cal. 70... 196, 344, 372 Wyman, 102 Cal 552 131,132 Ybarra, 17 Cal. 1GO 200. 207, 209, 406, 471 Yeaton, 75 Cal. 415. .330, 356, 369 Yee Fook Din, 106 Cal. 1G3.. 91, 474 Ye Park, 62 Cal. 204 91, 188, 189. 408, 432 Yoakum, 53 Cal. 500 325 Yokum, 118 Cal. 440 190, 194, 200, 201, 395, 470 Yorke, 9 Cal. 421 471 Young, 31 Cal. 545 113, 116 Schwarz v. Superior Court, 111 Cal. 106 111. lir. Sharon v. Sharon, 79 Cal. 673.. 95, 350, 465 Spencer v. Branham, 109 Cal. 340 454 Spottiswood v. Weir, 80 Cal. 451 477 Sprague v. Fawcett, 53 Cal. 409 468 State v. Partlow, 90 Mo. 608. . 432 State T. Underwood, 37 Mo. 225 432 Stewart v. State, 1 Ohio st. 66. . 432 Tate v. State, 46 Ga. 151 432 Taylor v. Reynolds. 92 Cal. 577 55 Terrill v. Superior Court, 60 Pac. Reporter, 516 312 Thomas v. Gates, 126 Cal. 1 408 Tomsky v. Superior Court, 131 Cal. 623 113 Tyler v. Connolly, 65 Cal. 30. . 115. 110 Ware v. Robinson, 9 Cal. 111.. 116, 480 White v. Disher, 67 Cal. 403 407 White v. Superior Court, 110 Cal. 66 50,111,116,481 Wnitc v. White, 82 Cal. 449 66, 76, 95 Wiggin v. Superior Court, 68 Cal. 400 112 V.dard v. Archer, 63 Cal. 34 443 Willard v. Superior Court, 82 Cal. 460 55. 321, 358, 386 Woods v. Varnum, 85 Cal. 639. . 237 Works v. Superior Court, 130 Cal. 304 112 TABLK OK COI3KS CITKI3. Penal Code Penal Code 7 07.418 148 20 . . . .33. 41 S 153 21 37. 418. 42'.i 22 3(5. 40. 423 2fi .",7. 41 27 44. 205 31 42 53 57 67 68 85 02 93 . 105 166 182 1*4 187 109. 99 99 99 99 99 99 239 1 ss 100 192 205. 1 ;i5 T.M; 1H7 183. 120 239 19* 122 240 207 123 241. 435 208 127 243 209 132 241 211 137 99 213 138 99. 241 237 263, 107 00 111 366 366 425 425 426 206 426 2i "C, 1S2 183 430 212 213 213 263 266 148 TABLE OF CODES. 31 Penal Code / Penal Code 2 IU 84 80(1 47 >}> 86 801 47 248 _'!> 802 47 250 228 812 289 251 229, 400 813 289 252 229 sir, 2PO 253 220 816 289 254 229 s::t 290 255 229 858 291 256 229 859 291 261 249 SCO 292 265 71 861 292 266 270 862 292 267 71 863 292 268 268 864 292 274 74 sc,-, 292 275 74 SC,(i 292 278 213 867 293 281 94 868 293 282 94 869 283 330 1C8 871 293 332 168 872 293 403 121 873 293 404 121 875 : . . 294 406 121 876 294 407 121 877 294 411 121 879 358 412 121 880 358 415 121 8S2 359 417 121 895 299 420 121 896 299 448 78 948 300 450 103 949 300 453 80 950 300 454 80 959 208, 300 459 101 964 230 460 101 967 224 463 103 976 313 470 158 977 57 487 219 988 313 489 ... 226 !!!.-. 216, 314 490 226 999 63 496 257 1002 315 503 131 1003 315 513 132 1008 63 519 143 1011 52, 317, 445 523 143 1016 316 528 149 1017 316 529 149 1019 317 548 78 1024 317 602 278 1033 325, S27 650 143 1043 57 660 143 1073 337 686 52, 54 1074 339 687 60 Vi'.i:; 319 688 355 1096 490 689 52, 445 1102 422 772 1:37 1105 191, 389, 430 777 44 112 341 778 45 1127 416, 417 780 45 1138 413 781 46 1147 . 57, 439 782 , 46 1149 439 783 46, 300, 301 1150 440 784 - 40 1151 440 785 46 11. V> 441 786 46 1153 441 787 46 1154 441 789 45 1157 441 790 47 1 1 r,s 440 791 47 1161 443 792 47 1162 444 793 47 1163 439 794 47 1164 439 799 47 1170 33f> 32 CRIMINAL LAW AND PROCEDURE. Penal Code Penal Code 1174 465 1368 391 1175 460,467 1382 53 1179 454 Code of Civil Procedure 1180 458 76 49 1181 343, 455 74 292 1182 454 170 286, 327 1185 458 1823 861 1192 317 1824 ; 361 1194 '. 57 1826 361, 422 1200 445 1845 383 1235 460 1847 347, 419 1237 461 1878 346 1238 461, 462 1879 346, 347 1243 468 1880 346 1235 57 1963 35,347 1259 461 2043 ; 358 1272 68 2044 359 1274 68 2045 350 1295 292 2049 364 1297 292 2051 349, 419 1322 347 2052 351, 353 1323 356, 396 2061 347, 354, 369, 408, 418 1367 390 CHAPTER I. CRIMKS AND FMJBLIC OKKBNSES. DEFINED. In this state the terms "crime" and "offense" are gen- eric names, and are used synonymously, while "felony" and "misdemeanor" are specific, each defining a partic- ular class or kind of offense. A crime or public offense is an act committed or omitted in violation of a law for- bidding or commanding it, and to which is annexed a punishment; 1 both definition and penalty are necessary to declare a 'crime. 2 Common law crimes are not recognized, and constructive crimes are contrary to the spirit and let- ter of our law. Inference, implication and strained inter- pretation of courts cannot make criminal any act not so proclaimed by written law. 3 A felony is a crime punish- able with death or by imprisonment in the state prison. A crime for which such penalties cannot be inflicted under any circumstance is a misdemeanor. When crime may be either a felony or a misdemeanor, according to the pun- ishment imposed by the court, it is deemed a felony until judgment imposing a penalty which makes it a misde- meanor. 4 The common law distinction between a high and low misdemeanor, depending on whether or not the offense was infamous, has never been recognized in Cali- fornia. 5 ESSENTIALS OF CRIME. To constitute a crime there must be a union or joint operation of act and intent or criminal negligence. 6 In 1 Penal Code 15. 2 People v. McNulty, 93 Cal. 439. s Ex parte McNulty, 77 Cal. 168. * People v. War, 20 Cal. 120; People v. Perini, 94 Cal. 573. s Green v. Superior Court, 78 Cal. 563. s Penal Code 20; People v. White, 34 Cal. 187. CRIMES--3 34 CRIMINAL LAW AND PROCEDURE. murder there is the additional element of malice afore- thought. 7 The law does not take cognizance of criminal intentions, 8 unless accompanied by an actual attempt to carry out the evil design." Thus, a person may purchase and load a gun with the declared intention to shoot another, but until he makes an attempt to use the weapon upon the person of his intended victim, there is no crime. But as soon as he does anything, however, in pursuance of that design he puts himself within the grasp of the law. 10 CRIMINAL ATTEMPT. While a mere intention is not punishable, an attempt is. The law draws a distinction between preparation to com- mit an offense which merely shows intention and the actual attempt which completes the crime. An attempt is an act tending towards the accomplishment and done in part execution of a design to commit a crime, exceeding an intent, but falling short of an execution of it. 11 It is something more than mere preparation. Preparation con- sists in devising or arranging the means or measures nec- essary for the commission of the offense; but the attempt is the direct step towards its actual commission, after preparations are made. The attempt can be manifested only by acts which will end in the consummation of the offense, but for the intervention of circumstances inde- pendent of the will of the party. 12 ILLUSTRATIONS. Thus, the declarations of a determination to contract an incestuous marriage, the elopement for that avowed purpose, and a request of another to procure a magistrate to perform the ceremony, was held to be only preparation, and not an attempt. 13 So, also, the construction of a 7 People v, Wright, 93 Cal. 566. 8 People v. Elliott, 90 Cal. 589. People v. Devine, 59 Cal. 63; People v. Harris, 29 Cal. 681. 10 People v. Murray, 14 Cal. 160. 11 People v. Mann, 113 Cal. 79. u People v. Stites, 75 Cal. 576; People v. Compton, 123 Cal. 410; People v. Murray, 14 Cal. 160; People v. Lee Kong, 95 Cal. 66,6. 13 People v. Murray, 14 Cal. 160. CRIMES AND PUBLIC OFFEESE8. 35 dynamite bomb with intent to use it in destroying the lives and property of others, was said to be simply an act of preparation ; but the starting to the place of opera- tions, pursuant to an antecedent arrangement with a con- federate, amounted to an overt act done for the purpose of effecting the crime intended, and was an attempt. 1 * Attempting to pass a forged instrument is not consum- mated by a delivery to an agent with the design that the agent shall utter it until some overt act is done by the agent to that end. 15 But the wilful act accompanied by criminal intent or criminal negligence completes the offense, and the result determines its character. 16 Here " wilfull " means only a purpose or willingness to commit the act or make the omission referred to in a definition of the offense. 17 When the law expressly declares an act or omission criminal, the intention is presumed from the commission or omission of the act forbidden or com- manded. 18 But the intent need not be accomplished. If the attempti is made, although it fail, or is voluntarily aban- doned, it is not less criminal. 19 MALICE. In most crimes only a general intent or malice is requi- site. Malice is not to be understood, however, in its com- mon acceptation, as denoting a general malevolence, or enmity toward a particular individual, but in its legal sense, as a wrongful act done intentionally without cause or excuse. 20 A wilful violation of a law is all that is necessary to show such an intent. 21 Acts indicate the intention, and the law sometimes judges previous intent i* People v. Stites, 75 Cal. 576. is People v. Compton,' 123 Cal. 410. is People v. Olsen, 80 Cal. 127. IT People v. Von Tiedman, 120 Cal. 135; People v. Sheldon, 68 Cal. 437. is People v. Frick, 89 Cal. 144. is People v. Mann, 113 Cal. 76; People v. Johnson, 131 Cal. 511. 20 People v. Taylor, 36 Cal. 255; People v. Ah Toon, 68 Cal. 362. 21 Sub. 2,: Sec. 1963, C. C. P.; People v. Munn, 65 Cal. 214; People v. Reefer, 18 Cal. 638; People v. Goslan, 73 Cal. 324. 36 CRIMINAL LAW AND PROCEDURE. by subsequent action. 22 But the common law rule that the intent must be inferred from the acts and words no longer prevails since a defendant may explain his acts and motives. 23 A person must be presumed to intend to do that which he voluntarily and wilfully does in fact do, and that he must intend all the natural, probable, and usual consequences of his own act, but he is not presumed to intend every possible consequence. 24 SPECIFIC INTENT. There are crimes, however, in which a particular or specific intent is essential ; as in forgery, an intent to defraud, 25 larceny, an intent to steal, 26 burglary, an intent to commit larceny or a felony, 27 assault to murder, an intent to kill, 28 arson, an intent to destroy a building." Whenever a specific intent is an element of an offense, no presumption of law can ever arise that will decide it. 80 EFFECT OF DRUNKENNESS ON INTENT. In such cases if at the time of the commission of the offense the condition of mind of the accused person is such that he is incapable of forming the particular intent necessary to constitute the crime, the offense is not com- plete, and in determining this quesetion, intoxication may be shown. 31 PERSONS CAPABLE OF COMMITTING CRIME CRIMINAL CAPACITY. The law presumes every man responsible for his own acts, unless the contrary is made manifest. As has 22 People v. Frick. 89 Cal. 151. 23 People v. Ferrell, 31 Cal. 588; People v. Taylor, 36 Cal. 528. 24 Peoplei v. Munn, 65 Cal. 215. 25 People 1 v. Mitchell, 92 Cal. 590. 26 People v. Devine, 95 Cal. 227. 27 People v. Nelson, 58 Cal. 104. 28 People v. Mize, 80 Cal. 41. 29 People v. Mooney, 127 Cal. 340. so People v. Johnson, 106 Cal. 295; People v. Landman, 103 Cal. 577. 31 People v. Blake, 62 Cal. 278; People v. Harris, 26 Cal. 269; Penal Code 22. CRIMES AND PUBLIC OFFENSES. 37 already been seen, the intent is discovered from the cir- cumstances connected with the crime ; and an act done or omitted in violation of law is presumed to be done wil- fully and with malice. But intent also depends upon the sound mind and discretion of the accused. 32 There are, then, certain circumstances under which the law presumes a person incapable of committing crime. This criminal incapacity may be classed under two general heads: (i) Absence of intention, which includes infancy, lunacy, idiocy, insanity, and ignorance of facts; and (2) Absence of will, which includes unconsciousness, misfortune, or accident, coercion and fear. 33 Infancy, idiocy, and lunacy, as affecting criminal capacity, are easily understood; from the earliest stages of the development of the laws of civ- ilization idiots and lunatics were not chargeable in crim- inal cases for their acts, if committed under these inca- pacities. Idiocy and lunacy need no definition. 34 Infancy in this state is under the age of fourteen years. In the absence of clear proof that at the time of committing the act charged against them, they knew it to be wrongful, children under that age are deemed incapable of commit- ting crime. 35 INSANITY. But insanity presents a more complex question. The precise nature and extent of mental infirmity which destroys responsibility for crime has undergone several changes in the history of the law of England. The many decisions of our own courts conclusively show that even now this important subject of criminal jurisprudence is not free from difficulty. While as a defense insanity will always commend itself to a just and humane law, yet by reason of the facility with which it may be counterfeited, 32 Penal Code 21. ss Penal Code 26. 3-4 Blackstone's Commentaries, book IV., p. 24. 35 Penal Code 26. 38 CRIMINAL LAW AND PROCEDURE. it is looked upon with distrust by courts and received with caution. 86 DEGREE OF UNSOUNDNESS. It may be stated generally that complete and permanent insanity which totally deprives of understanding and mem- ory, or destroys the power of distinguishing right from wrong, always excuses from guilt. But the possession of an unsound mind at the time of the act is not of itself a sufficient defense. A monomaniac certainly is of unsound mind, yet such a person may be capable of distinguishing right from wrong, in relation to particular acts. As to such acts, he must be held responsible. The insanity or unsoundness of mind that excuses crime must be such that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of mind, as not to know the nature or quality of the act, or if he did know it, that he did not know he was doing what was wrong. This is the definition given by Chief Justice Tindall, in the House of Lords, on the trial of McNaughton, in the year 1843. It has been adopted by our Supreme Court, and approved so often that it may now safely be said to be the established law in this state. 87 MORAL INSANITY, IRRESISTIBLE IMPULSE, ETC. If the accused person has the requisite soundness of mind fully to understand and appreciate the nature and quality of his act and its consequences, moral depravity or impairment of will can not relieve him from his respon- se People v. Dennis, 39 Cal. 637; People v. Bumberger, 45 Cal. 650; People v. Ferris, 55 Cal. 592; People v. Pico, 62 Cal, 55; People v. McCarthy, 115 Cal. 264; People v. Larabee, 115 Cal. 159; People v. Kloss, 115 Cal. 577; Peo- ple v. Allender, 117 Cal. 83; People v. Hettick, 126 Cal. 425; People v. Methever, 132 Cal. 331. 3 7 People v. Coffman, 24 Cal. 30; People v. McDonell, 47 Cal. 134; People v. Ferris, 55 Cal. 591; People v. Hob- son, 17 Cal.i 424; People v. Hurtado, 63 Cal. 288; People v. Hoin, 62' Cal. 120; People v. Hubert, 119 Cal. 216; People v. Barthleman, 120 Cal. 11; People v. Fellows, 126 Cal. 240; People v. Ward, 105 Cal. 335. PERSONS CAPABLE OF COMMITTING CRIME. sibility. 38 It may seem a harsh rule that the loss of power to avoid the criminal act by reason of an impairment of will is no defense, if the accused had sufficient capacity to understand its wrongfulness. It certainly punishes a man for an act he cannot resist. Mr. Justice Temple puts the reason for the rule thus : "No one contends that the legal test is perfect, doubt- less it is far from being so; but when the will power is weakened, although the mentality is not at all or only slightly impaired, the fear of punishment must be of some value as a restraint, and the class of people referred to need that restraining influence most. "There are doubtless some cases, like that in Hadfield's case, 27 How, St. Tr. 1281, in which the fear of punish- ment does not restrain, but where the rule works manifest injustice the unfortunate defendant is in some way saved from punishment." 39 INSANE DELUSION. In cases of partial insanity, where the accused person is subject to delusion, he is judged as if the facts with respect to which the delusion exists were real. To illus- trate: One H, under the influence of his delusion, imag- ines his wife is trying to poison him, and slays her. If these vagaries were real they would not justify the homi- cide, hence H is guilty of murder. 40 INSANITY FROM DRUNKENNESS. It is a well settled rule that voluntary intoxication is no excuse for crime ; and insanity, produced by intoxica- tion does not destroy responsibility for criminal acts when the party while sane and responsible voluntarily renders ss People v. Clendenin, 91 Cal. 35; People v. Barthleman, 120 Cal. 11; People v. Kerrigan, 73 Cal. 225; People v. McCarthy. 115 Cal. 255; People v. Ward, 105 Cal. 335; People v. Hubert, 119 Cal. 223; People v. Owens, 123 Cal. 482; People v. Pico, 62 Cal. 54; People v. Hoin, 62 Cal. 120; People v. Kerraghan, 72 Cal. 617; People v. Goldsworthy, 130 Cal. 600; People v. Methever, 132 Cal. 332. 39 People v. Hubert, 119 Cal. 223. 40 People v. Hubert, 119 Cal. 223. 40 CRIMINAL LAW AND PROCEDURE. himself intoxicated. 41 But this is not true where the accused person was drugged or rendered drunk and unconscious against his will. It is, however, equally well established that when drunkenness has become confirmed and habitual, so as to produce permanent and total insan- ity, it affects the legal responsibility as other insanity. The deduction from the cases is that voluntary intoxica- ion does not excuse ; but that fixed insanity, though result- ing from an abuse of intoxicants, does. 42 It must, how- ever, be settled insanity, and not merely a temporary con- dition produced by recent use of intoxicating liquors. 43 PRESUMPTION OF SANITY. The law presumes sanity, and places the burden of prov- ing insanity on the accused. It is not sufficient that there arise a reasonable doubt as to the sanity of the defendant, for it is an affirmative defense, and he must establish it by a preponderance of evidence. 44 When temporary or spas- modic insanity is proved to have existed prior to the com- mission of the criminal act, there is no presumption of its continuance down to the specific time of the criminal act. To establish the basis of a presumption that insanity, once shown to have existed, continues to exist, it must appear to have been of such duration and character as to 41 Penal Code 22; People v. Williams, 43 Gal. 344; People v. Jones, 63 Gal. 169; People v. Lewis, 36 Gal. 531; People v. Blake, 65 Gal. 275; People v. Franklin, 70 Cal. 643; People v. Ferris, 55 Cal. 592. 42 People v. Travers, 88 Cal. 233; People v. Fellows, 126 Cal. 239; People v. Findley, 132 Cal. 301. 43 People v. Findley,! 132 Cal. 307. 44 People v. Messersmith, 57 Cal. 575; People v. Ferris, 55 Cal. 558; People v. Ward, 105 Cal. 335; People v. Coff- man, 24 Cal. 230; People v. McNulty, 93 Cal. 433; Peo- ple v. Wilson, 49 Cal. 14; People v. Pico, 62 Cal. 56; People v. Travers, 88 Cal. 238; People v. Bawden, 90 Cal. 199; People v. Bemmerly, 98 Cal. 304; People v. Hettick, 126 Cal. 425; People v. Allender, 117 Cal. 81; People v. McCarthy, 115 Cal. 255; People v. Ebanks, 86 Cal. 295; People v. Bushton, 80 Cal. 160; People v. McDonell, 47 Cal. 134; People v. Hamilton, 62 Cal. 284; People v. Elliott, 80 Cal. 296; People v. Myers, 20 Cal. 518; People v. Marshall, 59 Cal. 386; People v. Smith, 59 Cal. 608; People v. Cheong Foon Ark, 61 Cal. 529; People v. Schmidt, 106 Cal. 84; People v. Bell, 49 Cal. 485; People v. Wreden, 59 Cal. 392. PARTIES TO CRIMES. 41 indicate the probability of its continuance, and not simply the possibility or even probability of its recurrence. 45 IGNORANCE OF FACT. As a general rule, a person who has done an act which is criminal cannot defend himself by reason of his igno- rance of the law. The law is administered upon the princi- ple that every one must be conclusively taken to know it without proof that he does know it. But ignorance or mistake of facts does excuse. Whenever a person com- mits the act or makes the omission charged in ignorance of the facts which bring such an act or omission within the provisions of the law, he is excused, because he has neither criminal intent nor will. 46 COERCION. The command of a master to his servant, principal to his agent, or parent to child will not justify a guilty act done in pursuance of it. 47 And coercion will in no case excuse a felony, but married women acting under the threat, command or coercion of their husbands are justi- fied in the commission of misdemeanor. 48 PARTIES TO CRIMES PRINCIPALS AND ACCESSORIES. Parties to crime are classed as principals and accessories. The distinction between them, however, no longer depends on the presence or absence of the accused at the commis- sion of the crime, but on whether his incriminating acts were before or after the completion of the offense. Thus, the distinction existing at common law between. an acces- sory before the fact and a principal, and between princi- pals of the first and second degree, in cases of felony, has been abrogated. 49 45 People v. Findley, 132 Cal. 307; People v. Travers, 88 Cal. 239. 46. People v. Burns, 75 Cal. 630. *7 People v, Richmond, 29 Cal. 415. 48 Penal Code 26. 49 People y. Bearss, 10 Cal. 688; People v. Hodges, 27 Cal. 340; People v. Outeveras, 48 Cal. 19; People v. Rozelle, 78 Cal. 89; People v. Cullum, 122 Cal. 187. 42 CRIMINAL LAW AND PROCEDURE. PRINCIPALS. Those concerned in the commission of a crime, whether directly by committing the act or aiding and abetting therein, or indirectly, by advising and encouraging its com- mission, are principals. And all persons who counsel, advise, encourage or compel those without criminal capac- ity, of occasion the drunkenness of another to cause him to commit any crime, are principals in any crime so com- mitted. 50 All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are treated in all respects as principals. 51 AIDING AND ABETTING. But to constitute a principal there must be both an aid- ing and abetting. 52 Mere presence at the commission of a crime or neglect to prevent the same is not sufficient. 53 Even aiding and assisting without guilty knowledge or felonious intent is not criminal ; 54 but one who aids and abets a felony is guilty of any other crime that may be committed in pursuance of that purpose. 55 But the rule is otherwise in misdemeanors, and he is not liable in aid- ing and abetting a misdemeanor for the commission of a felony not involved in nor incidental to the crime encour- aged. 56 ACCESSORIES. Are those who, after knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged with, or convicted thereof. o Penal Code 31. si People v. Davidson, 5 Cal. 134; People v. Bearss, 10 Cal. 68; People v. Newberry, 20 Cal. 441; People v. Outeveras, 45 Cal. 26; People v. Ah Fat, 48 Cal. 61; People v. Rozelle, 78 Cal. 84; People v. Gallagher, 100 Cal. 466; People v. Ah Len, 98 Cal. 133. 52 People v. Dole, 122 Cal. 492; People v. Compton, 123 Cal. 412. 53 People v. Woodward, 45 Cal. 293; People v. Lelth, 52 Cal. 251; People v. Ah Ping, 27 Cal. 491. * People v. Warren, 130 Cal. 678; same case, 130 Cal. 683. 5* People v. Majors, 65 Cal. 138; People v. Vasquez, 49 Cal. 560; People v. Keefer, 65 Cal. 232. * People v. Keefer, 65 Cal. 232. PARTIES TO CRIMES. 43 The word "conceal" here means more than simply with- holding knowledge possessed by a party that a felony has been committed. There must be some positive and affirm- ative act of concealment. Mere silence after knowledge, is not sufficient to constitute an accessory. And "charge" imports a formal complaint in some legal proceeding filed against the criminal. Mere general rumors and common talk that a party has committed a felony is wholly insuf- ficient. 57 Thus, one who aids in disposing of the body of the murdered person is an accessory. 58 TRIAL OF ACCESSORIES BEFORE THE FACT. At common law accessory before the fact could not be tried or convicted without the previous trial and convic- tion of his principal. The acquittal of the principal dis- charged the accessory, who could not be afterward tried without his own consent. The legal guilt of an accessory depended upon the guilt of the principal, which could be established only on a prosecution against him. But since an accessory before the fact is now for all purposes a prin- cipal, he may be tried, convicted and punished as such, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted. 59 57 People v. Garnett, 129 Cal. 366. 58 People v. Reefer, 65 Cal. 232. People v. Bearss, 10 Cal. 68; People v. Newberry, 20 Cal. 440. CHAPTER II. JURISDICTION. Jurisdiction to try crimes depends upon two facts; or rather, is divided into two parts: the territorial jurisdic- tion of the court or the boundaries within which a court of general- jurisdiction may act, and the power or authority of the court to try particular offenses within such terri- torial jurisdiction* . , OF. THE LOCALITY. Those liable to punishment under the laws of this state are: (i) All persons who commit, in whole or in part, any crime within this state; (2) AH who commit larceny or robbery ot;t of this state and bring to, or are found with the property stolen, in this state; and (3) All who, being out of this state, cause or aid, advise or encourage, another person to commit a crime within this state, and are afterward found therein. 1 This embraces all persons punishable under the laws of this state. 2 FEDERAL JURISDICTION. Crimes committed in this state, which are by law cog- nizable exclusively in the courts of the United States, are not liable to punishment here. 3 The mere ownership by the United States of land or property within the state does not show any federal jurisdiction over crimes committed upon it, as that fact does not oust the jurisdiction of the state; but ownership must be acquired by purchase with the consent of the legislature, which does not include the acquisition of property by eminent domain, even when 1 Penal Code 27. 2 People v. Botkin, 132 Cal. 232. s Penal Code 777. JURISDICTION. 45 that proceeding is authorized by the legislature. 4 State courts have jurisdiction of a prosecution of an Indian, when not a member of a recognized tribe having a ckief and tribal laws. 5 The jurisdiction of the federal court is a matter of defense and must be shown by the defendant. 8 OFFENSES PARTLY COMMITTED OUT OF STATE. When the commission of a public offense, commenced without the state, is consummated within its boundaries, the defendant is liable to punishment in this state, though he was out of the state at the time of its commission. If consummated here through the intervention of an agent, or any other means proceeding directly from him- self, the jurisdiction is in the county where consummated. 7 Thus in treason, where the overt act is committed out of the state, jurisdiction is in any county of the state; 8 and when property is stolen in another state, or is received with knowledge that it was stolen and brought into this state, jurisdiction is in any county into or through which such stolen property has been brought ; 9 but this does not apply to property stolen in a foreign country. 10 Courts of this state have jurisdiction to punish inhabitants of the state who, by previous appointment fight, or are concerned as seconds, in a duel out of the jurisdiction of the state, or who leave the state for the purpose of evading the operation of the laws of this state in relation to duel- ing. 11 CRIMES COMMITTED IN TWO OR MORE COUNTIES. Where a public offense is committed in' part in one county and in part in another, or the; acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, 12 or on the bound- * People v. Collins, 105 Cal. 504. r - People v. Ketchum, 73 Cal. 635. ' People v. Collins, 105 Cal. 504; People v. Fredericks, 106 Cal. 557. - Penal Code 778; Ex parte Hedley, 31 Cal. 108. s Penal Code 788. 9 Penal Code 789; People v. Staples, 91 Cal. 27. 10 People v. Black, 122 Cal. 73. 11 Penal Code 779-780. 12 People v. Murphy, 51 Cal. 376. 46 CRIMINAL LAW AND PROCEDURE. ary of two or more counties, or within five hundred yards thereof, 13 the jurisdiction is in either county. 14 Where it is committed in this state on board a vessel navigating a river, bay, slough, lake, or canal,, or lying therein, in the prosecuting of her voyage, 15 or on a railroad train or car prosecuting its trip, 16 the jurisdiction is in any county through which the vessel is navigated in the course of her voyage or the train or car passes in the course of its trip, or in the county where the voyage or trip terminates. 17 Jurisdiction for kidnapping, child stealing, taking away a female of previous chaste character for purposes of pros- titution and abduction, is in the county in which the offense is committed, or out of which the person upon whom the offense was committed may, in the commis- sion of the offense, have been brought, or in which an act was done by the defendant in instigating, procuring, pro- moting or aiding in the commission of the offense, or in abet- ting the parties concerned therein. 18 Bigamy or incest is pun- ishable in the county in which committed or in which the defendant is apprehended. 19 When property taken in one county by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction of the offense is in either county. 20 But the indictment or information should charge the facts which give the latter county juris- diction. 21 Jurisdiction of criminal actions for escaping from prison is in any county in the state 22 In prosecu- tions for murder or manslaughter, when the injury which caused the death was inflicted in one county, and the party 13 People v. Alviso, 55 Cal. 283; People v. Velarde, 59 Cal. 459. i* Penal Code 781 and 782. i? People v. Dougherty, 7 Cal. 398. ic People v. Moore, 103 Cal. 510; People v. Webber, 133 Cal. 23. IT Penal Code 783. is Penal Code 784. i Penal Code 785. 20 Penal Code 786; People v. Salorse, 62 Cal. 139; People v. Scott, 74 Cal. 95; People v. Mellon, 40 Cal. 648; Peo- ple v. Staples, 91 Cal. 27; People v. Jochinsky, 106 Cal. 640; People v. Garcia, 25 Cal. 531. 21 People v. Scott, 74 Cal. 95; People v. Ah Own, 39 Cal. 604. 22 Penal Code 787. JURISDICTION. 47 injured dies in another county or out of the state, the jurisdiction is in the county where the injury was inflicted. - :i An accessory is punishable where his offense was committed, notwithstanding the principal offense was committed in another county, 24 and a principal who was not present at the commission of the principal offense, at the same place as if he were so present and aiding and abet- ting therein. 25 CONVICTION A BAR. Where an act charged as a public offense is within the jurisdiction of another state or country, as well as of this state, or is within the jurisdiction of two or more counties of this state, a conviction or acquittal thereof in the other state or country, or in one of such counties of this state, is a bar to a second prosecution or indictment therefor in this state. 26 TIME OF COMMENCING CRIMINAL ACTIONS. There is no limitation of time within which a prose- cution for murder, the embezzlement of public moneys, and the falsification of public records must be com- menced. 27 An indictment must be found, or an informa- tion filed for any other felony within three years, 28 and for a misdemeanor within one year after its commission. 29 But if, when the offense is committed, the defendant is out of the state, the indictment may be found or an infor- mation filed within the term limited after his coming within the state. 30 No time during which the defendant is not an inhabitant of, or actually residing within the state is a part of the limitation. 31 Absence from the state must be alleged in the indictment, if relied on to take the 23 Penal Code 790. 24 Penal Code 791. 25 Penal Code 792. 26 Penal Code 793-794. 27 Penal Code 799. 28 Penal Code 800. 29 Penal Code 801; People v. Salorse, 62 Cal. 142; People v. Ayhens, 85 Cal. 86. so Penal Code 802. 31 Penal Code 802; People v. Ayhens, 85 Cal. 86; People v. Miller, 12 Cal. 291. 48 CRIMINAL LAW AND PROCEDURE. offense out of the statute. Prima facie lapse of time is a good defense. 32 The bar of the statute is imperative and mandatory and continuances of the preliminary examina- tion, granted at the request of the defendant, do not waive it. Information as here used means the accusation filed by the district attorney in the Superior Court, and not the complaint with the justice of the peace. 33 The provision is liberally construed in favor of the defendant and under an indictment for a felony there can not be a conviction of a misdemeanor, committed more than one year prior to its filing, although included in the crime charged. 34 OF COURTS. Consent will not confer jurisdiction to try th defendant for a crime not alleged in the indictment, 35 nor does juris- diction attach where the court is npt legally constituted. A void conviction is simply coram non fudice, 36 and the defendant will be released on a writ of habeas corpus where the conviction is by a court without legal exist- ence. 37 A de facto officer cannot exist unless there is a legal office. 38 But a court has jurisdiction to try a con- vict who has been produced for trial upon an illegal order. 39 Jurisdiction of courts of general jurisdiction is presumed in the absence of a showing to the contrary. 40 But there is no presumption in favor of the jurisdiction of inferior courts of limited jurisdiction. 41 And it will be presumed that the judge of another court who presided at the trial in a Superior Court, without objection, was act- ing rightfully. 42 Jurisdiction of the court is determined 32 People v. Mfller, 12 Cal. 291. 33 People v. Ayhens, 85 Cal. 86. s* People v. Picetti, 124 Cal. 361. 35 People v. Granice, 50 Cal. 447. 3fi Ex parte Giambonini, 117 Cal. 573; Crew v. Pratt, 119 Cal. 149. 37 Ex parte Giambonini. 117 Cal. 577. SB Ex parte Giambonini, 117 Cal. 577; People v. Toal, 85 Cal. 333; Buck v. Eureka, 109 Cal. 513. 30 Ex parte Clark, 85 Cal. 203. 40 People v. Mellon, 40 Cal. 68. 41 Ex parte Kearny, 55 Cal. 212. 42 People v. Ah Lee Doon, 97 Cal. 171; People v. Mellon, 40 Cal. 648. JURISDICTION. 49 by the grade of the offense charged in the indictment, and not by that on which a conviction is had. 43 But on appeal the jurisdiction of the Supreme Court is determined by the offense of which the defendant is convicted. 44 Thus the Supreme Court has no appellate jurisdiction of the crime where the conviction of the crime for which the defendant was sentenced is of less degree than a felony. 45 And its jurisdiction is lost by sending down the remittitur where there has been no mistake of fact, or fraud prac- ticed. 46 On reversal of an order granting a new trial, the Superior Court has only jurisdiction to render an appro- priate judgment on the verdict. 47 The Superior Court has original jurisdiction in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for, 48 but has jurisdiction of crimes which may be punishable either as a felony or misdemeanor, such as obtaining money by false pretenses, 49 assault by means likely to produce great bodily injury, 50 public nuisance injurious to health. 51 The presentation of a misdemeanor by indictment does not give the Superior Court jurisdiction. 52 Objections to jurisdiction must be taken by demurrer or plea. They cannot be taken by motion to set aside the indictment or information. 53 A void penalty clause, independent of the law and severed from the declaratory act, does not destroy People v. Holland, 59 Gal. 364. 44 People v. Cornell, 16 Cal. 187. 45 People v. Applegate, 5 CaL 295; People v. Shear, 7 Cal. 140; People v. Vick, 7 Cal. 165; People v. Johnson, 30 Cal. 101; People v. Apgar, 35 Cal. 390. 46 People v. McDermott, 97 Cal. 247. 47 People v. Woods, 84 Cal. 441. 48 in re Grosbois, 109 Cal. 445; Green v. Superior Court, 78 Cal. 556; People v. Joselyn, 80 Cal. 544; In Matter of Marks, 45 Cal. 199; People v. Lawrence, 82 Cal. 182; T^V po ,-to Wallinpford, 60 Cal. 103; Gafford v. Bush, 60 Cal. 153; Ex parte Noble, 96 Cal. 362. C. C. P. Sec. 76. 49 Ex parte Neustadt, 82 Cal. 273; People v. Hamberg, 84 Cal. 468. so People v. Fahey, fi4 Cal. 342. si In matter of Kurtz, 68 Cal. 412. 52 EX parte Waliingford, 60 Cal. 103; Green v. Superior Court, 78 Cal. 556. 53 People v. More, 68 Cal. 500; People v. Beach, 122 Cal. 38. CRIMES--* 50 CRIMINAL LAW AND PROCEDURE. jurisdiction to try for the offense, 54 nor does the fact that the time of the offense is not set forth in the complaint affect the jurisdiction of the court. 55 The sessions of the court are the times during which the court is, in fact, held at the place appointed, and engaged in business; and the recesses are the times in which the court is not actually engaged in business. There are no terms of court in this state. 38 It is but one court although divided into depart- ments. The jurisdiction of causes is vested by the con- stitution in the Superior Court and not in any particular judge or department thereof, although there may be as many sessions of the court at the same time as there are judges. The division into departments is purely imagin- ary and for the convenience of business. 57 It has power to adjudicate on Sunday the fact that the jury cannot agree, and continue the cause. 58 VENUE. The venue must be proved, 59 but proof that the crime was committed in a particular city is sufficient. 60 The court will take judicial notice that the place where the trial is held is the county seat, and situated within the county where the offense is shown to have been committed, 61 and also of the streets and numbers, 62 and of the name of the county seat. 63 The proof of venue may be made indi- rectly. 64 Thus where the testimony shows that the deceased resided in the county, and is plainly implied that she resided at the house in front of which her body was found, and into which it was carried, the venue is suffi- 54 Ex parte Stephen, 114 Cal. 278. so Ex parte Ah Sing, 87 Cal. 423. 56 in re Gannon, 69 Cal. 541; Falltrick v. Sullivan, 119 Cal. 616. 5T White v. Superior Court, 110 Cal. 60; Brown v. Camp- bell, 110 Cal. 648. 58 People v. Lightner, 49 Cal. 226. 59 People v. Roach, 48 Cal. 382. so People v. Loui Tung, 90 Cal. 377. i People v. Faust, 113 Cal. 172. 62 People v. Ellsworth, 92 Cal. 594; People v. McGregar, 88 Cal. 140. 63 People v. Etting, 99 Cal. 577. 64 People v. Smith, 121 Cal. 356. JURISDICTION. 51 ciently proved. 65 But the locus delicti must be proved in the county charged. 66 And where the place of the trial is the wrong county the court should arrest the judgment on its own motion. 67 An accessory may be tried in the county in which his offense was committed, notwithstand- ing the principal offense was committed elsewhere. 68 65 People v. Kamaunu, 110 Cal. 609. ee People v. Parks, 44 Cal. 105; People v. Roach, 48 Cal. 382; People v. Bevans, 52 Cal. 471. 67 People v. Hodges, 27 Cal. 340. s People v. Hodges, 27 Cal. 340; People v. Stakem, 40 Cal. 602. CHAPTER III. CONSTITUTIONAL RIGHTS OK THE DBKENDANT. No person can be convicted of a crime in this state except: (i) By a verdict of a jury; (2) on his own con- fession in open court; (3) by judgment of an authorized court, when he refuses to plead after his demurrer is dis- allowed; (4) and by judgment of an authorized court in cases not amounting to a felony, where he has waived a jury. 1 The humanity of the law provides that a person accused of a crime is guaranteed certain rights, among which are the right to a speedy and public trial by a jury; to appear in person and by counsel, and be con- fronted with the witnesses against him ; to a reasonable bail, except in cases of murder where the proof is evident and presumption great; that he shall not be twice put in jeopardy for the same offense, or compelled to be a witness against himself, nor to be deprived of life, liberty, or prop- erty without clue processs of law. la SPEEDY TRIAL. A defendant is entitled to a speedy trial. 2 A speedy trial does not mean at once, but with all convenient dis- patch. It implies a reasonable time for the state to pro- vide courts and juries and to procure witnesses. 3 Unless good cause to the contrary is shown, the court must order the prosecution dismissed, whenever the indictment is not found or an information filed against a person within thirty days after he has been held to answer on a public offense; or where the accused, whose trial has not been 1 Penal Code, 689, 1011. laConstitution, Art. I, Sees. 6, 7 and 13. 2 Penal Code 686. 3 People v. Buckley, 116 Cal. 152. CONSTITUTIONAL RIGHTS OF DEFENDANT. 53 postponed at his own request, is not brought to trial within sixty days after the filing of the indictment or information. 4 In either case there must be good cause shown for delay or the accused is entitled to be dis- charged. The statute is imperative. The court has no discretionary power to deny a right of such importance or to prolong his imprisonment without such trial beyond the time provided by law. 5 The defendant is not entitled to a dismissal, however, when the delay is caused by the court being engaged on the trial of another case 6 which has precedence, 7 or is granted at the request of the defendant, 8 or is caused by defendant's appeal, 9 or continued by rea- son of the illness of the judge, 10 or by a mistrial. 11 The delay must be without just excuse to entitle to a dis- missal. 12 The defendant must demand a dismissal, and he waives it by going to trial without objection. 13 But a failure to bring to trial within the sixty days after a remittitur is filed is not ground for dismissal. 14 It is the duty of the prosecution diligently to prosecute the case against the defendant. The declaration of rights in the constitution is a command and limitation of power upon state officials by the people who created the formal government. The requirement of the statute of trial within sixty days is to be regarded as a construction of the constitutional guarantee of a speedy trial. Its effect must be held to be that an unexcused delay of sixty days, at any time, to try a defendant, who does not consent to the delay, entitles him to have the prosecution dismissed. It is suffi- * Penal Code, 1382. B People v. Morino, 85 Cal. 515. e People v. Henry, 77 Cal. 445; People v. Benc, 130 Cal. 159. 7 People v. Vasalo, 120 Cal. 168. s People v. Cline, 74 Cal. 577. People v. Lundin, 120 Cal. 308. i 2 People v. Tinder, 19 Cal. 539; Ex parte Brown, 68 Cal. 177. CONSTITUTIONAL RIGHTS OF DEFENDANT. 67 too great to entitle him to bail as a matter of right under the constitution. It creates a presumption of guilt for all purposes except the trial before the jury. If it does not furnish such a presumption it will not justify the exaction of bail or the detention of the defendant. And the finding of; the grand jury cannot be reviewed on an application for bail or its effect, in creating such a presumption, repelled by affidavits or oral testimony as to guilt or innocence. 1 " After an examination before a magistrate where the evi- dence adduced will support a conviction, 154 or the evidence is such that it cannot be said that a verdict requiring a capital sentence thereon should not be permitted to stand, the application for bail should be denied. 155 But in mur- der cases after indictment where the intent to kill is not shown, bail should be allowed. 156 Upon arrest the pris- oner must be taken before a magistrate in the county where the warrant was issued, 157 and where the offense is not punishable with death he may be taken before the mag- istrate in the county in which the warrant is issued or in which he is arrested, for the purpose of getting bail. But he cannot in any case be taken before the magistrate of another county. 158 It is not necessary for the defendant to sign the bail bond, 159 nor need it have the endorsement of approval if the sureties justify. 180 TAKING IN CUSTODY AFTER ADMISSION TO BAIL. Upon the finding of an indictment for a felony against a person released on bail, taken before the finding of the indictment upon the examination before the magistrate, he may be arrested on a bench warrant and required to give bail in the Superior Court. 161 It is proper for the court to order the defendant into custody as soon as the trial is 153 People v. Tinder, 19 Cal. 542. 154 in the Matter of Troia, 64 Cal. 152. iss EX parte Curtis, 92 Cal. 188. ise EX parte Wolff. 57 Cal. 94. 137 Ex parte Hung Sin, 54 Cal. 102; People v. Fick, 89 Cal. 144. ir.s Mansir v. Superior Court, 65 Cal. 582. "'' People v. Love, 19 Cal. 677. to People v. Penniman, 37 Cal. 271. lei Ex parte Cook, 35 Cal. 107. 68 CRIMINAL LAW AND PROCEDURE. commenced, 162 and it is the duty of the court to order the defendant into custody upon the retirement of the jury to insure his presence if convicted. 183 AMOUNT OF BAIL. The sole purpose of requiring bail is to cause the appear- ance of the accused to answer the charge against him. And the extent of the pecuniary ability of a prisoner to furnish bail is a circumstance among other circumstances to be con- sidered in fixing the amount, but is not in itself con- trolling. 164 The amount of bail is usually within the dis- cretion of the court or magistrate fixing it, 165 and will not be reviewed by an appellate court unless it clearly appears that the amount fixed is excessive per se. 166 BAIL AFTER CONVICTION. After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail : (i) as a matter of right when the appeal is from a judg- ment imposing a fine only; and (2) as a matter of discre- tion in all other cases. 167 When the admission to bail is a matter of discretion, the court or officer to whom the appli- cation is made must require reasonable notice thereof to be given to the district attorney of the county. 168 After an indictment, for the purposes of bail, a presumption of guilt arises against the defendant. 169 It arises for all purposes except for that of a trial before a jury. 170 Bail after con- viction is a matter of discretion, not of right, and is gen- erally not allowed ; 171 and in felony cases should be granted 162 People v. Williams, 59 Cal. 674. les people v. Beauchamp, 49 Cal. 41. is* Ex parte Duncan, 54 Cal. 75. IBS People v. Duncan, 54 Cal. 75. lee in re Williams, 82 Cal. 183; Ex parte Duncan, 54 Cal. 75. 167 Penal Code 1272. 168 Penal Code 1274. i (i " Ex parte Ryan, 44 Cal. 553; In re Williams. 82 Cal. 183; Ex parte Duncan, 54 Cal. 75. 170 People v. Tinder, 19 Cal. 542. 171 Ex parte Brown, 68 Cal. 176; Ex parte Smith, 89 Cal. 79; Ex parte Turner, 112 Cal. 629; People v. Perdue, 48 Cal. 552; People v. January, 70 Cal. 35; Ex parte Voll. 41 Cal. 31; Ex parte Hoge, 48 Cal. 5; Ex parte Smallman, 54 Cal. 36. ARSON. 69 only under circumstances of an extraordinary character."* It should be granted when it appears that the imprison- ment would result in death. 173 Application for bail after conviction should be made in the first instance to the trial court, 174 and it will not be granted by the Supreme Court in the first instance. 175 i'^ Ex parte Smith, 89 Cal. 79; Ex parte Turner, 112 Cal. 629; Ex parte Marks, 49 Cal. 680; People v. Booker, 51 Cal. 317; Ex parte Smallman, 54 Cal. 36; Ex parte Brown, 68 Cal. 183; People v. Marshall, 59 Cal. 386. i" EX parte Azhderian, 123 Cal. 512. 174 People v. Perdue, 48 Cal. 552. ITS People v. January, 70 Cal. 34; Ex parte Turner, 112 Cal. 629. SPECIFIC CRIMES, CHAPTER IV. ABDUCTION. [Penal Code, sees. 265, 267.] DEFINED. Is the taking- of a woman unlawfully, against her will, and by force, menace or duress compelling her to marry or be defiled. 1 But the crime most often encountered is the taking away of a female under the age of eighteen years from her father, mother, guardian or other person having the legal charge of her person without their consent for the purpose of prostitution. 2 If with the consent of the legal custodian, or there is no legal custodian, the crime is seduction under Penal Code, section 266. PURPOSE OF THE LAW. The statute against the abduction of females under eighteen years from their custodians is intended to pro- tect the chaste and reclaim the erring; to protect parents and guardians in the custody and care of minors. 3 THE TAKING. While the taking is a material ingredient of the offense, it may be accomplished when the girl is merely induced, or yields to the persuasion of the defendant to go with him. Her consent is immaterial and no defense. No matter how willingly she may go, the crime is committed if she is taken without the consent of her legal custodian. No force or violence need be used. 4 1 Penal Code 265. 2 Penal Code 267 s People v. Demousset, 71 Cal. 612; People v. Fowler, 88 Cal. 136; People v. Cook, 61 Cal. 478. * People v. Demousset, 71 Cal. 613; People v. Marshall, 59 Cal. 386; People v. Cook, 61 Cal. 478; People v. Fow- ler, 88 Cal. 136. 72 CRIMINAL LAW AND PROCEDURE. LEGAL CUSTODIAN Is the person having actual custody of the child. The father has by law the legal charge of the persons of his children unfil they arrive at the age v of majority. 5 But when the minor female is in the custody of her mother, the mother is legally in charge of the person of her daughter, and it is no defense that the father had the better right to the custody. 6 And the crime is consummated even when the female under age has abandoned her home and fled from her guardianship, for she is in contemplation of law in charge of her father. 7 PREVIOUS UNCHASTITY. The gist of the offense is the taking away of the child against the will of her lawful custodian for the purpose of prostitution, and it is immaterial that she had been pre- viously unchaste. 8 KNOWLEDGE OF AGE. It is likewise no defense that the defendant did not know the girl was under age. One who violates the stat- utes acts at his peril and cannot defend, himself on the plea of ignorance as to the age of the child. 9 EVIDENCE. The family Bible may be introduced to prove the age of the female. 10 It is not necessary that there should be express testimony to show that the purpose of the taking was to make the girl a prostitute, but the accused is to be judged by acts rather than words. 11 Evidence that the girl was taken by a procuress to a house of prostitution, ostensibly to work as a domestic without disclosing to the girl or to her father the character of the place, is suffi- '> People v. Cook, 61 Cal. 478. People v. Fowler, 88 Cal. 136. T People v. Cook, 61 Cal. 478. 8 People v. Demousset, 71 Cal. 612; People v. Cook, 61 Cal. 478. o People v. Fowler, 88 Cal. 136. 10 People v. Slater, 119 Cal. 620. 11 People v. Marshall, 59 Cal. 386. ABDUCTION. 73 cient to warrant a conviction. 12 The proof of legal custody is required only when the child is taken from some person other than parent or guardian. 13 INDICTMENT. It is not necessary to allege that the defendant knew the girl was under eighteen years of age, nor that the mother had legal charge of her person. An allegation of the tak- ing from the person having legal charge is necessary only when the female is taken from a person other than parent or guardian. 14 PENALTY. For taking a woman unlawfully and by force, menace or duress, compelling her to marry or be defiled, imprisonment in the state prison from two to fourteen years. For taking a female under the age of eighteen years for the purpose of prostitution, -imprisonment in state prison not exceeding five years and a fine not exceeding one thousand dollars. FORM ABDUCTION. The said A B at the time and place aforesaid, a certain woman, to wit, C D, unlawfully, feloniously and against her will, did take and abduct, and her, the said C D unlawfully and feloniously by force, menace and duress, did compel to be defiled [or to marry him or some other person, naming him.] FORM MINOR FEMALE FOR PROSTITUTION. That the said A B did wilfully, unlawfully and felo- niously take away one R K, then and there being an unmar- ried female under the age of eighteen years, to wit, of the age of years, from and out of the custody of M K, her mother [or other legal custodian, stating it] without the consent and against the will of her said mother, for the purpose of prostitution. 15 12 Ex parte Estrado, 88 Cal. 316. 1 3 Same case. i* People v. Fowler, 88 Cal. 136; Ex parte Estrado, 88 Cal. 316. is Peop'.e v. Fowler, 88 Cal. 136. But it seems that when the female is taken from some one other than parent or guardian, there should be a further allegation that the person from whom she was taken had the legal custody. Ex parte Estrado. 88 Cal. 316. CHAPTER V. ABORTION. [Penal Code, sees. 274, 275.] DEFINED. It is the providing, supplying or administering, or pro- curing any pregnant woman to take any medicine, drug or substance, or the using or employing any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, when the same is not necessary to preserve her life j 1 or the soliciting of or taking any such medicine, drug or substance, or the submitting to such operation by a pregnant woman, with intent thereby to pro- cure a miscarriage, when the same is not necessary to pre- serve her life. 2 The woman is a competent witness to prove not only the fact of pregnancy, but all the circum- stances tending to show it. Her uncorroborated testimony is not sufficient to convict, but there need be no corrobora- tion of the particular method employed to produce the abortion. The essential element is the criminal intent and evidence tending to show such intent is a sufficient cor- roboration. 3 It is a misdemeanor to sell certain poisonous substances unless to be used for a legitimate purpose.* PENALTY. For procuring an abortion, imprisonment in state prison from two to five years ; for submitting to an abortion, from one to five years. 1 Penal Code 274. 2 Penal Code 275. a People v. Josselyn, 39 Cal. 393. * Statutes 1880, p. 102. ABORTION. 75 FORM FOR PROCURING ABORTION. Wilfully, unlawfully and feloniously did provide, supply and administer to one C D, a pregnant woman, a certain medicine, drug and substance [or used and employed upon one C D, a pregnant woman, a certain instrument, to wit: ] with intent thereby to procure the miscarriage of the said C D, the same then and there not being necessary to preserve the life of the said C D. FORM SUBMITTING TO ABORTION. Said C D, being then and there a pregnant woman, wil- fully, unlawfully and feloniously did solicit and take a cer- tain medicine, drug and substance [or submitted to an operation] with intent thereby to procure a miscarriage, the same then and there not being necessary to preserve the life of the said C D. ACID, see THROWING VITROL. CHAPTER VI. ADULTERY. [Statutes, 1871-2, p. 380.1 DEFINED. It is the offense of living in a state of open and notorious cohabitation and adultery and is a misdemeanor. 1 But if two persons, each being married to another, live in a state of open and notorious cohabitation and adultery, each is guilty of a felony. 2 A recorded certificate of marriage or a certified copy thereof, there being no decree of divorce, proves the marriage. Under this section the record of the marriage certificate being proved does not exclude other evi- dence in proof of the marriage. And evidence of witnesses may be introduced to that effect. 3 Adultery was not a crime at common law, nor is it under the statute. It is the living together in open and notorious cohabitation and adultery that is criminal. Mere adultery without the noto- rious cohabitation does not constitute the offense. 4 PENALTY. If a misdemeanor, a fine not exceeding one thousand dol- lars, or imprisonment in the county jail not exceeding one year, or both. If a felony, imprisonment in state prison not exceeding five years. FORM ADULTERY. That the said A B, between the day of , 190 , and the day of , 190 , did unlawfully, wilfully and feloniously live in a state of open and notorious cohabitation 1 People v. Gates, 46 Cal. 53. 2 Statutes, 1871-2, p. 380. a People Y. Gates, 46 Cal. 53. People v. Gates, 46 Cal. 53; Ex parte Thomas, 103 Cal. 497; White v. White. 82 Cal. 449. ADULTERY. 77 and adultery with one C D, and the said A B not being then and there lawfully married to the said C D. FORM WHERE EACH IS MARRIED. That between the day of - , 190 , and the day of - , 190 , the said A B being then and there married to a woman other than C D, did live in a state of open and notorious cohabitation and adultery with said C D, and the said C D being then and there married to another than the said A B, and the said A B and the said C D not being then and there lawfully married to each other. ADVERTISEMENTS, see TRESPASSES. CHAPTER VII. ARSON. [Penal Code, sees. 447-455.] DEFINED. Arson is the wilful and malicious burning of a building with intent to destroy it. 1 WHAT CONSTITUTES A BUILDING. Arson as defined by the common law, is an offense against the security of a habitation rather than against the prop- erty which was burned ; but under the code the scope of the definition is materially extended. Any house, edifice, struc- ture, vessel or other erection capable of affording shelter to human beings, is a building within the meaning of the code. It is not necessary that such an erection had been intended or used as a habitation. It is sufficient if it is capable of affording shelter for human beings ; 2 or is appurtenant thereto or connected with an erection so adapted. 3 Thus where a fire was set to a wine cellar so near to the dwelling house that the flames necessarily com- municated with and destroyed the dwelling, it was held to be a burning of the dwelling. 4 OWNERSHIP. A person cannot be guilty of arson in burning his own property unless there be a qualified property in another. A building to be the subject of arson must be at least in the possession or occupancy of another at the time of the 1 People v. Fong Hong, 120 Cal. 685; People v. Mooney, 127 Cal. 339. 2 People v. Fisher, 51 Cal. 320. 3 Penal Code 448; People v. Russell, 81 Cal. 617. 4 People v. Hiltel, 131 Cal. 577. ARSON. 79 burning-. 5 But the ownership of title is immaterial when the possession and occupancy is in another ; 6 and in such cases the landlord may be guilty of arson in burning- the house. 7 Where occupied by a tenant, however, the build- ing may be considered as the property of the landlord where the offense is committed by a person other than the owner ; 8 and a burning by the tenant under such circumstances will be arson. 9 It seems that the husband may be convicted of arson for the burning of a building belonging to his wife. 10 THE BURNING. When the wood of the house is charred in a single place so as to destroy any of its fiber, the crime is complete, though there be no blaze and the fire is extinguished. But where the wood is only blackened and no fiber destroyed there is no burning within the meaning of the code ; u and the burning must be of the building or some part of it. 12 But this may be accomplished although the fire is set to another building from which the flames necessarily com- municated. 13 DEFRAUDING THE INSURER. While as has been seen, the burning of one's own house is not arson, yet the code has made it a felony to burn it with intent to defraud the insurer. 14 The guilt in such cases does not depend on the legal obligation of the policy, for the offense is complete if it appears that a policy was delivered, although it is invalid and no action can be main- 5 People v. Myers, 20 Cal. 76; People v. De Winton, 113 Cal. 407. > People v. Scott, 32 Cal. 200; People v. Wooley, 44 Cal. 494. - People v. Fong Hong, 120 Cal. 685. s People v. Fisher, 51 Cal. 321. a People v. Simpson, 50 Cal. 304. 10 People v. Hiltel, 131 Cal. 577. " People v. Haggerty, 46 Cal. 355. 12 People v. Simpson, 50 Cal. 304. is People v. Hiltel, 131 Cal. 577. i* Penal Code 548; People v. Schwartz, 32 Cal. 163; People v. Hughes, 29 Cal. 258. 80 CRIMINAL LAW AND PROCEDURE. tained upon it. 15 And the intent to defraud may be inferred from the fact of burning and the taking out of insurance. 16 INTENT TO DESTROY. intent to destroy is an essential ingredient of arson. It must clearly appear that the defendant had this specific intent and purpose, and that the building was burned to carry out such intent. 17 And the fact that the circum- stances of the case would also warrant a prosecution for burning the building to defraud an insurer does not affect the prosecution for arson. 18 DEGREES. Arson is divided in two degrees. 19 When the burning of an inhabited building takes place in the night time, in which there is at the time some human being, it is the first degree. 20 The jury must find the degree. 21 But when the indictment charges only the lower degree, the verdict need not specify the degree. 22 INDICTMENT. Indictment, in the language of the statute is sufficient. 23 It need not set out and describe the particular kind of building as specified in the code, nor that it was capable of affording shelter to human beings. 24 The degree need not be alleged, as it is a question of fact for the jury to determine from the evidence. 25 Where the charge is burn- ing with intent to defraud an insurer, it should allege the insurance company was a corporation, if such were the 15 People v. Hughes, 29 Cal. 258. is People v. Vasalo, 120 Cal. 168. IT People v. Mooney, 127 Cal. 339; People v. Fong Hong, 120 Cal. 685. is People v. Fong Hong, 120 Cal. 683. 19 Penal Code 453; People v. Coch, 53 Cal. 627. 20 Penal Code 454. 21 People v. Coch. 53 Cal. 627. 22 People v. Fisher, 51 Cal. 319. 2" People v. Russell, 81 Cal. 616; People v. Giacamella, 71 Cal. 48; People v. De Winton, 113 Cal. 408 24 People v. Russell, 81 Cal. 616; Peop'e v. Giacamella, 71 Cal. 48. People v. Russell, 81 Cal. 616. ARSON. 81 fact. 20 But a variance in the name of the company is not fatal to a judgment of conviction. 27 VENUE. It is sufficient if the defendant burned a building within the jurisdiction of the court; and it need not be alleged that at the time of the burning the building was in the county where the burning took place. 28 DESCRIPTION OF BUILDING. The object of a description is simply to identify the prop- erty, 29 and it is a sufficient identification if it be alleged that it was the property of A and formerly occupied by B, if the proof shows that B really occupied it but fails to show ownership in A. 30 DESCRIPTION OF OWNERSHIP. The indictment must show that it was the property of another unless such circumstances be alleged as will show it was in the possession and occupancy of another. 31 In which case it may be alleged to be in the person occupy- ing it as a residence. 32 And an allegation of partnership ownership will be sustained by proof of ownership of the partners as joint tenants or cotenants. 33 If the indicc- ment allege the name of the occupant it is enough. 34 And when the name of the occupant is set out, it is not neces- sary to allege the name of the owner of the title. 3R INTENT. The intent may be alleged by way of participles instead of by verbs, although the indictment might be improved by 26 People v. Schwartz, 32 Cal. 161. 27 People v. Hughes, 29 Cal. 258; People v. Schwartz, 32 Gal. 165. ' 2 8 People v. Wooley, 44 Cal. 494. 20 People v. Handley, 100 Cal. 370. so People v. Shainwold, 51 Cal. 468. si People v. De Winton, 113 Cal. 403. 32 People v. Handley, 100 Cal. 370; People v. Wooley, 44 Cal. 495. 33 People v. Greening, 102 Cal. 384. s* People v. Scott, 32 Cal. 200. 35 People v. Handley, 100 Cal. 370. CRIMES- -6 82 CRIMINAL LAW AND PROCEDURE. making direct and positive averments/' 10 And under the code it is not necessary to allege a setting on fire, but- only a burning. 37 Specific intent to destroy must be alleged. 38 EVIDENCE. It is immaterial to prove a motive, 39 yet threats against the owner of the building are admissible for this purpose. Also evidence tending to show that the defendant started former fires by which another building on the same prem- ises was burned. 40 In a charge of burning a building to defraud an insurance company it need not be proved that the policy of insurance was valid. 41 The intent to defraud may be inferred from the fact of burning and the exist- ence of insurance. 42 And it may be shown that the value of goods exceeded the value of insurance, but that does not amount to a defense. 43 Payment of rent to the land- lord may be shown to prove tenancy by occupant. 44 PENALTY. In the first degree imprisonment in state prison not less than two years. In the second degree, imprisonment in state prison from one to twenty-five years. FORM ARSON; A certain building, to wit, a dwelling house of one C D [or other building, describing it] there situate, did, unlaw- fully, wilfully, maliciously and feloniously burn, with intent to destroy the same. FORM BURNING INHABITED BUILDING. In the night time of said day, unlawfully, wilfully, maliciously and feloniously did . burn a certain inhabited building, to wit, the dwelling house of C D, there situate, se People v. Vasalo, 120 Cal. 168. 3? People v. Myers, 20 Cal. 76. as People v. Mooney, 127 Cal. 339; People v. tong Hong, 120 Cal. 685. 39 People v. Fong Hong, 120 Cal. 685. 40 People v. Lattimore, 86 Cal. 403; People v. Shainwold, 51 Cal. 468. n People v. Hughes, 29 Cal. 258. 4-' People v. Vasalo, 120 Cal. 168. 3 People v. Goldsworthy, 130 Cal. 600. '4 People v. Simpson, 50 Cal. 304. ARSON. 83 in which said dwelling house there was then and there a human being. FORM TO DEFRAUD INSURER. Unlawfully, wilfully, maliciously and feloniously did burn, injure, and destroy certain property, to wit, [describ- ing it] there situate, of the property of - , which said property was then and there insured against loss and dam- age by fire [or other casualty, stating it] by the - Insurance Company, a corporation, with intent then and there and thereby to defraud and prejudice said Insurance Company. CHAPTER VIII. ASSAULT. DEFINED. The subject of assault is intimately connected with that of criminal attempt. Assaults are of many degrees, vary- ing from the simple assault to the more aggravated forms, such as are included in forcible abduction, robbery, rape, and murder; these will be discussed under their appro- priate heads. Our code defines assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. 1 It will thus be seen that three elements are necessary to constitute this offense : (i) An intent to commit a violent injury; (2) the present ability; and (3) the actual attempt. 2 INTENT. The intent here necessary is only the intent to do the unlawful act, which is the ingredient of every crime. The drawing of the weapon, accompanied by a threat to use it, is sufficient to show intent. 3 It may be shown by threats and declarations made immediately after the attempt, 4 or by the circumstances surrounding the act, as throwing a person from the third story window, 5 or throwing vitriol upon another person, 6 or a forcible abduction. 6a An assault cannot be committed where the party acts in self-defense, 1 Penal Code 240; People v. Yslas, 27 Cal. 631; People v. Dodel, 77 Cal. 293. 2 People v. Lee Kong, 95 Cal. 666; People v. Yslas, 27 Cal. 631; People v. Dodel, 77 Cal. 293. s People v. McMakin, 8 Cal. 547. * People v. Yslas, 27 Cal. 630. s People v. Emmons, 61 Cal., 487. People v. Stanton, 106 Cal. 139. aa People v. Ah Own, 39 Cal. 604. ASSAULT. 85 for any act done in self-defense is not unlawful, and can never amount to an assault. 7 PRESENT ABILITY. The common law definition of an assault is substantially the same as that found in the code. It is not indispensable that the assailant should be at any time within striking dis- tance, if he is advancing with intent to strike his adver- sary, and come sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will instantly receive a blow, unless he strike in self- defense, or retreat. 8 To constitute an assault with a weapon it is necessary that the weapon should be presented at the party assaulted within the distance at which it may do execution. But present ability is shown where the assail- ant has a loaded pistol and the person intended to be fired at is within reach of its effect, notwithstanding he was mis- taken as to the exact spot where his intended victim was located at the time of firing. 9 The mere drawing a knife, without being near enough to strike the person with it, and without advancing towards him does not show a pres- ent ability. 10 ATTEMPT. The subject of attempt has been quite fully treated heretofore, and it is unnecessary to describe here what amounts, in law, to an attempt. An attempt is one of the essential elements of an assault. 11 But there must be something more than menaces, 12 or putting in fear, to con- stitute it. 13 There must be a violence begun to be exe- cuted, 14 or an attempt to strike or to use the weapon. 15 However, the drawing of a pistol on another, accompanied with a threat to use it, unless the other leave the spot, is ' People v. Lynch, 101 Gal. 220; People v. Dollor, 89 Cal. * 513. s People v. Yslas, 27 Cal. 630. People v. Lee Kong, 95 Cal. 669. 10 People v. Dodel, 77 Cal. 293. 11 People v. Devine, 59 Cal. 630. 12 People v. Yslas, 27 Cal. 634. is People v. Lee Kong, 95 Cal. 669. I* People v. Yslas, 27 Cal. 643. is People v. Dodel, 77 Cal. 293. 86 CRIMINAL LAW AND PROCEDURE. an assault, although the pistol was not pointed at the per- son threatened. Here the threat was conditioned, it is true, but the condition was present, not future, and the compliance demanded was immediate. Where a party puts in a condition which must be performed at once, and which he has no right to impose, and his intent is immediately to enforce performance by violence, and places himself in a position to do so, and proceeds so far as it is necesssary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck or shot at the other party and missed him. 16 A battery or wound- ing is no part of the offense. 17 But the acts which accom- pany the intent to commit the violence must be such as would, if not interrupted or avoided, result in violence to the person threatened. 18 The fact that the accused was interrupted and his intent rendered abortive because of an obstruction to him unknown at the time, does not render his act any the less an attempt. Thus where the defend- ant believing that a policeman was on the roof, fired a pistol at the spot with intent to kill, it is an attempt, although the officer was not at the spot when the shot was fired. 19 The assault is complete if the attempt is made, although it is interrupted or abandoned before an injury has actually occurred. 20 An assault made without the use of a deadly weapon with intent to do mere bodily harm is a misdemeanor. 21 But where it is made to commit a fel- ony, it is a felony without regard to the means resorted to in making such assault. 22 BATTERY. The offense of battery is the wilful and unlawful use of force or violence upon the person of another. 23 It is also, 16 People v. McMakin, 8 Cal. 547. IT People v. Keefer, 18 Cal. 637. is People v. Yslas, 27 Cal. 631. is People v. Lee Kong, 95 Cal. 666. 20 People v. Johnson, 131 Cal. 512. 21 People v. Murat, 45 Cal. 281; People v. Helbing, 61 Cal. 620; People v. Martin, 47 Cal. 112. 22 People v. Gordon, 70 Cal. 467; People v. Murat, 45 Cal. 281. 23 Penal Code 242. ASSAULT. 87 like assault, a misdemeanor, but is a greater offense than assault, and being the greater it includes the less ; but the less does not include the greater ; hence battery includes assault but assault does not include battery. 24 WITH DEADLY WEAPON. A deadly weapon is one likely to produce death or great bodily harm. 25 It includes a loaded stocking when pre- pared in such a manner as is likely to produce death. 2 * A knife may be such a weapon, 27 although sometimes whether a weapon be deadly, or otherwise, depends upon the manner in which it is used. 28 And an explosion by gunpowder may thus become a deadly weapon- The court will. not instruct the jury that the weapon used in making an assault, as a matter of law, is a deadly weapon, but leaves the question to the jury, after defining the term. 30 The weapon is the gist of the offense and distin- guishes assault with a deadly weapon from a simple assault. 31 The indictment must charge the facts which show the weapon used was deadly. 32 But it is sufficiently described if the facts are alleged from which the court may determine the character of the weapon. 33 But the intent to do harm need not be pleaded nor found. 34 And the charging that the defendant was armed with a deadly weapon and made an assault, is not an allegation that he made it with a deadly weapon, and will not support a con- 24 People v. Helbing, 61 Gal. 620. 25 People v. Puqua, 58 Cal. 245; People v. Franklin, 70 Cal. 643; People v. Leyba, 74 Cal. 408. 26 People v. Valliere, 123 Cal. 576. 27 People v. Franklin, 70 Cal. 641. 28 People v. Fuqua, 58 Cal. 245; People v. Rodngo, 69 Cal. 601. 29 People v. Pape, 66 Cal. 366. so People v. Rodrigo, 69 Cal. 601. 31 People v. Vanard, 6 Cal. 562. 32 People v. Jacobs, 29 Cal. 579; People v. Congleton, 44 Cal. 94; People v, Villarino, 66 Cal. 229; People v. Pape, 66 Cal. 367. 33 People v. Pape, 66 Cal. 366. 34 People v. Turner, 65 Cal. 540; People v. Mize, 80 Cal 44; People v. Forney, 81 Cal. 119; People v. Savercool, 81 Cal. 651. 88 CRIMINAL LAW AND PROCEDURE. viction of felonious assault. 35 The allegation that the defendant intended to commit an assault and had the pres- ent ability to do so, is unnecessary. 36 The assault may be committed, although no blow is struck. 37 VERDICT. The conviction on a charge of assault with a deadly weapon cannot be construed as a conviction of a simple assault. 38 But a charge of assault with a deadly ^weapon will support a verdict of assault with intent to do bodily harm. 39 However, on a charge of assault with a deadly weapon with intent to inflict great bodily injury, a verdict of guilty of an assault with a deadly weapon, is a convic- tion of a simple assault. 40 The defendant may be con- victed of any offense the commission of which is necessarily included in that with which he is charged. 41 A verdict that an assault was made with intent "to do bodily harm upon the person" of another is equivalent to a verdict that the assault was made with intent "to inflict upon the per- son of another a bodily injury." 42 And a verdict of guilty of an assault with a deadly weapon with intent to inflict bodily injury is a conviction of a felony, not a simple assault. 43 The offense of assault with a deadly weapon is necessarily included in a charge of an assault to commit murder ; and under an indictment charging the greater offense to have been committed with a deadly weapon, the defendant can be found guilty of the lesser. 44 But under an indictment for an assault to commit murder a conviction of an assault made with a deadly weapon to do 35 People v. Vierra, 52 Cal. 451. ss People v. Forney, 81 Cal. 118. 3- People v. Bird, 60 Cal. 7. ss People v. Arnett, 126 Cal. 680. 3 People v. Congleton, 44 Cal. 92; People v. Murat, 45 Cal. 284; People v. Villarino, 66 Cal. 229; People v. Pape, 66 Cal. 367. , 40 People v. Wilson, 9 Cal. 260. 41 People v. Holland, 59 Cal. 364; People v. Pape, 66 Cal. 367; People v. Gordon, 99 Cal. 227. 42 People v. Congleton, 44 Cal. 92. 43 People v. English, 30 Cal. 215. 44 People v. English, 30 Cal. 211; Ex parte Donahue 65 Cal. 474; People v. Bentley, 75 Cal. 403. ASSAULT. 89 bodily harm cannot be supported, unless it sufficiently appears upon the face of the indictment that the assault was made with a deadly weapon. 45 The Superior Court has jurisdiction of assaults with deadly weapons, and although the defendant may have been convicted of a sim- ple assault only, that court has jurisdiction to pronounce judgment for" the offense of which the defendant was con- victed. 40 PENALTY. Assault, fine not exceeding five hundred dollars, or by imprisonment in county jail not exceeding three months. Assault with deadly weapon, imprisonment m state prison or county jail not exceeding two years, or fine not exceed- ing five thousand dollars, or both. Assault with intent to commit murder, rape, the infamous crime against nature, mayhem, robbery, or grand larceny, imprisonment in state prison from one to fourteen years. Assault with intent to commit other felonies than those named in last sentence, imprisonment in state prison not exceeding five years, or in county jail not exceeding one year, or fine not exceeding five hundred dollars, or both. Punishment for an assault with a deadly weapon where information is for an assault with intent to commit murder may be by imprisonment in the state prison. 47 FORM ASSAULT WITH DEADLY WEAPON. Wilfully, unlawfully, and feloniously did assault with a certain deadly weapon, to wit, a pistol [or other deadly weapon, naming it] one C D. ANOTHER FORM ASSAULT WITH DEADLY WEAPON. Wilfully, unlawfully, and feloniously did assault one C D, by means and force likely to produce great bodily injury. 48 FORM ASSAULT. Wilfully and unlawfully did make an assault upon one C D. 45 People v. Murat, 45 Cal. 281. <6 Ex parte Donahue, 65 Cal. 474. 47 Ex parte Mitchell, 70 Cal. 1. 48 People v. War, 20 Cal. 117. 90 CRIMINAL LAW AND PROCEDURE. ANOTHER FORM" ASSAULT. Wilfully, unlawfully, and maliciously did attempt to com- mit a violent injury on and against the person of one C D, the said A B having then and there the present ability so to do. ASSAULT TO MURDER. An assault to murder contains all the elements of a simple assault and a specific intent to kill. While to con- stitute murder, the guilty person need not intend to take life ; but to constitute an attempt to murder, he must so intend. He must specifically contemplate taking life ; and though his act is such as, were it successful, would be mur- der, if in truth he does not mean to kill, he does not become guilty of an attempt to commit murder. 1 Implied malice is not the equivalent of the actual intent to kill essential to constitute this crime, 1 ' but where every element is shown except intent, the court may refuse to instruct the jury that the defendant might be convicted of a simple assault, or a mere attempt to commit the offense charged. 3 Where the evidence discloses that the defendant was either guilty of a more serious offense than simple assault, or he was not guilty, the court is justified in failing or refusing to instruct as to a simple assault. 4 It is for the jury to say whether the weapon used would have produced death, 6 and the intent becomes immaterial where the defendant is convicted of an assault with a deadly weapon. 6 The intent need not be to murder a particular person, thus, where A intend- ing to murder B, shoots C, supposing C to be B, and wounds C, is guilty of an assault with intent to murder C. 7 The defendant cannot justify an assault upon his wife on the ground of her lewd conduct when lie was aware of it for eighteen months and was not acting under 1 People v. Mize, 80 Cal. 41. 2 People v. Burgle, 123 Cal. 303; People v. Wallace, 101 Cal. 285. s People v. Stanton, 106 Cal. 139. * People v. Scott, 93 Cal. 516; People v. McNutt, 93 Cal. 658. 5 People v. McFadden, 65 Cal. 445. s People v. Wallace, 101 Cal. 281. ? People v. Torres, 38 Cal. 141. ASSAULT. 91 the influence of passions aroused by recent information.* Nor is a trespasser justified in shooting the servant of the owner who attempts to put him off the premises, when he can with safety avoid it." Xor is a person resisting arrest by an officer who has reasonable cause to believe him guilty of a felony, justified in shooting the officer,- although he has no warrant. 10 EVIDENCE. The intent to murder must be proved as an indispensable fact, 11 and no presumption of law can arise which will decide it. 12 It may be inferred, however, from the shoot- ing of an officer attempting to arrest the defendant for another crime. 13 In determining this intent two elements are to be considered ; the charcter of the weapon and the nature of the wound. 14 The intent is always a question of fact, 15 and may be shown by the character of the instru- ment used, the manner of its use and the purpose to be accomplished thereby. 16 But where the assault was com- mitted with a knife, evidence that the defendant had a pistol is inadmissible, 17 and likewise, evidence that he had a knife and a pistol on his person nearly a month after the offense, 18 and evidence to prove the stabbing of another by directions of defendant, given at the same time, is admis- sible to show the intent with which the assault was made. 19 And to establish the motive of the assault, it is admissible to show that the defendant was escaping from jail, although it may tend to show another offense. 20 And it is proper s People v. Arnold, 116 Cal. 682. 9 People v. Douglass, 87 Cal. 281. 10 People v. Wilson, 117 Cal. 688. 11 People v. Mize, 80 Cal. 40; People v. Wallace, 101 Cal. 285; People v. Landman, 103 Cal. 581; People v. Wilson, 117 Cal. 688. 12 People v. Johnson, 106 Cal. 289. is People v. Wilson, 117 Cal. 688. i* People v. Ye Park, 62 Cal. 204. is People v. Wilson, 117 Cal. 688; People v. Watson, 12S Cal. 342. is People v. Valliere, 123 Cal. 576. IT People v. Wong Ah Leong, 99 Cal. 440. is People v. Yee Fook Din, 106 Cal. 163. 19 People v. Chin Bing Quong, 79 Cal. 553. 20 People v. Valliere, 123 Cal. 576. 92 CRIMINAL LAW AND PROCEDURE. to show circumstances of a previous crime, when the crime of which the defendant is charged is an assault with intent to murder an officer who is endeavoring to arrest him for the previous crime. 21 INDICTMENT. The indictment must allege malice aforethought. 22 The charge of assault with intent to commit murder will sus- tain a conviction of an assault with a deadly weapon with intent to do great bodily harm, 23 if it appear from the indictment that the assault was made with a deadly weapon ; 24 but the consent of the defendant cannot con- fer jurisdiction on the court to try him for any other offense than that charged in the indictment. 25 It will also sustain a conviction of any other lesser offense included in the charge. 26 And it does not cure the error in the indict- ment that the defendant requested an instruction that he might be convicted of assault with a deadly weapon, where the indictment does not show that the assault was made by means of a deadly weapon. 27 VERDICT. A verdict finding the defendant guilty of an assault to murder is sufficient, 28 or finding the defendant guilty is sufficient in form to convict of the offense charged. 29 But under an indictment for assault with intent to commit mur- der, a verdict of guilty of an assault with intent to do 21 People v. Wilson, 117 Cal. 688. 22 People v. Urias, 12 Cal. 326; People v. Schmidt, 63 Cal. 281; People v. Arnold, 116 Cal. 686. 23 People v. Davidson, 5 Cal. 134; People v. English, 30 Cal. 218; People v. Congleton, 44 Cal. 92; People v. Lightner, 49 Cal. 226. 24 People v. Vanard, 6 Cal. 563; People v. Murat, 45 Cal. 283; People v. Lightner, 49 Cal. 229; People v. Arnett, 126 Cal. 680. 25 People v. Granice, 50 Cal. 448. 26 People v. Fine, 53 Cal. 263; People v. Bentley, 75 Cal. 407; People v. Gordon, 99 Cal. 229; People v. Pape, 66 Cal. 366; People v. Watson, 125 Cal. 342; People v. Arnold, 116 Cal. 687; People v. Scott, 93 Cal. 516; People v. Barney, 114 Cal. 558; People v. Guidice, 73 Cal. 226. 27 People v. Murat, 45 Cal. 281. 28 People v. McFadden, 65 Cal. 445. 29 People v. West, 73 Cal. 345. ASSAULT. 93 bodily injury is a conviction of a simple assault, and there- fore only of a misdemeanor. 30 But under such an indict- ment a verdict of guilty as charged is a felony. 31 A ver- dict of assault with a deadly weapon will support a judg- ment of imprisonment in the state prison, for upon impos- ing such a judgment the crime thereby becomes a felony. 3 * FORM ASSAULT WITH INTENT TO COMMIT MURDER. Did, wilfully, unlawfully, feloniously, and with malice aforethought, with a deadly weapon, to wit, a pistol [or other deadly weapon, naming it] then and there assault one C D with intent then and there to kill and murder said C D. 33 so People v. Aubrey, 53 Cal. 427; Ex parte Ah: Cha, 40 Cal. 426; People v. Congleton, 44 Cal. 94; People v. Vanard, 6 Cal. 562; People v. English, 30 Cal. 218; People v. Wilson, 9 Cal. 260; People v. Martin, 47 Cal. 112; People v. Holland, 59 Cal. 364; People v. Turner, 65 Cal. 541; People v. Murat, 45 Cal. 283; Ex parte Max, 44 Cal. 581. si People v. Swenson, 49 Cal. 388; People v. Mesa, 93 Cal. 584; People v. Chuey Ying Git, 100 Cal. 439. s- Ex parte Mitchell, 70 Cal. 1; People v. Turner, 65 Cal. 541. ss People v. Ah Toon, 68 Cal. 362; People v. McPadden, 65 Cal. 445; People v. Swenson, 49 CaL 388; People v. Eng- lish, 30 Cal. 215. CHAPTER IX. BIOAMV. [Penal Code, sees. 281-284.] DEFINITION. Bigamy is the offense of marrying another person while having a husband or wife living. 1 The essence of the offense is marrying while married to another, and not the intent with which it is done. An honest belief on the part of the accused that he was unmarried at the time is no defense. 2 It is a familiar rule that to constitute a crime there must be a union of act and intent, but where a spe- cific intent is not an element of the crime the only intent necessary is a purpose or willingness to commit the act. 3 It is not bigamy, however, where the former husband or wife has been absent for five successive years, without being known to such person within that time to be living; nor where the former marriage has been pronounced void, annulled, or dissolved by judgment of a competent court. 4 PRESUMPTION OF CONTINUED LIFE. In a prosecution for bigamy the law presumes the inno- cence of the defendant until the contrary is shown. And while it also presumes the existence of a person once estab- lished by proof to continue until 'the contrary is shown, it is incumbent on the prosecution to prove that the husband or wife of the former marriage was alive at the date of the second marrriage ; and where, in case of two presumptions, one of innocence and the other of continuance of life, the 1 Penal Code 281. 2 People v. Hartman, 130 Cal. 487. a People v. O'Brien, 96 Cal. 176. * Penal Code 282. BIGAMY. 95 presumption of innocence prevails. 5 The mere fact that the former spouse was alive three years before the second marriage is not sufficient to support a conviction. 1 '' PROOF OF FORMER MARRIAGE. On a prosecution for bigamy general repute of marriage is admissible in evidence as a circumstance tending to show the fact of marriage. 7 And 'the fact that the rec- ord of the marriage certificate is also evidence of the marriage does not exclude evidence that the parties lived together avowedly as man and wife. 8 And the marriage to support the charge need not be a regular solemnized and authenticated marriage, but it is sufficient if there is a con- sent to the marriage, followed by a mutual assumption of marital rights, duties, and obligations. 9 But the mere intro- duction of another by the defendant as his wife or occupy- ing the same room at the hotel is not evidence tending to show that such a relation existed. 10 So consent alone will not constitute marrriage ; it must be followed by a solemn- ization or by a mutual assumption of marital rights, duties, or obligations. 11 But as the law exists now, consent and a mutual assumption of marital rights, duties, and obliga- tions is not sufficient to constitute a marriage. There must be a solemnization. 12 INDICTMENT. It is not necessary that the information for bigamy should state at what place the defendant was first mar- ried. 1 ''' People v. Feilen, 58 Cal. 223; Hunter v. Hunter, 111 Cal. 261; White v. White, 82 Cal. 448. |; People v. Feilen, 58 Cal. 218. ' People v. Hartman, 130 Cal. 487; People v. Beevers, 99 Cal. 289; White v. White, 82 Cal. 427. x People v. Stokes, 71 Cal. 265. " People v. Beevers, 99 Cal. 286. 1 People v. Lehmann, 104 Cal. 634.' 11 People v. Beevers, 99 Cal. 286; People v. Lehmann, 104 Cal. 634; Sharon v. Sharon, 79 Cal. 673; Hinkley v. Ayres, 105 Cal. 360. 12 Penal Code 68. is People v. Giesea, 61 Cal. 53. 96 CRIMINAL LAW AND PROCEDURE. JURISDICTION. The crime may be prosecuted in the county where the offense is committed or in any county in which the defend- ant may be apprehended. 14 PENALTY. Fine not exceeding two thousand dollars and imprison- ment in state prison not exceeding three years. Person knowingly and wilfully marrying the husband or wife of another, fine not less than two thousand dollars, or impris- onment in state prison not exceeding three years. FORM BIGAMY. While having a husband [or wife] then living unlaw- fully, wilfully, and feloniously did marry and take to wife one C D. i* Penal Code 785. BILL POSTING, see TRESSPASSING. CHAPTER X. BRIBERY. DEFINITION. Bribery is the asking, giving, accepting, or promising or undertaking to give anything of value or advantage, pres- ent or prospective, with the corrupt intent to influence unlawfully the person to whom it is given in his action, vote, or opinion in any public or official capacity. 1 The offense of offering a bribe is complete by the offer without any tender or production of the money, 2 and the offense of offering to receive a bribe is complete without an offer to give. 3 An offer to give a bribe on behalf of another is as much a bribe as though made in his own behalf, 4 and a police officer who accepts money under a promise not to arrest or prosecute offenders against certain laws is guilty, even though there be no violation of such laws shown, or a failure of the officer to make arrests. 5 To constitute the offense of asking for and agreeing to receive a bribe, it need not be met with a consent to give. And the offense of asking for a bribe is committed by a juror who in a civil case offers to procure a verdict for the defendant for a specified sum. 6 But a bribe to a witness to influence his testimony does not include the case of a person who by aid of gifts tries to induce a witness to tell the truth, whom he imagines is prejudiced and intends to testify falsely against him. 7 The law punishing an offer to bribe trustees 1 Penal Code, 7, sub. 6. 2 People v. Ah Fook, 62 Cal. 493. s People v. Hurley, 126 Cal. 351. * People v. Northey, 77 Cal. 619. s People v. Markham. 64 Cal. 157. 6 People v. Squires, 99 Cal. 327. 7 People v. Fong Ching, 78 Cal. 169. CRIMES--? CRIMINAL LAW A5I> of a corporation, includes only public or quasi public cor- porations. 8 Thus, primary elections for delegates to a convention, being purely political parties and associations, Hre not public bodies, and are not included within the stat- ute punishing bribery. 9 But an offer to bribe a member of a convention for the nomination of public officers is within the statute. And a delegate elected to such con- vention is a member thereof from the date of the primary election at which he was chosen ; and as such member may be guilty of offering to receive a bribe from a candidate for nomination prior to the meeting of the convention. 10 INDICTMENT. It may be generally stated that an information in the language of the statute is sufficient. 11 But it is not suffi- cient to allege generally in the indictment that the defend- ant bribed a certain person to do a certain thing; this is only a legal conclusion, the specific facts constituting the offense must be alleged ; 12 and it will be fatally defective if it fails to allege that the bribe was promised or received as an inducement to official action. 13 Thus, a charge against a judge of taking a bribe not to forfeit a recognizance under a statute defining bribery to be to act "more favor- ably to one side than the other in a suit, matter or cause pending or brought before him," must allege that there was a proceeding commenced, or to be commenced upon the recognizance. 14 EVIDENCE. To show the materiality of the proposed false testimony sought to be had from the witness, it is competent to show the general nature of the crime in respect to such testi- mony, but it is error to allow evidence of its full details. 15 8 People v. Turnbull, 93 Cal. 630. People v. Cavanaugh, 112 Cal. 674. 10 People v. Hurley, 126 Cal. 351. 11 People v. Edson, 68 Cal. 549. 12 People v. Ward, 110 Cal. 373. is People v. Kalloch, 60 Cal. 116. i* People ex rel Perley, 2 Cal. 564. is People v. Fong Ching, 78 Cal. 169. BRIBERY. 99 And at a trjal for offering a bribe to a juror, who served in a civil action, the complaint, answer, and minutes of the court in such action are admisssible in evidence to prove the allegations of the indictment and to show that the juror to whom the bribe was offered served as a juror in the trial of such action. 16 PENALTY. Bribery of executive officer, 17 member of legislative cau- cus, political convention, 17a etc., member of common coun- cil, board of supervisors, or governing body of any public or quasi-public corporation, 18 imprisonment in state prison from one to fourteen years. Judicial officer, juror, referee, arbitrator, 19 member of legislature, 20 one to ten years. Witness, 21 elector, 22 not exceeding five years. Telegraph operator, see section 641 Penal Code. A corrupt attempt to influence a juror, etc., fine not exceeding five thousand thousand dollars, or imprisonment in state prison not exceeding five years. Penalty is the same for the one accepting as for the one offering a bribe. FORM JUROR ASKING FOR BRIBE. That on the clay of - , 190 , a certain action was pending, undetermined and on trial in the Superior Court of the state and county aforesaid, in which said action E F was plaintiff and G H was defendant; that said A B was one of the jurors regularly impaneled and sworn to try said cause, and while acting as such juror in said cause, wilfully, unlawfullv corruptly, and feloniously did ask and agree to receive of and from one C D, one of the attorneys for the defendant in said civil action, the sum of $ lawful money of the United States, upon an agreement which he, the said A B, then and there offered to make and enter into with the said C D, that in consid- 16 People v. Northey, 77 Cal. 618. 17 Penal Code 67. i?a Penal Code 57. is Penal Code 165. 19 Penal Code 92, 93. 20 Penal Code 85. 21 Penal Code 137, 138. -- Penal Code 53. 100 CRIMINAL LAW AND PROCEDURE. eration of the payment to said A B of the said sum of money, the said A B would cast his vote and render his decision as a juror in said civil action in favor of the defendant in said civil action. 23 FORM BRIBERY OF EXECUTIVE OFFICER. Then and there being an executive officer, to wit, a police officer of the city of - , county of - , aforesaid [or other officer, describing him] wilfully, unlaw- fully, corruptly, and feloniously did ask, receive and agree to receive a bribe to wit, dollars, lawful money of the United States upon an understanding and agreement that he would not arrest persons engaged in violating section 330 of the Penal Code of the state of California ; nor would he arrest persons engaged in violating the gam- ing ordinance of said city of - - [or other understand- ing, naming it]. 24 FORM- BRIBERY OF JUDICIAL OFFICER. A certain cause in which was plaintiff and - was defendant was pending and undetermined before C D then and there being a duly elected, qualified, and acting justice of the peace of - - township, county and state aforesaid, and that the said A B [or other person, naming him] then and there unlawfully, wilfully, corruptly, and feloniously did give to the said C D a justice of the peace as aforesaid [or other officer, describing him] a sum of money, to wit, - dollars lawful money of the United States, as a bribe, with intent then and there and thereby corruptly and unlawfully to influence the decision of the said C D as justice of the peace as aforesaid, in said cause then and there pending as aforesaid in his official capacity as such justice, in favor of the defendant [or plaintiff] [action, vote, or opinion of other officer]. 23 People v. Squires, 99 Cal. 327. 24 People v. Markham, 64 Cal. 157. CHAPTER XI. BURGLARY. [Penal Code, sees. 459-483.] DEFINED. Is the entering of a house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, or railroad car, with intent to com- mit grand or petit larceny or any felony. 1 Burglary com- mitted in the night time is burglary in the first degree, and burglary committed in the day time is burglary of the sec- ond degree. 2 The common law burglary and statutory burglary have few elements in common, and the plain lan- guage of the statute must control. 3 THE ENTRY. The entry is burglarious even if by public entrance dur- ing business hours, if it is made with the intent embraced within the definition. 4 To constitute a room the partition need not reach to the ceiling or roof, 5 and the crime may be committed although there are no goods in the house to steal, 6 and although the house was not and never had been inhabited. 7 A building includes a ticket office. 8 INTENT. The entry must be made with the intent to commit one of the acts named in the definition, that is, either grand 1 Penal Code, 459; People v. Young, 65 Cal. 225. 2 Penal Code 460. s People v. Barry, 94 Cal. 481. * People v. Barry, 94 Cal. 481. s People v. Young, 65 Cal. 225. e People v. Shaber, 32 Cal. 36. ~ People v. Stickman, 34 Cal. 242. s People v. Young, 65 Cal. 225. 102 CRIMINAL LAW AND PROCEDURE. or petit larceny or a felony, 9 but the intent need not be consummated. 10 The intent is a simple mental operation to be determined from the facts in the case. 11 It is a question of fact to be inferred from the circumstances, 12 and the intent may exist although there were no goods*in the house to steal. 13 And where the intent on entering the particular room in the house is burglarious, the entry of the house was also made with such intent. 14 But burglary of a particular room cannot be proved by an entry of another room. 16 The intent must be to deprive the owner of property permanently, and where the purpose was only to deprive* of it temporarily it is not burglary. 16 The intent to commit a felony must be the felony charged in the indictment. 17 But it is immaterial whether the intent was to commit grand or petit larceny. 18 The felonious intent is not shown where the defendant merely acted with another under directions of an officer. 19 And the mere stealing from building without other circumstances does not of itself establish a prima facie case of burglary. 20 VENUE. In a prosecution for burglary where the goods are 'stolen in one county and carried into another the venue may be laid in either county, 21 but when laid in the county into which they are afterwards taken, the indictment or informa- tion should state all of the jurisdictional facts, that is, it must allege the fact of the burglary in one county and that '> People v. Barry, 94 Cal. 481. 10 People v. Hall, 94 Cal. 595. 11 People v. Morton, 72 Cal. 62. 12 People v. Soto, 53 Cal. 415; People v. Kennedy, 55 Cal. 201. is People v. Shaber, 32 Cal. 36. " People v. Young, 65 Cal. 225. is People v. Barnes, 48 Cal. 551. is People v. Brown, 105 Cal. 66. IT People vs. Mulkey, 65 Cal. 501. is People v. Smith, 86 Cal. 238. i People v. Collins, 53 Cal. 185. 20 People v. Barry, 94 Cal. 481. 21 People v. Jochinsky, 106 Cal. 638. BURGLARY. 103 the goods had been brought into the county into which the prosecution is had. 22 EVIDENCE. The possession of Stolen goods is not conclusive evidence of guilt, 23 but such possession may be shown although it was the next day and several miles away from the scene of the crime. 24 And it is admissible in evidence, even though it appear that some of the property was the result of another crime, and thus tends to prove another distinct offense. 25 Circumstantial evidence alone is sufficient to sup- port a conviction. 26 The possession of burglar's tools is admisssible after the corpus delicti is established and it is shown that the defendant was near the scene of the crime at the time of its commission, 27 but they are not admissible to prove stage robbery merely because a prior conviction of burglary is included in the indictment. 28 The evidence of intoxication is admisssible to determine the intent on entering, 29 and it cannot be restricted to a determination of the degree of crime, even when committed in the night time. 30 NIGHT TIME. At common law it was not considered night time if there was sufficient daylight to disclose a man's features, 81 but under the code, the meaning of night time is that period between sunset and sunrise. 32 INDICTMENT. It is sufficient to describe the offense in the language of the statute. 33 And the indictment may allege intent to 22 People v. Scott, 74 Cal.;. 94; People v. Jochinsky, 106 Cal. 638. 23 People v. Hannon, 85 Cal. 374. 24 People v. Lowery, 70 Cal. 193. 25 People v. Sears, 119 Cal. 267. 26 People v. Flynn, 73 Cal. 511; People v. Smith, 86 Cal. 240. 27 People v. Winters, 29 Cal. 658; People v. Hope, 62 Cal. 295. 28 People v. Sansome, 84 Cal. 449. 29 People v. Vincent, 95 Cal. 428. so People v. Phelan, 93 Cal. 111. si People v. Griffin, 19 Cal. 578. 32 Penal Code 450 and 463; People v. Getty, 49 Cal. 581. 33 People v. Shaber, 32 Cal. 36; People v. Lewis, 61 Cal. 360. 104 CRIMINAL LAW AND PROCEDURE. commit grand and petit larceny and the proof may be made of either. 84 But when it charges an intent to com- mit any other felony it must state the particular felony intended to be committed ; it is not sufficient to allege that he entered with the intent to commit a felony ; 35 but it need not allege the facts constituting the paricular felony intended to be committed. 36 But where the indictment charged an intent to commit larceny, the proof of an intent to commit robbery is sufficient, for robbery includes all the elements of larceny. 37 The omission of the word "feloniously" from the indictment is not ground for demur rrer. 38 It need not specify the value of the goods intended to be stolen.* 9 Degree need not be specified in the indictment. 40 Nor need the particular time of the night be alleged, nor if it be alleged, need it be proved, as it is not of the essence of the crime. 41 And where the indictment charges the crime with- out stating any time, it charges both degrees. 42 The own- ership of the building may be alleged to be in a lodger who is occupying the room entered. 43 Ownership is neces- sary to be alleged only when it constitutes the entire description of the property. It is only for the purposes of identification and description that it need be alleged at all. 44 And where it is owned in partnership it is not necessary to allege a copartnership nor that the copartners were the owners of the building or its contents. 45 The jury may presume the name of the father was the same as the son to show ownership of a house, 46 and it need not be snecified or described as in any particular town, but may be alleged 34 People v. Hill, 94 Gal. 595; People v. Smith, 86 Cal. 238. ss People v. Nelson, 58 Cal. 104. 3 People v. Golds-worthy, 130 Cal. 600; People v. Nelson. 58 Cal. 107; People v. Burns, 63 Cal. 614; People v. Smith, 86 Cal. 238. 37 People v. Crowley, 100 Cal. 478. 38 People v. Rogers, 81 Cal. 209. so People v. Ah Ye. 31 Cal. 452. 40 People v. Jefferson, 52 Cal. 452; People v. Barnhart, 59 Cal. 381. 41 People v. Burgess, 35 Cal. 115. 42 People v. Barnhart, 59 Cal. 381. 43 People v. St. Clair, 38 Cal. 137. 44 People v. Parker, 91 Cal. 91. 45 People v. Rogers, 81 Cal. 209. People v. McGilver, 67 Cal. 55. BURGLARY. 105 generally to be located in the county in which the cause is tried. 47 It need be only alleged with sufficient precision to enable the defendant to understand the accusation and the nature of the charge he is intended to meet. 48 So the variance is not material where the information charged ownership in one person and the evidence proved another person as: having an interest in it also, 40 or where the inter- est of one owner is set out incorrectly. 50 And under an allegation of the ownership in John Doe, proof, of the own- ership in a woman is no variance, 51 nor in a description where it is alleged the entrance was made in a basement and the proof show an entrance in a cellar. 52 VERDICT. A verdict of conviction of the first degree will not be disturbed on evidence which shows the commission of the crime was between the afternoon and midnight, 53 and a general verdict is sufficient for a conviction although con- taining matters that are surplusage. 54 But a verdict of guilt generally, without stating the degree is erroneous. 55 Under a conviction of the second degree the defend- ant is not prejudiced by the court failing to point out the distinction between the two degrees. 56 The verdict will not be reversed when the burglary is proven and the prop- erty that was stolen is shown to have been found in the possession of the defendant. 57 PENALTY. First degree, imprisonment in state prison from one to 47 People v. Geiger, 116 Cal. 440. 48 People v. Edwards, 59 Cal. 359; People v. Bitancourt, 74 Cal. 188; People v. Main. 114 Cal. 634. 4 People v. Bitancourt, 74 Cal. 188. BO People v. Main, 114 Cal. 632. si People v. White, 116 Cal. 17. 52 People v. Golds-worthy, 130 Cal. 600. 53 People v. McCarty, 117 Cal. 65. 54 People v. Jochinsky, 106 Cal. 638; People v. Cummlngs, 117 Cal. 500. 65 People v. Travers, 73 Cal. 580; People v. Lee Yune Chong, 94 Cal. 386., se People v. Urquidas, 96 Cal. 239. 57 People v. Sansome, 98 Cal. 235. 106 CRIMINAL LAW AND PROCEDURE. fifteen years ; second degree, imprisonment in state prison not less than five years. Where the defendant has suffered a former conviction a sentence of ten years imprisonment for an attempt to commit burglary does not exceed the maximum term allowed, 58 and upon a conviction of an attempt he may be sentenced to one-half of the longest term of imprisonment prescribed for the offense. 59 FORM BURGLARY. Wilfully, unlawfully, feloniously, and burglariously did enter the house, room, dwelling, and apartment of one C D [or other building, tent, vessel, or car, naming it] with the intent then and there and therein wilfully, unlawfully, and feloniously to commit the crime of larceny [or any felony, naming it]. 90 CEMETERIES, see SEPULCHER, VIOLATING. CHEAT, see FALSE PERSONATION and FALSE PRETENSES. CHILD STEALING, see KIDNAPPING. ss People v. McGregor, 88 Cal. 140. so Ex parte Hope, 59 Cal. 423. eo People v. Hall, 94 Cal. 595; People v. Henry, 77 Cal. 445. CHAPTER XII. COM POUNDING CRIMES. [Penal Code. sec. 153.] DEFINED. Compounding a crime is done by a person who, having knowledge of the actual commission of a crime, takes money or property of another, or any gratuity or reward or any engagement or promise thereof, upon any 'agree- ment or understanding to compound or conceal such crime, or to abstain from any prosecution thereof, or to withhold any evidence thereof, except in cases provided for by law in which crimes may be compromised by leave of court. 1 Knowledge of the actual commission of the crime and the taking of money or property of another, upon an agree- ment or understanding to compound or conceal such crime are the facts necessary to constitute the offense ; but there can be no knowledge of the commission of the crime unless it was actually committed. 2 PENALTY. Imprisonment in the state prison not exceeding five year's, or in a county jail not exceeding one year, where the crime was punishable by death or imprisonment in the state prison for life. By imprisonment in the state prison not exceeding three years, or in the county jail not exceeding six months, where the crime was punishable by imprison- ment in the state prison for any other term than life. By imprisonment in the county jail not exceeding six months, 1 Penal Code 153. 2 People v. Bryon, 103 Cal. 675. 108 CRIMINAL LAW AND PROCEDURE. or by fine not exceeding five hundred dollars, where the crime was a misdemeanor. 3 FORM COMPOUNDING FELONY. That one M H, on the day of , 190 , wilfully, unlawfully, and feloniously did steal and take from the person of E O the sum of dollars, lawful money of the United States, said money being the property of and belonging to the said E O; that said W B, at the same time and place, having knowledge of the commission of said crime by said M H, as aforesaid, did take and receive from said M H the sum of dollars, lawful money of the United States, upon the agreement and understanding, wilfully, unlawfully, and feloniously made and entered into with said M H, that he, the said W B, would compound and conceal the crime which had been committed as afore- said, by said M H. 4 CONCEALMENT OF PERSON CHARGED WITH CRIME, see ACCESSORY. s Penal Code 153. People v. Bryon, 103 Cal. 676. CHAPTER XIII. CONSPIRACY. [Penal Code, sec. 182.] Conspiracy is an agreement of two or more persons to do an unlawful act, or a lawful act by unlawful means. 1 These acts are enumerated in the code as an agreement to falsely and maliciously indict or procure another to be charged or arrested for crime ; or falsely to move or main- tain any suit, action, or proceeding, or to cheat or defraud any person of property by criminal means, or to obtain property by false pretenses: or to commit any act injurious to public health or morals, or for the perversion or obstruc- tion of justice, or due administration of the law. 2 The crime of conspiracy cannot be committed by one person alone, and husband and wife, being one person in law, cannot be guilty of a conspiracy. 3 But on a prosecution one conspirator may be separately informed against, tried, and convicted, and the naming of the co-conspirator in the indictment does not render it bad. 4 It is necesssary to allege and prove, in addition to the conspiracy, some overt act done in furtherance and pursuance thereof. 5 A con- spiracy is not an element of murder, and is important as a means of showing a joint commission of crime. 6 1 People v. Richards, 67 Cal. 415. 2 Penal Code 182. ' People v. Miller, 82 Cal. 107. ^ People v. Richards, 67 Cal. 412. R People v. Daniels, 105 Cal. 262. People v. Holmes, 118 Cal. 444. HO CRIMINAL LAW AND PROCEDURE. PENALTY. Imprisonment in county jail not exceeding one year, or fine not exceeding one thousand dollars, or both. FORM CONSPIRACY TO COMMIT A CRIME. Wilfully and unlawfully did conspire and agree with one C D to commit the crime of robbery, to wit, by then and there feloniously and by means of force and fear to take dollars, lawful money of the United States, from the person and immediate presence of one E F, the owner thereof, and against the will of said E F; and the said A B in pursuance and furtherance of said conspiracy and to effect the object thereof, did, on or about the said day last named, assault the said E F and consummate the purpose of said conspiracy. 7 FORM TO FALSELY CHARGE WITH A CRIME. Did, among themselves, unlawfully conspire, combine, confederate and agree together, falsely to charge, and to have feloniously charged, one E F, before one of the jus- tices of the peace of said county, on and by the oath of the said A B, with the crime of robbery committed against and upon the person of said A B, and to procure the issu- ing of a warrant thereupon by said justice of the peace for the arrest of the said E F upon the charge aforesaid ; and in furtherance and pursuance of said conspiracy, and to effect the object thereof, the said A B did on the day of , 190 , on and by his oath before one G H, a justice of the peace in and for the - township, of the county and state aforesaid, falsely and feloniously charge the said E F with the crime of robbery as aforesaid, and procured from the said justice of the peace a warrant for his arrest. T People v. Richards, 67 Cal., 412. CHAPTER XIV. CONTEMPT. Contempt is a quasi criminal proceeding, 1 but is not a misdemeanor, 2 except when it consists of disorderly, con- temptuous, or insolent behavior committed during the sit- ting of a court or referee, in its immediate view and pres- ence, or of a breach of the peace tending directly to inter- rupt the proceedings of a court or wilful disobedience or resistance to a lawful order or process of a court or contu- macious and unlawful refusal to be sworn as a witness or to answer any material question, or the publication of a false or grossly inaccurate report of the proceedings of a court, or presenting to a member of the court, having power to pass sentence upon a prisoner under conviction, any representa- tion of any kind in aggravation or mitigation of the pun- ishment to be imposed upon such person, except as pro- vided by law. 3 It need not be prosecuted as a separate and distinct proceeding. 4 WHO MAY PUNISH FOR. Courts may punish for contempts to process, and issue such writs as are necesssary to the exercise of their juris- diction. 5 The court making the order violated alone has 1 Schwarz v. Superior Court, 111 Cal. 106; Ex parte Hollls, 59 Cal. 405; Ex parte Ah Men, 77 Cal. 200; Ex parte Gould, 99 Cal. 362; McClatchy v. Superior Court, 119 Cal. 419; Ex parte Henshaw, 73 Cal. 486; In re Jessup, 81 Cal. 482. 2 In re Fil Ki, 80 Cal. 201. s Penal Code 166. * Ex parte Ah Men, 77 Cal. 198; In re Fil Ki, 80 Cal. 204; People v. Durrant, 116 Cal. 209. s In matter of Cohen, 5 Cal. 495; White v. Superior Court, 110 Cal. 66. 112 CRIMINAL LAW AND PROCEDURE. power to punish therefor." The Superior Court has no jurisdiction to punish for contempt committed before a coroner. 7 The order must be served before the party can be punished for its violation, and the mere delivery of a certified copy in another state is not service. 8 WHAT ACTS ARE CONTEMPT. The following acts have been held to constitute con- tempt: A newspaper publication likely to affect the trial pending the trial, sending insulting letters to a grand jury. 1 " defying the authority of the grand jury, by a wit- ness, 11 disobedience of an order to pay alimony, 12 but not where the defendant is unable to pay it 13 Contempt may be committed by abuse of process of court, 14 by violation of an order of probate which the court had jurisdiction to make, 1 -'' by an employee of a telegraph company refusing to deliver a message to be used in evidence, 16 by a refusal to produce a prisoner in compliance with a writ of habeas corpus, 17 by obstructing the execution of a search war- rant, 18 by transferring property pending a motion for its delivery to the sheriff in supplemental proceedings, 19 but it is not contempt to set up relevant and material matters in an affidavit showing bias and prejudice of the judge. 20 Huerstal v. 'Muir, 62 Cal. 481; People v. County Judge, 27 Cal. 152. " Kuhlman v. Superior Court, 122 Cal. 636. s Johnson v. Superior Court, 63 Cal. 578; Hennessy v. Nichol, 105 Cal. 142. Ex parte Barry, 85 Cal. 605; Dailey v. Superior Court, 112 Cal. 98; People v. Durrant, 116 Cal. 209; McClatchy v. Superior Court, 119 Cal. 428. 10 In matter of Tyler, 64 Cal. 434. " In re Gannon. 69 Cal. 541. '= Ex parte Perkins, 18 Cal. 60; Ex parte Spencer, 83 Cal. 465; Ex parte Gordan, 95 Cal. 378; Ex parte Cottrell 59 C:il. 417. People v. Todd, 119 Cal. 57. n Ex parte Acock, 84 Cal. 50. ' Ex parte Cohn, 55 Cal. 193; Ex parte Hollis, 59 Cal 412- Ex parte Smith, 53 Cal. 204; Wiggin v. Superior Court, 68 Cal. 400. ie Ex parte Jaynes, 70 Cal. 638. ' Ex parte Sternes, 77 Cal. 156. 1 In re Lowenthal, 74 Cal. 109. Ex parte Kellogg, 64 Cal. 343. =o Works v. Superior Court, 130 Cal. 304. CONTEMPT. 113 It was, however, under a statute which did not allow a change of venue for such causes. 21 The publication of the truth concerning legal proceedings where in response to unjust charges upon the veracity of the publisher, without intent to improperly influence the proceeding, does not con- stitute contempt, as a judge on the bench has no more right than any other person to cast aspersions upon the character of a person unjustly, and the party upon whom such asper- sions are cast nas a right to defend himself against them. 22 Contempt proceedings cannot be based upon the disobed- ience of a decree not entered, 23 nor of an order made in a cause not pending. 24 Contempt proceedings cannot be used for the purpose of adjudicating title to property, 25 nor to compel a person to be a witness against himself, nor to testify to any matter which may tend to incriminate him. 28 While the defendant, if present at the instance of the cita- tion, need not be present at the judgment, 27 yet no con- tempt can be based on a failure to answer the order to show cause on a person who is represented by an attor- ney. 28 The liability to civil or criminal actions does not affect the right of the court to punish for contempt also, 2 * and a prior punishment does not absolve from a failure to obey a subsequent order. 30 But a new judgment cannot be entered in addition to the original judgment for the same offense. The power of the court to enter another is lost. 31 An order not to commit contempt is not proper. 3 * 21 Ex parte Jones, 103 Cal. 397. 22 McClatchy v. Superior Court, 119 Cal. 413. 23 Cosby v. Superior Court, 110 Cal. 45. 24 EX parte Cohen, 6 Cal. 318. 25 Ex parte Hollis, 59 Cal. 405; Deering v. Richardson- Kimball Co., 109 Cal. 83; Ex parte Clark, 110 Cal. 407; Sayers v. Superior Court, 84 Cal. 645; Tomsky v. Superior Court, 131 Cal. 623; Ex parte Casey, 71 Cal. 269. 26 Ex parte Clarke, 103 Cal. 352; Ex parte Cohen, 104 Cal. 530; Ex parte Gould, 99 Cal. 360; Cosby v. Superior Court, 110 Cal. 52; McClatchy v. Superior Court, 119 Cal. 419. v In re Clark, 125 Cal. 389. 28 Ex parte Gordan, 92 Cal. 478; Foley v. Foley, 120 Cal. 39. 29 Ex parte Acock, 84 Cal. 50. , so Ex parte Clark, 110 Cal. 405. 31 Barry v. Superior Court, 91 Cal. 486; In re Barry, 94 Cal. 5G3. 32 Dailey v. Superior Court, 112 Cal. 94. CRIMES--8 114 CRIMINAL LAW AND PROCEDURE. A failure to comply with an order pending an appeal there- from is not contempt, 83 where the judgment isr- stayed by appeal. 34 IN THE PRESENCE OF THE COURT. ntcmpt committed in the presence of the court may be "punished peremptorily without examination and proof, but where committed out of the presence of the court the accused is entitled to be heard in his defense. 35 Where it is com- mitted in the presence of the court a delay by the court to jmnish and afterwards attempting to proceed without notice is void. 30 A refusal to produce a prisoner on habeas cor- pus is contempt in the presence of the court. 37 Where the contempt is committed out of the presence of the court, it must be founded upon affidavits and citations. 38 It is not necesssary that the affidavit set forth the pendency of the cause and the provisions of the order violated, as it is not a separate proceeding and the court takes judicial notice of such fact. 39 VIOLATION OF AN ORDER OF COURT. Contempt cannot be predicated on a refusal to answer on the ground that the witness waived the privilege by testi- fying at the preliminary. 40 The question upon which refusal is based must be legal and pertinent to the issue and the contempt proceedings must show these facts. 41 If the witness refuse to answer upon the ground that it is not material, he makes the refusal at his peril, and if one question is proper and pertinent, the judgment of con- ss Ex parte Orford, 102 Cal. 656; Ruggles v. Superior Court, 103 Cal. 128. 3* Mark v. Superior Court, 129 Cal. 1; Foster v. Superior Court, 115 Cal. 279; Ex parte Queirolo, 119 Cal. 636. 35 People v. Turner, 1 Cal. 152. so in re Foote, 76 Cal. 543. 37 Ex parte Sternes, 77 Cal. 156. as Ex parte Rickert, 126 Cal. 244; Ex parte Clarke, 126 Cal. 235. Ex parte Ah Men, 77 Cal. 198. Overend v. Superior Court, 131 Cal. 280. " Ex parte Clarke, 126 Cal. 235; Ex parte Rowe, 7 Cal. 181; Ex parte Brown, 97 Cal. 83; Ex parte Zeehandelaar 71 Cal. 238; Ex parte Henshaw, 73 Cal. 510. CONTEMPT. 115 tempt will stand. 42 Where a witness refuses to be sworn or to testify each refusal is a separate contempt. 43 But where the party is imprisoned for refusal to answer ques- tions, he will be discharged on the abatement of the action for which the questions were pertinent, 44 as it will no longer be pertinent to answer the same. 45 But the defendant may be imprisoned for refusal to testify for a time certain, and cannot question the sentence on the ground that it should be until he complies with the order, without he shows he was ready during such time to comply. 46 The justice court may imprison for non-complance with a valid order, 47 or to pay a fine imposed for contempt 48 until the fine is paid. 49 The court has power to enforce the payment of a fine by imprisonment where the offense is sending insult- ing letters to a grand jury. 50 Where the punishment is fine and imprisonment, a release from custody on habeas corpus does not affect the validity of the fine, 51 but the judgment should show on its face the facts upon which the adjudication is made. 52 The proceedings must show the jurisdiction of the court, 53 and specify the acts upon which the order is based. 54 The findings and commitment should show that it is within the power of the accused to comply 42 in re. Rogers, 129 Cal. 468; Ex parte Zeehandelaar, 71 Cal. 238. 43 EX parte Stice, 70 Cal. 53; Overend v. Superior Court, 131 Cal. 280. 44 Ex parte Rowe, 7 Cal. 176. 45 Ex parte Overend, 122 Cal. 201; Adams v. Haskell, 6 Cal. 316. 46 in re Clarke, 125 Cal. 389. 47 Ex parte Latimer, 47 Cal. 131. 48 Ex parte Abbott, 94 Cal. 333. 49 Ex parte Crittenden, 62 Cal. 534; Ex parte Hollis, 59 Cal. 408; Matter of Tyler, 64 Cal. 438; Tyler v. Connolly, 65 Cal. 30; In re Buckley, 69 Cal. 3; Ex parte Henshaw, 73 Cal. 495; Ex parte Gould, 99 Cal. 362; Ex parte Abbott, 94 Cal. 334. so Matter of Tyler, 64 Cal. 434. 51 Grady v. Superior Court, 64 Cal. 155. 52 People v. Turner, 1 Cal. 152; Ex parte Field, 1 Cal. 187. 53 Overend v. Superior Court, 131 Cal. 280; People v. Rowe, 7 Cal. 183; Schwarz v. Superior Court, 111 Cal. 112; Batchelder v. Moore, 42 Cal. 415; Ex parte Zeehandelaar, 71 Cal. 238. 54 Ex parte Rowe, 7 Cal. 181. CRIMINAL LAW AND PROCEDURE. with the order of the court, where the imprisonment is for refusal." UN I. AUl-T I- ORDERS. The party may disregard an unlawful order ot court, and the disobedience of an order which the court has no juris- diction to make, is not conteir.pt. 51 ' 1 and habeas corpus will lie to release from custody for a refusal to obey an unauthor- ized order. 87 APPEAL AM) REVIEW. A judgment of contempt is final and conclusive, 58 and cannot be attacked collaterally" if within the jurisdiction of the court rendering it. 60 It is not re viewable' 11 and is not appealable. 02 But if the defendant is unlawfully impris- oned he must proceed by some other remedy.' 1 " Where it appears that the court had jurisdiction, and the judgment sets forth the decree violated and all the facts necesssary to the validity of the order, the accused cannot be discharged on habeas corpus, 64 nor can the question that the affidavit was made on information and belief be so raised. 65 The court has power to determine the proceeding, and error on its ruling cannot be reached by writ of review. 00 After an order discharging for contempt of another court, he can- not be imprisoned again for the same contempt. 07 Ex parte Cohen. 6 Cal. 318; Ex pait? Silvia,' 12! Cal. 293. Ex parte Cohen, 5 Cal. 495; Ex parte Brown, 97 Cal. 83; Ex parte Rowe, 7 Cal. 181; Ex parte Zeehandelaar, 71 Cal. 238; Ex parte Clarke, 126 Cal. 235; People v. O'Neil, 47 Cal. 109; Ex parte Hollis, 59 Cal. 408; Huerstal v. Muir, 62 Cal. 481. x parte Gordon, 92 Cal. 478. '8 In matter of Cohen. 5 Cal. 495. Ex parte Ah Men, 77 Cal. 198. o Dewey v. Superior Court, 81 Cal. 64. '' Sayers v. Superior Court, 84 Cal. 642. '- In re Vance, 88 Cal. 262; Tyler v. Connolly, 65 Cal. 30; Cosby v. Superior Court, 110 Cal. 45; Sanchez v. Newman, 70 Cal. 210; Ex parte Clancey. 90 Cal. 556. It was for- merly held thTt the judgment was appealable on the question of jurisdiction. People v. O'Neil, 47 Cal. 109; Ex parte Hollis. 59 Cal. 408; Ex parte Rowe, 7 Cal. 176; Ware v. Robinson, 9 Cal. 111. > People v. Kuhlman, 118 Cal. 140. Ex parte Vance, 88 Cal. 281. 85 Ex parte Acock. 84 Cal. 50. 88 White v. Superior Court, 110 Cal. 66. 8T Grady v. Superior Court, 64 Cal. 15s! CONTEMPT. 117 CONTEMPT OF LEGISLATIVE BODIES. A legislative body has all the powers and privileges which are necessary to the proper exercise, in all respects, of its appropriate functions. Such powers and privileges are inherent in a legislative body, and are to be ascertained primarily by a reference to the common parliamentary law. It may compel the attendance of all persons within the limits of its constituency, as witnesses, in regard to sub^ jects on which it has power to act, and into which it insti- tutes an investigation. Such witnesses give their testi- mony under the penalty of being adjudged guilty of con- tempt, and punished, if they testify falsely ; and they may be compelled, by process of contempt, to testify, when with- out legal cause they refuse to do so. When a charge of bribery is brought against members of a body of the legis- lature, such body has power to investigate the charge, and to summon the person making the charge before its bar as a witness concerning the same, and to, commit him for con- tempt for refusing to testify without sufficient legal cause. 68 CONVEYANCE, see FORGERY. COUNTERFEITING, see FORGERY. s Ex parte McCarthy, 29 Cal. 396; Ex parte Lawrence, 116 Cal. 298. CHAPTER XV. CRIME AGAINST NATURE. [Penal Code, sees. 286, 287.] This is the offense of copulation per anum upon an ani- mal or human being, but it does not cover any other form of unnatural carnal intercourse. 1 Putting in fear is not an element of the offense, 2 and an assault is not included in the crime except where committed upon a human being without his consent. 3 The allegation of a Christian and surname is sufficient to show a human being. 4 PENALTY. Imprisonment in the state prison not less than five years. FORM ASSAULT. Wilfully, unlawfully, and feloniously did make an assault upon one C D, with intent to commit in and upon the per- son of said C D the infamous crime against nature. 5 FORM WITHOUT AN ASSAULT. Wilfully, unlawfully, and feloniously did commit the infamous crime against nature, with and upon one C D [or "a certain animal, to wit, a cow," or other animal, describing it] by then and there having carnal knowledge of the body of said C D [or animal, naming it]. DEADLY WEAPON, see DISTURBANCE OF THE PEACE. DEED, see FORGERY. DEFAMATION, see LIBEL. 1 People v. Boyle r 116 Cal. 658. 2 People v. Wilson, 119 Cal. 384. People v. Hlckey, 109 Cal. 275. * People v. Moore, 103 Cal. 508. People v. Williams, 59 Cal. 398. CHAPTER XVI. DKFRATJDING INN KEKFERS. [Penal Code, sec. 537.] The act contemplates three classes of offenses: (i) Those who obtain food or accommodations at an inn or boarding house without paying therefor, with intent to defraud; (2) those who obtain credit thereat by the employ- ment of any false pretenses; (3) those who, after obtain- ing such credit or accommodation, abscond and surrepti- tiously remove their baggage without paying their score. This act is constitutional. 1 PENALTY. Imprisonment in county jail not exceeding six months, or fine not exceeding five hundred dollars, or both. FORM DEFRAUDING INN KEEPERS. Unlawfully, wilfully, and fraudulently, and with intent to defraud, one C D, the proprietor thereof, did obtain at the - - Inn and boarding house of the said C D r food and accommodation, without paying therefor. FORM DEFRAUDING BY FALSE PRETENSES. With intent to defraud one C D of his property, unlaw- fully, knowingly, falsely, and designedly did represent and pretend to said C D, that two certain trunks which the said A B then and there exhibited, produced and deposited with the said C D, contained much valuable merchandise, and was owned by the said A B ; that said merchandise was of the aggregate value of five hundred dollars ; and the said C D then and there believing said false pretenses and i Ex parte Williams, 121 Cal. 328; Ex parte Ruffin, 119 Cal. 487. 120 CRIMINAL LAW AND PROCEDURE. representations and being deceived thereby, was induced by reason thereof to give and extend to the said A B credit and accommodation at the - - Inn and boarding house, which was then and there owned and conducted by the said C D; that said credit was secured and obtained from the said C D solely by reason of said false pretenses and repre- sentations and with the intent of the said A B unlawfully, knowingly, and designedly to defraud the said C D ; that said trunks did not contain any merchandise whatever, but were filled with stones and rubbish, and had not any value in excess of the sum of five dollars, as the said A B then and there well knew. FORM DEFRAUDING BY ABSCONDING. After having obtained credit and accommodation at the Inn and boarding house, unlawfully, wilfully, and fraudulently did abscond and surreptitiously remove his baggage therefrom, without paying for his food and accom- modation. DIGGING ON LAND OF ANOTHER, see TRESPASS. DISORDERLY CONDUCT, see DISTURBANCE OF THE PEACE. CHAPTER XVII. DISTURBANCE OK THB FBACB. The principal offenses against the public peace are dis- turbances of public meetings, 1 riots,- routs, 3 unlawful assemblies, 4 disturbing the peace in the night time, 5 exhib- iting deadly weapons in a rude, angry, or threatening man- ner, 6 inciting riot, 7 and using vulgar language in the pres- ence of children. 8 These are all misdemeanors. But disturbing the peace by resisting! process after a county has been declared in a state of insurrection, 9 or by engaging in or promoting a prize fight 10 is a felony. FORM DISTURBING PEACE OF NEIGHBORHOOD. Wilfully and maliciously did disturb the peace of the neighborhood of - - in the town of - , said county of - , by loud and unusual noise, tumultuous, and offensive conduct, and by threatening, quarreling, and chal- lenging to fight and fighting. VULGAR LANGUAGE IN THE PRESENCE OF CHILDREN. The statute enumerates several different acts, some of which are declared to be misdemeanors if done in unin- corporated towns, and the rest of which are made a misde- meanor if done anywhere. Each of the acts made a mis- demeanor in case it is done within an incorporated town i Penal Code 403. -' Penal Code 404. a Penal Code 406. * Penal Code 407 s Penal Code 415. Penal Code 417. T Penal Code 420. s Penal Code 415. Penal Code 411. Penal Code 412. 122 CRIMINAL LAW AND PROCEDURK. is specifically declared to be a misdemeanor if done in such town; and it is not necessary to specify :he language used if it is alleged to be profane and indecent. 11 F( , UM VULGAR LANGUAGE WITHIN THE PRESENCE OF CHIL- DREN. Wilfully and maliciously did use vulgar and indecent lan- guage within the hearing of children, in a loud and boist- rous manner. 12 FORM DISTURBING PEACE OF PERSONS. At and in an incorporated town, to wit, the town of in said county, wilfully and maliciously did dis- turb the peace and quiet of C D and others by threatening and challenging to fight, by firing shots from a pistol, and by using vulgar and profane language in the presence and hearing of women and children, in a loud and boistrous manner. FORM EXHIBITING DEADLY WEAPON. In the presence of C D and others, did wilfully and not in necessary self-defense, draw and exhibit a certain deadly weapon, to wit, a dirk knife [or loaded pistol, as the case may be] in a rude, angry and threatening manner. FORM USING DEADLY WEAPON. In a fight and quarrel between the said A B and one C D wilfully, unlawfully, and maliciously said A B did use a certain deadly weapon, to wit, a dirk knife [or loaded pistol, as the case may be]. FORM RIOT. That the said A B, together with divers other persons to the number of - , or more, wilfully, unlawfully, and riotously did assemble and gather together and by loud and unusual noise and tumultous and offensive conduct did disturb the public peace. 11 Ex parte Foley, 62 Cal. 508. 12 Ex parte Foley, 62 Cal. 508. CHAPTER XVIII. KLBCTION LAW, CRIMKS AGAINST. The statute includes all persons who wilfully cause or procure or allow false registrations. 1 Fraud in voting is a conclusion of law to be drawn from the facts, which must be alleged, showing disqualification of the voter by alleg-- ing the facts. An allegation of fraud in general terms and the allegation that the defendant was not entitled to vote are merely conclusions of law, and present no issuable facts. The material facts necesssary to be charged to show a disqualification to vote are those facts prescribed by the constitution and the code as constituting the qualifications ' and creating the disabilities of electors. 2 Under an indict- ment for refusing to swear a voter whose vote has been challenged, it is not necessary to allege that such voter was . registered on the precinct register. 3 Evidence of hand- writing alone is insufficient to justify a verdict of guilty under the charge of altering election returns. 4 PENALTY. [Section numbers below refer to Pnritv Act. statutps 1893, p. 12.] Fraudulent registration or assisting or allowing, impris- onment in state prison from one to three years [Sees. 21, 22]. Fraudulent voting [Sec. 23], changing ballots or returns by officers [Sec. 26], forging or counterfeiting returns [Sec. 27], imprisonment in state prison from two to seven years. Attempt to fraudulently vote, imprison- ment in state prison from one to two years [Sec. 24]. Brib- ery of members of caucus, convention committee, etc., 1 People v. Sternberg, 111 Cal. 3. 2 People v. Neil, 91 Cal. 465. 3 People v. Burns, 75 Cal. 627. * People v. Buckley, 116 Cal. 146. 124 CRIMINAL LAW AND PROCEDURE. imprisonment in state prison! from one to seven years [Sec. 25]. Altering returns by other than officer, imprisonment in state prison from one to five years [Sec. 27]. Aiding or abetting certain offenses, imprisonment in state prison not exceeding two years [Sec. 28]. Refusal to perform duty, fine not exceeding one thousand dollars o~ imprisonment in state prison not exceeding five years or both [Sec. 29]. Fil- ing false statement or certificate, imprisonment in state prison from one to seven years [Sees. 30, 31]. Officer marking ballots for identification, fine from fifty to five hundred dollars or imprisonment in county jail from thirty days to six months, or both [Sec. 42]. FORM FRAUDULENT REGISTRATION. [Puj-ity Act, Sec. 22. | That the said A B at the time and place aforesaid, hav- ing resided in the state of California, less than one year to wit, about two months [or having resided in the county of less than ninety days, to wit, about thirty days, as the case may be] well knowing that he had not been a resi- dent of the state of California for the period of one year [or of the county of - - for the period of ninety days, as the case may be], and that he was not a qualified voter and not entitled to such registration, did wilfully, fraud- ulently, and feloniously cause, procure, and allow himself to be registered in the great register of said county of , state of California. FORM VOTING TWICE. [Purity Act, Sec. 24.1 That on the day of November, 190 , there was reg- ularly proclaimed, called, and held a general election throughout the state of California for the election of state and county officers, that at said election said A B voted by ballot at - - precinct, then and there a precinct duly created and formed in said county, and thereafter on the same day at the same election, at - - precinct in said county, then and there a precinct duly created and formed and not a part of nor identical with said precinct, unlawfully, wilfully, fraudulently, and feloniously voted a ELECTIONS. 125 second time by ballot, then and tbere and thereby fraud- ulently and feloniously voting more than once at the same election. . FORM FRAUDULENT VOTING. [Purity Act, Sec. 24.] That on the day of November, 190 , there was reg- ularly proclaimed, called, and held a general election throughout the state of California, for the election of state and county officers, that at said election said A B at the voting precinct of - - in said county, which said pre- cinct was then and there duly created and formed, did unlawfully, fraudulently, and feloniously vote by ballot; that said A B was not then registered on the great register of said county, and had not resided in the state of Califor- nia, for a period of one year prior thereto. FORM ALTERING ELECTION RETURNS. [Penal Code, Sec. 51; Purity Act, Sec. 26.] That on the day of - , 190 , there was held, pur- suant to the laws of the state of California a general elec- tion throughout the state aforesaid, and in the several counties thereof, and in and for the county of , for the state, legislative, county, and township officers, and that at said general election among other candidates for pub- lic offices to be elected, balloted, and voted for by the duly qualified voters of said state, for and in said county and state aforesaid were candidates for - for said county [or state, as the case may be], and among other election precincts of said county of - was the election pre- cinct of - , which said election precinct was duly and legally formed and organized, * * * and the said A B and C D were and each of them was the duly appointed, qualified, and acting officers and members of the board of election of said - - election precinct, to wit : Said A B was an inspector of said election precinct, and said C D was a clerk of said election precinct. * * and the duly qualified voters of said precinct voted for the duly and legally nominated candidates for said office of - . to wit, [here insert names of candidates for said office] 126 CRIMINAL LAW AND PROCEDURE. respectively ; that after said election in said precinct was holden. and after the polls thereat were closed, the votes cast at said election in said precinct counted, and the tally lists of said counts were made in writing and it thereupon became and was the legal duty of said defendants and each and all of the members of said board of election to sign, certify, and attest, as required by law, true and correct tally lists, and attach to said tally lists, lists containing the names of candidates voted for and for what office, and the number of votes given for each candidate at said election in said - - precinct, for delivery to the county clerk of said county of - - state aforesaid ; that in violation of their sworn duty as such officers of said election, pre- cinct, the said A B and C D, and each of them at the county of aforesaid in the state aforesaid, on or about the day of ,190 , and whilst acting as such officers of election, and upon and as members of the said board of election, as aforesaid, did and each of them did, in his official capacity aforesaid, wilfully, knowingly, fraudulently, and feloniously act in contravention to and in violation of the provisions of the laws of said state of California, relat- ing to elections, in that they did wilfully, knowingly, fraud- ulently, and feloniously alter the official returns in said election precinct and return and cause to be returned and delivered to said county clerk of said county aforesaid, in the state aforesaid, as true and official returns of said elec- tion in said precinct, certain false and fraudulent altered tally lists, and lists attached to said tally lists, containing the names of candidates voted for at said election, and for what office, with the number of votes given for each can- didate falsely stated, and fraudulently altered in this, to wit: That said defendants and each of them did return and cause to be returned and delivered to said county clerk aforesaid, as a true return of said election in said precinct in writing that said J M D did receive in said election pre- cinct - - votes as a candidate for said office of , and that said J M H did receive in said election precinct - votes as a candidate for said office of ; whereas in truth and in fact the said J M 1 D received in said ELECTIONS. 127 precinct - - votes for said office of , and were counted for him, said J M D, for said office, by said board of election, after the closing of the polls of said general election, as they the said A B and C D then and there well knew ; whereas in truth and in fact said J M H received in said - - precinct at said election only votes for said office of - , as they, the said A B and C D, then and there well knew ; whereby the said A B and said C D and each of them did wilfully, feloniously, and fraud- ulently alter the said election returns of said - - pre- cinct. 1 FORM CHANGING BALLOT. [Penal Code, Sec. 48; Purity Act, Sec. 26.] [Proceed as in preceding form to three asterisks, and continue as follows:] And the duly qualified voters of said precinct voted for the duly and legally nominated candidates for said office of , to wit : [here insert names of candidates voted for] That after the votes had been polled in said election precinct, and while the same were being counted and can- vassed by the regular election officers of said precinct, and before the said count and canvassing had been completed, the said A B on or about the day of - , 190 , at the county of - , state of California, did wilfully, unlaw- fully, and feloniously change a certain ballot which had been legally voted in said precinct, after it had been depos- ited in the ballot box in said precinct, and before the same had been counted by the said election officers as num- ber of ballots lawfully voted in said precinct, and which said ballot had been legally voted by J J M, for said office of , by then and there wilfully, unlawfully, and feloniously stamping an impression of a cross with a stamp similar to those regularly used by electors to designate their votes upon blank ballots furnished for that purpose opposite to the name of R W for the said office of upon said ballot. i People v Buckley, 116 Cal. 146; People v. Egan, 116 Cal. 287. 128 CRIMINAL LAW AND PROCEDURE. K)KM NEGLECT OF DUTY BY OFFICERS. [Section 29, Purity Act.] [ IVoi-ivd as in preceding form but one, to two asterisks, and then as follows:] That after said election in said precinct was holden, and after the polls thereat were closed, the votes cast at said election were counted and tally lists of such counts were made in writing, and thereupon it became and was the duty of the defendant, and all members of said board of election, to sign, certify, and attest, as required by law, true and correct tally lists and attachto said tally lists lists con- taining the names of candidates voted for, and for what office, and the number of votes cast for each candidate at said election, in said precinct, for delivery to the county clerk of said county of , state of California, that in violation of his sworn duty as such officer, to wit, inspector of said election in said precinct aforesaid, the said defend- ant, on or about the day of , 190 , and while act- ing as such officer of said election, and upon and as a mem- ber of said board of election in said precinct aforesaid, and in his official capacity, as such election officer as aforesaid, wilfully, knowingly, and fraudulently, did neglect and refuse to perform his duty, in contravention and violation of the provisions of the laws of said state of California, relating to elections, in that he did wilfully, knowingly, and fraudulently, refuse and neglect to sign and certify to the tally lists of said election in said precinct aforesaid. FORM INTERFERING WITH ELECTION OFFICERS. [Purity Act, sec. 23.] That on the day of , 190 , at the county of , state of California, there was regularly held an election for state, legislative, and county officers; that among the places where votes were lawfully cast in said election in said county, was the polling place for the precinct of said county, that after said election had been had in said precinct and while the votes were being counted ami canvassed there, said A B wilfully, unlawfully, and feloniously interfered with the regular election officer of ELECTIONS. 129 said precinct, then and there conducting the canvassing of the lawful votes cast in said precinct, by then and there wil- fully, and unlawfully acting as a clerk in tallying the said votes cast in said precinct [or as an inspector, as the case may be], and then and there calling off and pretending to call off to the acting clerk keeping tallies of the votes cast in said precinct, and to be counted by them as votes actually cast in said precinct, the names of candidates regularly voted for to fill official positions by the qualified voters of said precinct, from the ballots regularly cast in said pre- cinct, said defendant not then and there being an officer or clerk of the election board of said precinct, either appointed or qualified as provided by law, and then and there wilfully prevented the canvass of said vote in said precinct from being fairly had and lawfully conducted. FORM ELECTION OFFICERS' NEGLECT OF DUTY. [Purity Act, Section 29.] That on the - - day of - , 190 , at said county of -, state of California, there was regularly held an election for state, legislative, and county officers ; that among other places where votes were lawfully cast was the polling place of precinct of said county ; that at said election A B was a regularly appointed, qualified and acting inspector of the election board of said precinct of said county, and while being such inspector did wilfully, unlawfully, and feloniously neglect to perform the duties of such inspector as required by law, and did then and there wilfully, unlawfully, and feloniously permit one C D to act as an inspector of voters in said .precinct, he, the said C D, not being then and there a member of said elec- tion board of said precinct, and not qualified to act as such inspector, as he, the said A B, then and there w r ell knew. FORM ELECTION OFFICER, WRONGFULLY COUNTING VOTES. [Penal Code, Sec. 51; Purity Act, Sec. 27.] That on the day of - , 190 , at the said county of state of California, there was regularly held an election for state, legislative, and county officers ; that CRIMES--9 130 CRIMINAL LAW AND PROCEDURE. among other places where said election was held on said day, and where votes were authorized to be cast, was the polling place of - , in the - - precinct of said county ; that at and during said election and at all times hereinafter mentioned, said A B was a regularly appointed, qualifiedy and acting inspector of said election board of said == precinct ; that among others who were voted for by the electors of said county and in said election precinct at said election were candidates for - [naming the office] of said county; that at said election among others one C D and one E F were candidates for said office of ; that said A B, while acting as inspector of said precinct of said county, and while canvassing the lawful votes of said precinct, wilfully, unlawfully and feloniously, and with the intention of defrauding said E F of the legal votes cast for him in said precinct, did read and call out to the tally clerk then and there engaged in tallying- the votes in said precinct, the name of C D, as having received a vote for said office of upon a ticket, which said vote had been counted for said E F, and did then and there wilfully, knowingly and feloniously add said vote to the votes cast in said precinct for said C D for said office of aforesaid, and did subtract said vote from the votes actually cast in said precinct for said E F for said office of . FORM UNLAWFULLY ACTING AS AN ELECTION OFFICER. [Penal Code, sec. 61.] At a general election held throughout said state of Cali- fornia for county and state officers, without having been appointed by the board of supervisors of said county, or the electors of the election precinct hereinafter named, or in any manner being appointed, or without being sworn or qualified in any manner, did on or about the said - day of , 19 , at said county and state, wilfully, unlaw- fully and feloniously act as a clerk of election in the - election precinct of said county. CHAPTER XIX. EMBEZZLEMENT. [Penal Code, sees. 503-514.] DEFINED. Embezzlement is the fraudulent appropriation of prop- erty by a person to whom it has been intrusted. 1 The essential element of the offense is the fraudulent conversion or misappropriation by the defendant of property received by him in a fiduciary capacity. 2 It is a statutory offense unknown to the common law and may cover a case in which the property fraudulently converted had not been in the possession of the prosecutor. 3 As has been shown that embezzlement is distinguished from larceny in this, that in larceny there must be a trespass or felonious taking of property with intent to steal, while in embezzlement the possession is lawful, but the crime consists in the felonious misappropriation or conversion. PROPERTY SUBJECT OF EMBEZZLEMENT. Property here means the same as it does under an indict- ment for larceny, and includes all kinds of personal prop- erty. Shares of stock constitute property capable of embez- zlement. 4 WHAT AMOUNTS TO A CONVERSION. There must be some dealing with the property inconsist- ent with the relation existing between the parties when the property was placed in the possession of the defendant ; in other words, there must be a proof of a fraudulent conver- * Penal Code 503; People v. De Lay, 80 Cal. 5J. 2 People v. Wyman, 102 Cal. 552; People v. Gordon, 133 Cal. 328. a People v. Gallagher, 100 Cal. 466. 4 People v. Williams, 60 Cal. 1. 132 CRIMINAL LAW *NI> PROCEDURK. sion, 5 such as the substitution of worthless securities in place of good ones; or where an attorney collects money for his client and appropriates it without informing the client of its collection ; 7 or where the county assessor col- lects moneys and does not return them to the office. 8 But embezzlement by a guardian is not shown by a failure to pay bills ordered by the court to be paid, even though it appears that he drew the money of his ward from the bank. The conversion necessary for embezzlement is the taking of the property of another for the defendant's own use, knowing that such taking is without right and without the consent of the owner. A mere failure to comply with pecuniary obligations does not amount to an embezzle- ment. 10 And where the property is taken under a claim of title made in good faith by the defendant, it is not embez- zlement. 11 But an offer to return the stolen property is not a defense, nor is the giving of an indemnity : 12 nor is the actual restoration of the property any defense. 13 The neglect of a secretary of a corporation to examine the books of the corporation kept by another person, is not sufficient to sustain a charge of embezzlement. The presumption of innocence overcomes all other presumptions, and the defendant cannot thus be charged with knowledge of the condition of the books. 14 DEMAND. In order to charge a person with embezzlement of moneys which have come . into his possession lawfully, a demand for the money must have been made, or the time within which it is to be applied for the uses intended must have expired. 18 But no demand is necessary upon one ' People v. Wyman, 102 Cal. 552. o People v. Leonard. 106 Cal. 302. ". People v. Treadwell, 69 Cal. 229. * People v. Cobler, 108 Cal. 538. People v. Page, 116 Cal. 386. > People v. O'Brien, 106 Cal. 104. People v. Laplque, 120 Cal. 25. 2 People v. De Lay, 80 Cal. 52; Penal Code 513 People v. Royce, 106 Cal. 173. 14 People v. Blackman, 127 Cal. 248 10 People v. Wyman, 102 Cal. 552. EMBEZZLEMENT. 133 collecting money without authority. 16 And the refusal by an agent to pay on demand is not evidence of conversion unless the person making the demand had authority to do so. 17 EMBEZZLEMENT BY AGENTS. Where an agent is authorized to sell, he is guilty of embezzlement where he makes a sale with the fraudulent intent secretly to convert the proceeds therof. 18 In order to charge an agent with embezzlement, it is requisite to show (i) that he was an agent; (2) that he received the money belonging to his principal, and (3) that he con- verted it to his own use with intent to steal the same. 19 The essential elements of the crime are the fiduciary rela- tion which arises where one intrusts property to another, and the fraudulent appropriation thereof by the latter. 20 The agent is estopped to deny the receipt of the money in the course of his agency, where the money has been ostensibly received as such. 21 The mere fact that an admin- istrator received more money that he accounted for, in the absence of inculpatory facts, does not amount to embez- zlement. 22 BY A PUBLIC OFFICER. The mere omission of a public officer to pay over money received by him is not sufficient to convict ; 23 as he might retain it under a claim of right. 24 And there must be a is People v. Van Ewan, 111 Cal. 144. i? People v. Tomlinson, 66 Cal. 344. is People v. Doane, 77 Cal. 560. 19 Ex parte Hedley, 31 Cal. 109. The cases of Ex parte Hedley, 31 Cal. 109, and People v. Bailey, 23 Cal. 570, were under a statute which provided that the agent must receive the property from his employer, but under the present statute, it is immaterial whether it be received in the course of his employment or not, consequently, it is not necesssary now that the money or property should be received in the course of the agent's employment. , -" People v. Gordon, 133 Cal. 328. 21 People v. Treadwell, 69 Cal. 226; People v. Royce, 106 Cal. 187; People v. Leonard, 106 Cal. 310; People v. Gallagher, 100 Cal. 446; Ex parte Hedley, 31 Cal. 109. 22 people v. Gale, 77 Cal. 120. 23 People v. Westlake, 124 Cal. 452. 24 People v. Carrillo, 54 Cal. 63; People v. Hamilton, 103 Cal. 489. 134 CRIMINAL LAW AND PROCEDURE. demand shown before the officer can be charged with guilt unless the evidence otherwise shows that the money was appropriated with felonious intent. 20 But where an assessor makes no return to the office of the moneys col- lected, it is proof of conversion. 26 And where the evidence shows that the officer paid out more moneys than he received, a verdict of conviction will be reversed. 27 INTENT. The fraudulent appropriation and conversion must be shown to establish the intent. 28 The felonious intent is a necessary element, and where there is a dispute as to the account, no intent to convert is shown. 20 VENUE. The venue must be laid where the conversion was had unless the property was received with intent to convert it. 30 The crime is complete, however, the moment the property is taken with intent wrongfully to appropriate it, regardless of its subsequent removal and sale in another county. 31 But the venue may be laid in any county where the offense was committed, or where the property was taken. 32 Where the goods were taken by an agent in one county and sold in another, and the proceeds there appro- priated, the venue is in the county of the sale and appro- priation. 33 The crime may be punishable in this state, if consummated here, although it was commenced elsewhere. 84 EVIDENCE. Where the embezzlement is by an acting deputy it is not necessary to show a proper qualification of the officer because the law presumes that those acting have authority. 38 2 People v. Royce, 106 Cal. 173; People v. Page 116 Cal 386. 2 People v. Cobler, 108 Cal. 538. 27 People v. Westlake, 124 Cal. 452. 28 People v. De Lay, 80 Cal. 52 2 People v. O'Brien, 106 Cal. 104. so People v. Murphy, 51 Cal. 376; Jeople v. Scott, 74 Cal. 96; People v. Gordon, 133 Cal. 331. 3 People v. Fly, 107 Cal. 497. '2 People v. Salorse, 62 Cal. 139. 33 Ex parte Palmer. 86 Cal. 631. n Ex parte Hedley, 31 Cal. 108. 38 People v. Cobler, 108 Cal. 538. EMBEZZLEMENT. 135 Proof of a cle facto corporation is sufficient, and oral testi- mony may be introduced to show who its officers are. 36 The books of the corporation kept by a bookkeeper, since dead, are not admissible against a secretary of the corpora- tion, accused of embezzlement without proof that he knew their contents or was responsible for their condition. 37 In order to explain the character of the transaction out of which the alleged embezzlement grew, evidence of similar contracts made by the defendant are admissible. 38 Proof of a part of the property alleged in the indictment to have been stolen will sustain a conviction. 39 Evidence that the defendant had collected other moneys and failed to account therefor may be admitted for the purpose of showing guilty knowledge and criminal intent. 40 And on a charge of embezzlement of public funds, evidence of a payment of moneys into the treasury by a surety on the official bond of the accused may be introduced. 41 OWNERSHIP. Under a charge of embezzlement of the proceeds of a note endorsed for collection, the ownership of the endorser is sufficient to sustain the allegation of ownership. 42 And where the secretary of a corporation is accused of filling up signed checks in his own favor ,1 the checks are the property of the corporation and not of the bank on which they are drawn. 43 INDICTMENT. The description of the property in embezzlement should be the same as in larceny. 44 The particular kind of money embezzled need not be specified. 45 In case of a conversion by a bailee, the mode of the conversion, the description of 36 People v. Leonard, 106 Cal. 302. '- People v. Blackman, 127 Cal. 248. as People v. Doane, 77 Cal. 560. 39 People v. Gray, 66 Cal. 271. 40 People v. Cobler, 108 Cal. 538; People v. Meyce, 86 Cal. 393. *i People v. Findley, 132 Cal. 301. 42 People v. Treadwell, 69 Cal. 226. 43 People v. Gallagher, 100 Cal. 466. 44 People v. Cox. 40 Cal. 275. 45 People v. Treadwell, 69 Cal. 226. 136 CRIMINAL LAW AND PROCEDURE. the property and its value should be distinctly set forth. 4 ' But the information will be sufficient as to the bailee, if the facts show such a relation without designating the agency by any definite name. 47 The facts being stated the agency is a question for the jury. 48 PENALTY. If of public funds, imprisonment in the state prison from one to ten years. Otherwise, same as larceny of same amount. Thus the embezzlement of a horse is a felony, regardless of its value, and is punishable as for grand lar- ceny. 40 FORM EMBEZZLEMENT BY CLERK OR SERVANT. [Penal Code, sec. 508.] That the said A B on or about the day of , 190 , at the county aforesaid, was clerk and servant to one C D, and being clerk and servant as aforesaid, by virtue of his said employment as such clerk and servant, there came into his control and care, for and on account of the said'C D, the sum of - - dollars, lawful money of the United States: and the said A B aforesaid, so received and took into his control and care, the said money for and on account of the said C D, and afterwards, to wit, on the day of - , 190 , in the county aforesaid, wilfully, unlawfully, feloniously and fraudulently did embezzle, con- vert and appropriate the same to his own use. 60 FORM EMBEZZLEMENT BY TRUSTEE. [Penal Code, sec. 506.] That on the day of - , 190 , in the matter of the estate and guardianship of C D, then pending in the Supe- rior Court in and for the county of , state of , said A B by order of said court duly given and made, was People v. Cohn, 8 Cal. 42; People v. Wlnkler, 9 Cal. 236; People v. Peterson. 9 Cal. 315; People v. Johnson, 71 Cal. 390. People v. Johnson, 71 Cal. 384. People v. Meyce, 86 Cal. 393. People v. Salorse, 62 Cal. 139; People v. Wickham 116 Cal. 384. 60 People v. Treadwell. 69 Cal. 226. EMBEZZLEMENT. 137 appointed guardian of the estate of the said C D, and afterwards duly qualified as such guardian ; and on the day of , 190 , being then and there intrusted with and having in his control the sum of dollars in law- ful money of the United States as guardian, trustee and agent of the said C D, an insane person, for the use and benefit of the said C D, then and there the property of and belonging to the said C D, did then and there, to wit, at the said county of - , on the -- day of - , 190 , wilfully, unlawfully, feloniously and fraudulently embezzle, convert and appropriate the same to his own use. 51 FORM BY AN OFFICER OF A PRIVATE ASSOCIATION. [Penal Code, sec. 504.] That the said A B, on or about the day of , 190 , at the county of - , was an officer, to wit, the treasurer of - , an association existing under and pursuant to the laws of the state of California, and as such officer, then and there came and was under his control and in his possession by virtue of his trust as such officer, dollars in lawful money of the United States, and the said A B, while said money was so in his possession and- under his control by virtue of his trust as such officer, then and there, to wit, on or about the day of , 190 , at said county of - , did wilfully, unlawfully, feloniously and fraudulently appropriate said money to his own use, and not to a use in the due and lawful execution of his said trust, the said money then and there being the property of said association. 52 FORM EMBEZZLEMENT BY A PUBLIC OFFICER. [Penal Code, sec. 504.] That the said A B, on or about the day of , 190 , at the county of - , state of California, was the duly appointed, qualified and acting secretary, clerk and servant of certain state officers of said state of California, to wit, of the board of state harbor commissioners [otherwise known and designated as the state board of harbor commissioners] si People v. Page, 116 Cal. 387. 52 People v. Mahlman, 82 Cal. 585. 138 CRIMINAL LAW AND PROCEDURE. then and there duly appointed, qualified and acting as such board aforesaid, under and by virtue of the laws of the state of California, and by virtue of, and in the course of his said employment as such secretary, clerk and servant of said board of state harbor commissioners aforesaid, [other- wise known and designated as the state board of harbor commissioners, as aforesaid] there came into and was in the control, care, possession and custody of him, the said A B, certain public moneys, to wit, the sum of - dollars, in lawful money of the United States, and then and there being of the value of - dollars, lawful money of the United States, and then and there being the personal property of the state of California, aforesaid, which said public moneys had, on said day last aforesaid, been paid into the office cf said board, and received by said A B, for and on behalf of said board, as such secretary of said board as aforesaid ; and after the said public moneys, as afore- said, to wit, the sum of dollars, as aforesaid, had come into the control, care, custody and possession of him, the said A B as such secretary, clerk and servant of the board of state harbor commissioners, as aforesaid, to wit, at said county of , state aforesaid, on the - - day of , 190 , he, the said A B, to wit, at the said county aforesaid, and on the day of , 190 , last aforesaid, did then and there fraudulently and feloniously, and not in the due and lawful execution of his employment and trust as such secretary, clerk and servant of said board, while he, the said A B so as aforesaid, was the secretary, clerk and servant of said board of state harbor commissioners, [otherwise known and designated as the state board of har- bor commissioners] and while he, the said A B had said public moneys aforesaid in his possession and under his control as such secretary, clerk and servant, as aforesaid, convert, appropriate and embezzle the said publ'^ moneys to his own use. 58 People v. Gray, 66 Cal. 271. EMBEZZLEMENT. 139 FORM EMBEZZLEMENT BAILEE. [Penal Code, sec. 507.] That said W F G, on or about the day of - , 190 , was, by one P H, intrusted as bailee, with certain personal property, to wit, one gold ring, with diamond setting, of the value of two hundred dollars, in gold coin of the gov- ernment of the United States of America, which said ring was then and there the personal property of the said P H, and thereafter, on or about the -- day of , 190 , at and in the county and state aforesaid, the said W F G did wilfully, unlawfully and feloniously did embezzle and fraudulently convert to his own use the said gold ring with diamond setting, without the consent of the said P H. 54 EMBRACERY, see BRIBERY. 54 People v. Gordon, 133 Cal. 328. CHAPTER XX. ESCAHKS. [Penal Code, sees. 105-111.] The imprisonment under which a person is held must be lawful in order to make a departure therefrom an escape. Departure from a confinement not authorized by law is not an escape, neither can one who assists in such a departure be guilty of assisting in an escape. 1 An injury to a public jail in attempting to escape may be prosecuted as such and as an attempt to escape. 2 PENALTY. An escape from the state prison for a term less than life is punishable by imprisonment therein for a term equal to the term which was being served; and an attempt to escape from such an imprisonment is a felony, the impris- onment for which offenses to commence at the expiration of the sentence being served. An escape from any other imprisonment is a misdemeanor. FORM ESCAPE. That on the day of - , 190-, J $ then and there being one of the justices of the peace within and for the county of M, legally authorized and duly qualified to discharge and perform the duties of that office, one J N was then and there charged before said J S by one C H, upon the oath of the said C H, that the said J N had then lately before, violently and against her will, feloniously ravished and carnally known the said C H ; and the said J N was then and there examined before the said J S, justice of the peace aforesaid, touching the said offense so to him charged as 1 People v. Ah Teung, 92 Cal. 421. 2 People v. Sheldon, 68 Cal. 434. ESCAPES. 141 aforesaid; upon which the said J S, justice of the peace, as aforesaid, did then and there make a certain warrant of commitment Under his hand and seal, in due form of law, bearing date the said - - day of - , 190 , aforesaid, directed to the keeper of the jail situated at C, in said county, commanding- the said keeper that he should receive into his custody the said J N, brought before him and charged, upon the oath of the said C H, with the premises above specified ; and the said justice of the peace, by the said warrant, did command the said keeper of the jail situated at C. in the county of M, to safely keep the said J N there until he by due course of law should be discharged ; by vir- tue of which said warrant, afterwards, to wit, on the day and year aforesaid, the said J N was taken and conveyed to the said jail at C aforesaid, and then and there delivered to one W S, the keeper of the said jail ; and the said W S, keeper of the said jail, then and there received the said J N in his custody in the jail at C aforesaid; * * that the said J N afterwards, and whilst he so remained in custody of the said W S, keeper of the said jail, under and by virtue of the warrant aforesaid, to wit, on! the day of , in the year last aforesaid, feloniously, unlawfully, wilfully and injuriously did break the jail situated at C aforesaid, by then and there cutting and sawing two iron bars of the said jail, and by then and there breaking, cutting and removing a great quantity of stone, parcel of the wall of the jail afore- said ; by means whereof the said J N did then and there escape and go at large withersoever he would. FORM CONVEYING INSTRUMENTS TO PRISONER. Proceed as in preceding form to asterisks, and then as follows : That one J T, afterwards, and whilst the said J N was, and remained in the custody of the said W S, in the jail of - - aforesaid, namely, on the day of , in the year last aforesaid, in the county aforesaid, feloniously and unlawfully did convey, and cause to be conveyed into the said jail of , two steel files, being instruments proper to facilitate the escape of prisoners ; and the same files, 142 CRIMINAL LAW AND PROCEDURE. being such instruments as aforesaid, then and there felon- iously did deliver, and cause to be delivered, to the said J N, without the consent or privity of the keeper of the said jail of - , the said J N then and there being a prisoner in the said jail and then and there lawfully detained for the felony and rape aforesaid, in the said warrant of commitment above mentioned and expressed, and that the said files, being such instruments as afore- said, were then and there so conveyed into the said jail, and delivered to the said J N by the said J T, as aforesaid, with the felonious intent then and there to aid, assist, and facilitate the said J N, so being such prisoner and in cus- tody as aforesaid, to escape and attempt to escape from and out of the said jail. 8 FORM INJURY PUBLIC JAIL. Unlawfully, wilfully, intentionally, and feloniously did injure the county jail of - county, by digging a hole in the floor thereof, and prying up, pulling down, and breaking a certain door belonging to and being a portion of said jail, which said jail is a public jail for the con- finement of prisoners. 4 s Forms adapted from Archbold. People v. Sheldon, 68 Cal. 434. CHAPTER XXI. KXTORTION. [Penal Code, sec. 518.] DEFINED. Is the obtaining of property from another, with his con- sent induced by wrongful use of force or fear, or under color of official right. 1 FEAR. The force or fear must be the operating or controlling cause which produces the consent of the owner to part with the property. If it be only a partial cause it is not suffi- cient. It must be the whole cause. 2 To constitute the offense the fear must be induced by a threat to do an unlaw- ful injury to the person, or property of an individual, or a relative or member of- his family, or to accuse him or them of a crime, or to expose or impute to him or them some deformity or disgrace, or to expose any secret affecting him or them. 3 It includes fear induced by threats to accuse of a crime against the laws of the United States. 4 ILLEGAL FEES. The fees demanded must have been illegal and such as the officer had no right to demand, and have been taken wilfully and corruptly. s SENDING THREATENING LETTERS. 6 The language used must be adapted to imply a threat to 1 People v. Hoffman, 126 Cal. 366. 2 People v. Williams, 127 Cal. 212. 3 Penal Code, 519; People v. Cadman, 57 Cal. 562. * People v. Sexton, 132 Cal. 37. s People ex rel Perley, 2 Cal. 564. e Penal Code 523, 650, 660. 144 CRIMINAL LAW AND PROCEDURE. do an unlawful injury to the person or property of the individual threatened, or to a relative or member of his family, or to accuse him or them of a crime, or to expose or impute to him or them some deformity or disgrace, or to expose some secret affecting him or them. 7 It is not neces- sary that the threat should be apparent from the face of the letter, nor that it should be implied therefrom, but it is sufficient if the language used is adapted to imply such a threat. 8 A variance which does not alter the sense of the letter as expressing or implying the threat should be disregarded." EVIDENCE. Immoral conduct existing between two defendants is not admissible to prove that they were guilty of extortion. 10 INDICTMENT. An indictment charging the crime of extortion must allege all the facts necessary to constitute the offense. It must show by facts set out that the property was obained with consent of the owner by a wrongful use of force or fear. 11 PENALTY. Where threat is made to extort money, imprisonment in state prison not exceeding five years. Where threat is made to accuse another of crime, or to expose failings or infirmities without intention to extort money, imprisonment in county jail not exceeding six months or fine not exceed- ing five hundred dollars or both. FORM FOR THREATENING LETTER. With intent feloniously to extort money and property from one C D, did then and there wilfully, unlawfully, and feloniously send to said C D a certain letter in writing the wording of which did express and implv and was adapted T People v. Choynski, 95 Cal. 640; People v. Tonielli, 81 Cal. 275. s People v. Choynski, 95 Cal. 640. People v. Tonielli, 81 Cal. 275. >o People v. Williams, 127 Cal. 212. >i People v. Hoffman, 126 Cal. 366. EXTORTION. 145 to imply a threat to impute to the said C D disgrace, and to expose the same, which said letter and writing was then and there in the words and figures following, to wit : [Here set out letter in full]. 12 FORM EXTORTION GENERALLY. Did wilfully, unlawfully, and feloniously extort and obtain from one C D with the consent of the said C D the sum of dollars, lawful money of the United States [or other property, describing it] ; that said consent of said C D was then and there obtained by fear induced by means of a threat then and there made by the said A B to complain of and publicly accuse the said C D of the crime of robbery [or other threat, describing it]. FORM EXTORTION BY OFFICER. That said A B being then and there the duly elected, qualified, and acting constable of - - township, in said county [or other officer, describing him] did take and receive from one C D a certain writ commonly called a writ of attachment, and thereupon unlawfully, wilfully, cor- ruptly, and feloniously, and under color of official right did extort and obtain of and from the said C D the sum of - - dollars, lawful money of the United States as and for a fee due to the said A B as such officer as afore- said for serving and returning said writ as the said A B then and there claimed and alleged ; while in truth and in fact, no fee whatever was then due from the said C D to the! said A B as such officer, as aforesaid, for such services, and as the said C D then and there well knew. 12 People v. Tonielli, 81 Cal. 275. CRIMES--10 CHAPTER XXII. FALSE ENTRY IN BOOKS OF COR FORATION. [Penal Code, sec. 563.] DEFINED. The omission, or concurrence in omitting by an officer or agent of a corporation, or joint stock association, with intent to defraud, or the making, or concurrence in the making of any material entry in any book of accounts, or other record or document kept by such corporation, or association, or the destruction, alteration, mutilation, or falsification of any of the books, papers, writings, or secur- ities of such corporation or association. It must appear that the entries or omissions were made with intent to defraud, and that they were not made through mistake of fact. In the indictment it is necessary to set out the acts done or omitted, and allege that they were done or omitted with intent to defraud. It is not required to state the facts showing how the entries or omissions could have resulted in defrauding. That is purely a matter of evidence. If it is apparent from the face of the indict- ment that the entries are such that under no possible state of circumstances, they could have resulted in fraud, the indictment would be open to the question that it did not show where the entry or omission was false. But where the court cannot say from an inspection of the same that the entries could not have resulted in defrauding the indict- ment is sufficient. 1 PENALTY. Imprisonment in the state prison not less than three nor ' People v. Leonard, 103 Cal. 200; People v. Palmer, 53 Cal. 615. FALSE ENTRY. 147 more than ten years, or by imprisonment in the county jail not exceeding one year, and a fine not exceeding five hun- dred dollars, or by both such fine and imprisonment. FORM FALSE ENTRY. Then and there was an officer, to wit, - , [or director or agent] of C D, a corporation, and as such officer, [or director or agent] had under his control and in his possession a certain record known as [here give name of record] which said record was then and there the property of and kept by said corporation, and the said A B, while said record was so in his possession and under his control, by virtue of his trust [or office or employment] and as such officer [or director or agent] aforesaid, then and there, with intent to defraud said corporation of the sum of - dollars, wilfully, unlawfully, and feloniously did make in said record the following false entry, to wit: [here set out entry]. 2 FORM OMITTING TO MAKE ENTRY. Then and there was an officer, to wit, [or director or agent] of C D, a corporation, and as such officer [or director or agent] then and there received and possessed himself of - dollars, lawful money of the United States, the same being then and there the property of said corporation. That said money was not received by said A B in payment of a just demand due him, the said A B, and while so possessed thereof, as aforesaid, the said A B, with intent then and there to defraud said corporation, wil- fully, unlawfully, and feloniously omitted to make, or cause or direct to be made, any entry thereof in the books or accounts of said corporation. 2 People v. Leonard, 103 Cal. 200. CHAPTER XXIII. PAUSE IMPRISONMENT. [Penal Code, sec. 236. J DEFINED. It is the unlawful violation of the personal liberty of another. The prosecution must prove the imprisonment; but this being done, the law presumes it unlawful, the bur- den is cast upon the defendant of justifying it, by proving that it was lawful. 1 PENALTY. 2 It is punishable by fine not exceeding five hundred dol- lars, or by imprisonment in the county jail not more than one year, or both. If effected by violence, menace, fraud or deceit imprisonment in state prison from one to ten years. FORM FALSE IMPRISONMENT. Wilfully and unlawfully and without any warrant or authority of law. did arrest and detain one C D. without the consent and against the will of said C D, and then and there and thereby unlawfully and feloniously did violate the personal liberty of the said C D. 1 People v. McGrew. 77 Cal. 560. 2 Penal Code 237. CHAPTER XXIV. FALSE RERSONATION. [Penal Code, sees. 528-530.] DEFINED. This is the false personating of another for the purpose of marriage, 1 or of doing any act whereby the person falsely personated might become liable to a suit or prose- cution, or to pay money, or to incur any charge, forfeiture, or penalty, or whereby any benefit migh accrue to any other person. 2 To personate another is to assumt to be that other person ; the mere signing of the name of another is not personating him. It is essential that the defend- ant actually personated or assumed the character of another. 3 It does not include the falsely assuming an official character, but is intended to cover acts done by one person while representing himself to be another and differ- ent person. 4 PENALTY. If for marriage, or pretended marriage, imprisonment in state prison not exceeding five years. 5 If for receiving money or property, same as larceny. Other personations whereby any benefit might accrue, imprisonment in county jail not exceeding two years, or fine not exceeding five thousand dollars. 6 FORM FOR MARRYING IN AN ASSUMED NAME. Wilfully, unlawfully, falsely, and feloniously did per- sonate and represent himself to be one C D, and in such assumed character did then and there marry one E F. 1 Penal Code 528. 2 Penal Code 529. s People v. Maurino, 77 Cal. 436. * People v. Knox, 119 Cal. 73. 5 Penal Code 528. e Penal Code 529. 160 CRIMINAL LAW AND PROCEDURE. FORM FOR PERSONATING BAIL. Wilfully, unlawfully, falsely, and feloniously did person- ate and represent himself to be one C D, and in such assumed character did then and there become bail and surety for one E F, in the name of said C D, in the Superior Court of California, in and for the county of , in a certain action then pending in said court in which - was plaintiff and was defendant. FORM FOR ACKNOWLEDGING A DEED IN THE NAME OF ANOTHER. Wilfully, unlawfully, falsely, and feloniously did per- sonate and represent himself to be one C D, and in such assumed character, did then and there acknowledge before one E F, who was then and there a notary public in and for said county of , duly commissioned and sworn, the execution of a certain deed and conveyance of land, situ- ate in said county, from the said C D to one G H, with intent that the same might be recorded, delivered, and used as true. FORM FOR OBTAINING PROPERTY BY FALSELY PERSONATING ANOTHER. Wilfully, unlawfully, falsely, and feloniously did per- sonate and represent himself to be one C D, and in such assumed character, did then and there unlawfully and feloniously receive from one J D, a certain horse, of the value of dollars, which said horse was by said J D, intended to be delivered to the said C D. CHAPTER XXV. FRBTENSBS. [Penal Code, sec. 532.] DEFINED. "The .language of the code defining the offense is: 'Every person who knowingly and designedly by false or fraudulent representation or pretenses defrauds any other person of money or property, or who causes or procures others to report falsely of his wealth or mercantile char- acter, and by thus imposing upon any person obtains credit, and thereby fraudulently gets into possession of money or property, is punishable in the same manner and to the same extent as for larceny, of the money or property so obtained.' " "Similar provisions, varying slightly in verbiage, but hav- ing a common purpose, are to be found in the statutes of every state of the union, so far as our investigation extends, and like their English prototypes, the earliest of which is 30 George II, chapter 24, section I, are the outgrowth and expansion of the old offense of 'cheats' or 'cheating' as it existed at the early common law proper. * * * Cheating at common law was a fraud perpetrated by means of a false symbol or token, such as selling goods by false weights or measures, or other like act or thing of a char- acter calculated to deceive and defraud the public or the individual to their pecuniary injury, and against which ordinary prudence could not guard. The inadequacy of this offense to meet the demands of advancing methods of trade arose in part from the fact that it did not embrace any act or thing accomplished without the aid of some false token. Mere spoken lies or misrepresentations,' or 152 CRIMINAL LAW AND PROCEDURK. verbal perversions of the truth of whatsoever nature, employed to defraud, did not constitute the offense ; and it was in part to remedy this defect or omission that the stat- utes creating the offense of false pretenses were enacted, and which, by reason of their wider comprehension of the arts and methods of cheating, have largely superseded the common law offense." "In their origin both the common law and the statutory offenses were undoubtedly designed and aimed solely at protecting personal property, and in aid of the laws against larceny and theft. Indeed, they appear to have sprung into being largely by reason of certain defects in the application of the laws against larceny. Among the rea- sons stated in the statute 1 for enlarging the offense of cheating are that 'many light and evil-disposed persons, not minding to get their living by truth, etc., but compass- ing and devising daily how they may unlawfully obtain and get into their hands and possession goods, chattels, and jewels of other persons for the maintenance of their unthrifty living, and also knowing x that if they came to any of the same goods, chattels, and jewels by stealth, then they, being thereof lawfully convicted, etc., shall die therefore have now of late falsely and deceitfully con- trived, devised, and imagined privy tokens and counterfeit letters in other men's names, unto divers persons their spe- cial friends and acquaintances, for the obtaining of money, goods, chattels, and jewels of the same persons, their friends and acquaintances ; by color whereof the said light and evil-disposed persons have deceitfully and unlawfully obtained and gotten great substance of money, goods, chat- tels, and jewels into their hands and possession, contrary to right and conscience,' etc. ; and in one of the early stat- utes relating to false pretenses, it is recited that, whereas, 'a failure of justice frequently arises from the subtle dis- tinction between larceny and fraud,' etc. one or which distinctions being that when property was obtained by con- sent of the owner intending to part with the title, although i 33 Henry VIII. FALSE 'PRETENSE. 153 by the grossest fraud, it would not constitute larceny." 2 To constitute this offense four tiling's must be shown : ( I ) An intent to defraud; (2) actual fraud committed; (3) false pretenses used for the purpose of perpetrating the fraud; and (4) the accomplishment of the fraud by means of the false pretenses made use of for the purpose. The false pretenses must be the cause which induced the owtrer to part with his property. 3 The party defrauded must have relied upon the representations. 4 There must be also a knowledge on the part of the accused that the representa- tions were false." WHAT IS A FALSE PRETENSE. A false pretense is a representation of some fact or cir- cumstances calculated to mislead, which is not true ; or rather such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with some- thing of value. The pretense need not be in words, but may be gathered from the acts and conduct of the party. 6 If the contract is induced by false pretenses, the property received under such a contract is obtained thereby, 7 but the offense may be committed although ihe party suffers no loss, by reason of the fact of afterwards obtaining the prop- erty again. The parting with the property on the strength of the pretenses is the gist of the offense. 8 Deception, deliberately practiced, for the purpose of obtaining unfair advantage of another is fraud, and goods obtained thereby are obtained by fraud, and one deprived of his prbperty by such means is defrauded. 9 The intent of the person defrauded is not material. The offense is against the pub- lic and not against the individual, 10 and the carelessness of -' People v. Cummings, 114 Cal. 437. 3 People v. Wasservogle, 77 Cal. 175; People v. Jordan, 66 Cal. 10; People v. Bryant, 119 Cal. 595 4 People v. Gibbs, 98 Cal. 661. s People v. Millan, 106 Cal. 320. People v. Wasservogle, 77 Cal. 173. T People v. Martin, 102 Cal. 558. s People v. Bryant, 119 Cal. 595. 9 People v. Nesbitt, 102 Cal. 327. 10 People v. Martin, 102 Cal. 558. 164 CRIMINAL LAW AND PROCEDURE. the defrauded party in signing the note is not an element in the case. Thus, where prestidigitation or juggling hav- ing been practiced in the exchange of the note for another paper which the defrauded person believed he was signing,, lack of care, or gross negligence, cannot be imputed to him in signing the note, under the false pretense and repre- sentation that he was signing another paper. 11 Mere expression of opinion does not amount to a false repre- sentation ; 12 neither do tricks of the trade, nor exaggerated statements as to the value of the property, etc., for the customer is presumed to have knowledge of these mat- ters. 13 But the doctrine of caveat cmptor, as known in civil cases, does not apply. The guilt does not depend upon the degree of folly or credulity of the person defrauded, but it is proper to inquire whether the repre- sentations were of a character to induce belief in the mind of a person of ordinary intelligence. 14 The offense may be predicated upon representations as to solvency, notwith- standing the defendant had an honest intent to pay accord- ing to the contract; 15 upon a false representation to a woman to whom the defendant was engaged to be married by which he obtained money from her, 16 and upon a false statement as to title to property to a person who loans money on the strength thereof. 17 But property is not obtained by false pretenses where the owner parts with the property upon the strength of defendant's credit. 18 WHAT PROPERTY SUBJECT OF. The obtaining of a promissory note is property within the meaning of the statute on false pretenses, 19 and the note is a false token.-" It also includes the giving of a 11 People v. Skidmore, 123 Cal. 267. i* People v. Gibbs, 98 Cal. 661. a People v. Morphy, 100 Cai. 84. People v. Cuinmings, 123 Cal. 269. is People v. Wieger, 100 Cal. 352. i People v. Weir, 120 Cal. 279. IT People v. Hamberg, 84 Cal. 469. is People v. Mauritzen, 84 Cal. 37. i"Peop e v. Reed, 70 Cal. 529; People v. Cummings, 114 Cal, 499; People v. Skidmore, 123 Cal. 267. 2" People v. Gibbs, 98 Cal. 661. FALSE PRETENSE. 155 check on a bank where the defendant had no funds or credit, and the check is a false token ; 21 but the proof of obtaining a joint note when a note of one party is charged, will not sustain a conviction." It does not include defrauding of real estate. 23 DISTINGUISHED FROM LARCENY. In larceny the owner does not intend to part with title and possession, while in false pretenses he does. 2 * But larceny sometimes includes the obtaining of money by fraud where the title remains in the owner ; but where the title as well as the possession is parted with, the crime is that of obtaining property by false pretenses.'- 5 In false pretenses the title passes from the party defrauded to the party making the false representation. 20 If the possession has been obtained by fraud, trick, or device, and the owner of it intends to part with his title when he gives up the possession, the offense, if any, is obtaining- money by false pretenses. But where the possession has been obtained through a trick or device, with the intent at the time the party receives it, to convert the same to his own use, and the owner of the property parts merely with the possession, and not with the title, the offense is larceny. 27 The question of whether the crime is larceny or obtaining money under false pre- tenses, depends upon the question of fact whether the owner of the money, at the time of parting with the possession of it, intended to part with the title thereto. If he did not intend to part with the title, but merely gave possession for a special purpose, and in no event to be used by defendant for his own purposes, the offense of taking it, with intent to steal, is larceny, and not obtaining money under false 21 People v. Donaldson, 70 Cal. 116; People v. Wasservogle, 77 Cal. 175. 22 People v. Cummings, 117 Cal. 497. 23 People v. Cummings, 114 Cal. 437.. 24 People v. Martin, 102 Cal. 558; People v. Campbell, 127 Cal. 278; People v. Raschke, 73 Cal. 378; People v. Johnson, 91 Cal. 265; People v. Tomlinson, 102 Cal. 19. as People v. Rae, 66 Cal. 423. 26 People v. Johnson, 91 Cal. 265; People v. Shaughnessy, 110 Cal. 602; People v. Montarial, 120 Cal. 695. 27 People v. Tomlinson, 102 Cal. 23; People v. Raschke, 73 Cal. 378; People v. Shaughnessy, 110 Cal. 602. 156 CRIMINAL LAW AND PROCEDURE. pretenses. 28 And where the facts show larceny the defend- ant may l>e convicted of that crime, although they also would sustain a charge of obtaining money under false pretenses. 29 But where the evidence shows only larceny, the defendant cannot be convicted under an indictment for obtaining money by false pretenses. 30 EVIDENCE. The prosecutor need not testify directly as lo the effect of the representations upon him. 31 The falsity of the rep- resentation as to solvency may be proven by depositions taken in the insolvency proceedings? 2 The rules of evi- dence in civil cases as to direct or collateral attack on a contract by parties to it, is not applicable on a prosecution for false pretenses. 33 The admissions of the defendant are not "sufficielit to prove the corpus delicti?* and a conviction cannot be had on the uncorroborated testimony of the prose- cutor. 38 The delivery of the property and the vesting of title are questions for the jury. 36 VERDICT. The verdict, finding the defendant guilty as charged in the information, is not defective by reason of not finding the amount of money obtained by him from the fraud prac- ticed ; but the verdict, when taken in connection with the information becomes as certain as to the amount of money obtained as if the amount were expressly stated therein. 31 PENALTY. It is punishable in the same manner, and to the same extent, as for larceny of money or property so obtained. as People v. De Graaff, 127 Cal. 676. 2 People v. Campbell, 127 Cal. 278; People v. Frigerio, 107 Cal. 152. so People v. Lewis, 127 Cal. 207. si People v. Hong Quin Moon, 92 Cal. 41. 32 People v. Wieger, 100 Cal. 352. People v. Martin, 102 Cal. 558. a* People v. Simonsen, 107 Cal. 345. 36 People v. Gibbs, 98 Cal. 661. s People v. Donaldson, 70 Cal. 116. People v. Millan, 106 Cal. 320. FALSE PRETENSK. 157 INDICTMENT. When a description of the property forms a part of the false pretenses, it must be set out exactly as it was made by the defendant. 38 The falsity of the representa- tions cannot be alleged by way of a negative pregnant. 39 The facts constituting the false pretenses must be alleged with particularity ; fraud is a question of law to be deduced from the facts alleged. 40 FORM OBTAINING MONEY BY FALSE PRETENSES. With intent to defraud one, C D, of his property, unlaw- fully, knowingly, and designedly, falsely, and feloniously did represent and pretend to the said C D, that two certain bars and pieces of metal which he, the said A B, then and there had and produced to the said C D were both pure gold, and were of the value of one thousand dollars each and of the aggregate value of two thousand dollars, and the said C D then and there believing said false pretenses and representations, and being deceived thereby, was induced by reason of such false pretenses and representa- tions, so made as aforesaid, by the said A B to loan and deliver and did then and there deliver to said A B, on pledge and security of the said two bars and pieces of metal, the sum of eight hundred and thirty-one dollars in lawful money of the United States, which said money was so secured and obtained by the said A B. unlawfully, know- ingly, and designedly to defraud said C D, and which said bars and pieces of metal at the said time and place, when and where the same were pledged as aforesaid, were not gold, and had not any value beyond the value of so much brass, to wit, had not any value in excess of the sum of five dollars in lawful money of the United States, as the said A B, then and there well knew. 41 FALSE SWEARING, see PERJURY. FEMALE, see ABDUCTION AND SEDUCTION. 38 People v. Nesbit, 102 Cal. 327. so People v. Griffiths, 122 Cal. 212. f tin- crime of murder, and the law, out of regard for the frailties of human nature, disregards the actual intent and presumes that the homicide was without malice. 12 The intent to kill may also exist when the homicide is excusable or justifiable. 13 While in express malice an intent to kill is necessary, yet it need not be an intent to kill a particular person, as where A intending to kill B, kills C instead. 14 PRESUMPTION OF MALICE. The mere facts of killing being established, malice is presumed ; hence, if the killing be conceded, and no cir- cumstances in mitigation or extenuation be shown, the accused is, by presumption of law guilty of murder. 15 But there is no presumption as to the degree, it being a ques- tion for the jury. 18 If the attendant circumstances show that the act of kill- ing was done with malice, it is murder, otherwise it is only manslaughter. 17 Whenever one, in doing an act with the design of com- mitting a felony, takes the life of another, even accidentally, it is murder. The law measures the act which is malum in se substantially by the result produced, though not contem- plated, as if specifically intended. In such cases it sup- 12 People v. Freel, 48 Cal. 436; People v. Doyell, 48 Cal. 96; People v. Bruggy, 93 Cal. 481. 13 People v. Newcomer, 118 Cal. 263. i* People v. Miller, 121 Cal. 243; People v. Craig, 111 Cal. 460; People v. Foren, 25 Cal. 365. is People v. Bush ton, 80 Cal. 160; People v. Boling, 83 Cal. 380; People v. Stonecifer, 6 Cal. 405; People v. Miligate, 5 Cal. 127; People v. Roberts, 6 Cal. 217; People v. Langton, 67 Cal. 427; People v. Ah Gee Yung, 86 Cal. 44; People v. Bush, 71 Cal. 602; People v. March, 6 Cal. 541. i People v. Belencia, 21 Cal. 544; People v. King, 27 Cal. 514. IT People v. Evans, 124 Cal. 209; People v. Kerraglian, 72 Cal. 609. MURDER. 177 plies the intent to kill, holding the offender responsible for the natural and probable consequence of his acts. 18 If a woman not more than six weeks advanced in pregnancy be killed in an attempt to produce an abortion upon her, it is murder notwithstanding there was no intent to take life. 1 * WANTON RECKLESSNESS. When death results from the discharge of firearms into a crowd of persons with recklesss indifference to human life, it is as much a murder as if the offender had laid in wait for his victim.- Likewise if the accused kill the deceased upon a public highway without reason to apprehend any other or greater wrong than a mere trespass on his premises. 21 While the recklessness or unlawfulness of the act may be criminal, it may not be sufficient to show malice. 22 RESISTING ARREST. When an officer is killed in an endeavor to arrest a felon fleeing from the scene of his crime, it is murder. And it is not necessary that the officer had a warrant to make his kill- ing by the pursued person a felony. Neither is it necessary that the resisting person should be notified of the official character of the one attempting to make the arrest, or that he should be informed of the cause of his arrest. 28 DEGREES IN MURDER. To constitute murder in the first degree the killing must be wilful, deliberate and premeditated. A "wilful killing" is accomplished when there is a specific intent to take life. When such intent is founded on consideration, it is delib- erate, and when the deliberation precedes the intent it is premeditated. 24 There are certain kinds of murders which carry with them conclusive evidence of premeditation which is People v. Doyell, 48 Cal. 94; People v. Olsen, 80 Cal. 127; People v. Goslaw, 73 Cal. 323. is Ex parte Wolff, 57 Cal. 94. 20 People v. Bealoba, 17 Cal. 395. 21 People v. Dunne, 80 Cal. 347. 22 People v. Pearne, 118 Cal. 155. 23 People v. Pool, 27 Cal. 573. 24 People v. Pool, 27 Cal. 585. CRIMES--12 178 CRIMINAL LAW AND PROCEDURE. the law divides into two classes. The first class includes those murders perpetrated by means of poison, lying in wait, torture, etc. Here the means used is held to be con- clusive evidence of premeditation. 25 The second class includes murder done in the perpetration or attempted per- petration of burglary, robbery, rape, arson, or mayhem. Here the occasion is made conclusive evidence of premedi- tation. 28 Premeditation is likewise shown in murders per- petrated upon one person while the death of another is con- templated. Here there is the specific intent to kill which shows express malice and is murder in the first degree. 27 WHEN CIRCUMSTANCES DETERMINE DEGREE. As to murders perpetrated with express malice, that is with a specific intent to kill, or in pursuance of a design to commit the felonies named from which the law conclu- sively presumes such intent, all difficulty as to question of degree is removed. It is only in those cases which do not fall within these general classes that the distinction between the degrees is involved in doubt. Here the law leaves the degree to be determined from the facts of each case, 28 but prescribes for the government of the deliberations of the jury a certain general definition or test. To constitute the 25 People v. Williams, 43 Cal. 349; People v. Knott, 122 Cal. 410; People v. Miles, 55 Cal. 207; People v. Moore, 8 Cal. 90; People v. Bealoba, 17 Cal. 345; People v. San- chez, 24 Cal. 29; People v. Foren, 25 Cal. 364; People . v. Nichol, 34 Cal. 214; Ex parte Wolff, 57 Cal. 94. 2 People v. Miller, 121 Cal. 343; People v. Majors, 65 Cal. 38; People v. Keefer, 65 Cal. 233; People v. Vasquez, 49 Cal. SCO; People v. Bealoba, 17 Cal. 307: Pconle v. Olsen, 80 Cal. 126; People v. Craig, 111 Cal. 460; People v. Doyell, 48 Cal. 94; People v. Foren, 25 Cal. 364; People v. Nichol, 34 Cal. 214; People v. Long, 39 Cal. 696; People v. Williams, 43 Cal. 349; Ex parte Wolff, 57 Cal. 94. 2* People v. Olsen, 80 Cal. 126; People v. Foren, 25 Cal. 364; People v. Doyell, 48 Cal. 94; People v. Craig, 111 Cal. 470. 28 People v. Valencia, 43 Cal. 556; People v. Woody, 45 Cal. 289; People v. Gibson, 17 Cal. 283; People v. Ah Lee, 60 Cal. 86; People v. Chew Sing Wing, 88 Cal. 271; People v. Foren. 25 Cal. 361; People v. Long, 39 Cal. 697; People v. Doyell, 48 Cal. 94; People v. Olsen, 80 Cal. 126; People v. King, 27 Cal. 514; People v. Belencia, 21 Cal. 544. MURDEU. 179 first degree, the unlawful killing must be accompanied with a clearly deliberate and premeditated intent to take life, either express or implied by law from the facts. The intent to kill must be formed upon pre-existing reflec- tion, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation. 29 TIME FOR DELIBERATION. No appreciable space of time, however, need intervene between the formation and the execution of the design to kill. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation, no matter how rapidly the acts of the mind may succeed each other, or how quickly they may be followed by the act of killing, to make the homicide murder in the first degree. 30 Deliberation and premeditation mean that the act was pre- conceived and clone after reflection. 31 If the design to kill existed while delivering the fatal blow, it is enough. 32 No time is too short for a wicked man to frame in his mind a scheme of murder and to contrive means of executing it. 3 * DEGREES DISTINGUISHED. It will be seen from the foregoing that it is the presence or absence of premeditation and deliberation that distin- guishes the degrees of murder. So that all murders done 29 People v. Moore, 8 Gal. 90; People v. Bealoba, 17 Cal. 395; People v. Sanchez, 24 Cal. 29; People v. Foren, 25 Cal. 365; People v. Nichol, 34 Cal. 214; People v. Long, 39 Cal. 696; People v. Williams, 43 Cal. 349; People v. Valencia, 43 Cal. 555; People v. Doyell, 48 Cal. 95; Ex parte Wolff, 57 Cal. 94; People v. Hunt, 59 Cal. 435; People v. Morine, 61 Cal. 369; People v. Grigsby, 62 Cal. 48; People v. Hurtado, 63 Cal. 288; People v. Raten, 63 Cal. 423; People v. Hamblin, 68 Cal. 104; People v. Knapp, 71 Cal. 1; People v. Williams, 73 Cal. 533; People v. Cox, 76 Cal. 285; People v. Bowman, 81 Cal. 566; People v. Bawden, 90 Cal. 196; People v. Gibson, 106 Cal. 458. so People v. Williams, 43 Cal. 344; People v. Pool, 27 Cal. 585; People v. Cotta, 49 Cal. 166; People v. Jarnarillo, 57 Cal. 114; People v. Nichol, 34 Cal. 211; People v. Hunt, 59 Cal. 435; People v. Long, 39 Cal. 696. si People v. Bealoba, 17 Cal. 397. 32 People v. Hamblin, 68 Cal. 104; People v. Doyell, 48 Cal. 97. 33 People v. Moore, 8 Cal. 93. 180 CRIMINAL LAW AND PROCEDURE. in the execution of a design to commit any other felony than murder, burglary, robbery, rape, arson, or mayhem, and all done without deliberate and premeditated malice are murders in the second degree. MANSLAUGHTER. DEFINITION. Manslaughter is the unlawful killing of a human being without malice, and includes every felonious homicide which is not murder. The distinction between murder and man- slaughter is only in regard to malice. Malice, either express or implied, is always present in murder, and always absent in manslaughter. 34 It is either voluntary or involuntary. 86 VOLUNTARY MANSLAUGHTER. Voluntary manslaughter is an unlawful killing upon sud- den quarrel or heat of passion. But to reduce a wilful homicide to manslaughter on this ground, the provocation must be sufficient to excite an irresistible passion in a rea- sonable person of ordinary self command. It is only out of regard for human frailty that the law will extenuate murder to manslaughter. 36 When the homicide is com- mitted in a mutual combat, in order to reduce the offense from murder to manslaughter, it must appear that no undue advantage was sought or taken by defendant, for if such was the case, malice may be inferred and the act of killing amount to murder. 37 But the use of a superior 'weapon by the slayer is not of itself sufficient evidence from which malice may be inferred. 38 In the absence of considerable provocation, malice is implied. If it be only slight, the law will consider the act of killing not the result of human People v. Lamb, 17 Cal. 323; People v. Freel, 48 Cal. 436; People v. Crowley, 56 Cal. 36; People v. Boling, 83 Cal. 380; People v. Kerraghan, 72 Cal. 609; People v. Bruggy, 93 Cal. 482; People v. Evans, 124 Cal. 209; People v. Munn, 65 Cal. 213; People v. Samsels, 66 Cal. 100. ss People v. Bruggy, 93 Cal. 478; People v. Pearne 118 Cal. 15fi. 3 People v. Butters, 8 Cal. 441; People v. Freeland, 6 Cal. 99; People v. Freel, 48 Cal. 436; People v. Bruggy, 93 Cal. 480; People v. Hurtado. 63 Cal. 288. 17 People v. Sanchez, 24 Cal. 17. " People v. Barry, 31 Cal. 35. MANSLAUGHTER. 181 infirmity, but rather of malice, and will declare the homi- cide murder. 11 " Words of reproach, however grievious, are not of themselves a sufficient provocation, as a reasonable man should exercise patience and forbearance under insult and abuse. ""' Trespass upon property unaccompanied with acts indicating an intent to commit some injury by force is not considered a sufficient provocation to reduce an inten- tional homicide to manslaughter.' 41 And if a sufficient time elapse between the provocation and the homicide to allow the blood to cool and reason to assert her sway, it will be murder, no matter what the provocation. 42 So, when the defendant is so far in possession of his mental faculties as to be capable of knowing that the act of killing was wrong, the belief that the deceased had seduced his wife will not reduce the crime to manslaughter. 43 Whatever the provoca- tion may be, if it was sought by the slayer, the killing will be murder. 44 INVOLUNTARY MANSLAUGHTER. Involuntary manslaughter is an unlawful killing which is done in the commission of an unlawful act, not amount- ing to a felony/ 15 or in the commission in an unlawful man- ner of a lawful act which might produce death ; 46 or in the commission of a lawful act without due caution and cir- cumspection. 47 As to what will amount to an unlawful act 39 People v. Doyell, 48 Cal. 96; People v. Bruggy, 93 Cal. 480. 40 People v. Murback, 64 Cal. 370; People v. Butler, 8 Cal. 441; People v. Turley, 50 Cal. 469; People v. Bruggy, 93 Cal. 480 . 41 People v. Dunne, 80 Cal. 34; People v. Clark, 84 Cal. 573; People v. Hecker, 109 Cal. 461. 42 People v. Sanchez, 24 Cal. 17. 43 People v. Hurtado, 63 Cal. 288. 44 People v. Lamb, 17 Cal. 323. 45 People v. Bruggy, 93 Cal. 478; People v. Pearne, 118 Cal. 156; People v. Honshell, 10 Cal. 83; People v. Munn, 65 Cal. 212; People v. Holmes, 118 Cal. 461; People v. Melendrez, 129 Cal. 552. 46 People v. Bruggy, 93 Cal. 478; People v. Pearne, 118 Cal. 156; People v. Munn 65 Gal. 212; Peop'e v. Holmes, 118 Cal. 461. 4T People v. Keefer. 18 Cal. 638; Peop'e v. Holmes, 118 Cal. 461; People v. Melendrez. 129 Cal. 551. 182 CRIMINAL LAW AND PROCEDURE. has not been directly decided in this state, but our court seems inclined to the opinion, supported by the great weight of authority, that only those acts which are malnw in se are within this term. An act which is merely malum pro- liibitnin is not. 48 When death ensues in pursuit of an unlawful design, without intention to kill, it will be mur- der or manslaughter, as the intended offense is felony or a misdemeanor. 40 A man may be guilty of manslaughter under some circumstances by mere carelessness. 80 EXCUSABLE HOMICIDE. Homicide by accident and misfortune is excusable when done in either of the following cases : LAWFUL, ACT. In lawfully correcting a child or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. 51 HEAT OF PASSION. When committed in the heat of pas- sion upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner. 52 But even in mutual combat when no dangerous weapon is used, the slayer is bound to desist when his victim is helpless, 53 and the com- bat must be sudden and not in pursuance of a deliberate plan or agreement to fight. 54 JUSTIFIABLE HOMICIDE. Homicide is justifiable when necessarily commitred in either of the following cases : 1. In the advancement of public justice; and 2. To prevent the commission of crimes. Under the first head may be grouped all those cases in which the homicide is necessarily committed : People v. Pearne, 118 Cal. 158. 4 People v. Honshell, 10 Cal. 83; People v. Munn, 65 Cal. 214. so People v. Keefer, 18 Cal. 637; People v. Melendrez, 129 Cal. 551. si Penal Code 195, sub. 1; People v. Bushton, 80 Cal. 162. 62 Penal Code 195, sub. 2; People v. Perdue, 49 Cal. 425; People v. Bushton, 80 Cal. 162. 5 People v. Perdue, 49 Cal. 425. 5< People v. Sanchez, 24 Cal. 17. JUSTIFIABLE HOMICIDE 183 1. By an officer or person acting under his command or in his aid. (a) In obedience to a judgment of a com- petent court; (&) in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; (c) in retaking escaped or rescued felons; ( d) in arresting persons charged with a felony fleeing from justice or resisting arrest. 2. By any person: (a) In a lawful attempt to apprehend a person for a felony committed; (6) in lawfully suppress- ing a riot; (c) in lawfully keeping or preserving the peace; 55 (d) in resisting any attempt to murder any person, or commit a felony or to do some great bodily injury upon any person; and (c} in defense of habitation, property or person. 50 LAWFUL ARREST. An officer in making an arrest has the right to use all the force which from the surrounding circumstances seems to him, as a reasonable man, necessary. He has a right to arm himself and go armed, and where the offense charged is a felony, and is apparently necessary to a reasonable man, it is his right to kill the person whom he is seeking to arrest, and it is his duty with or without a warrant to arrest one who has committed a felony. 57 It is the right and is expected of all good citizens that they aid in the capture or arrest of any person who has committed a felony, and they have the same protection and the same rights as an officer under the same circumstances. 58 Resisting arrest does not always constitute the use of physical force. A person may resist arrest by fleeing from an officer attempt- ing to arrest him. 59 WHAT IS REASONABLE CAUSE FOR ARREST. There must be such a state of facts as will lead a man of ordinary care and prudence to believe or entertain an honest t 55 Penal Code 196 and 197. n Penal Code 196 and 197. - 57 people v. Adams, 85 Cal. 231. r -s People v. Raten, 63 Cal. 424; People v. Brooks, 131 Cal. 311. 5<> People v. Brooks, 131 Cal. 315. 184 CRIMINAL LAW AND PROCEDURE. and strong suspicion that the person to be arrested is guilty. A police officer has the right without a warrant to arrest any person in the night time, whom the officer has a reasonable ground to believe has committed a felony. 00 And where a citizen, in pursuit of a felon, by mis- take, kills an innocent person, it is excusable if he had reasonable cause to believe, and did in fact believe, that the deceased was the person who had committed the felony. 61 DEFENSE OF PROPERTY OTHER THAN HABITATION. AGAINST FORCE AND VIOLENCE. The owner of property and in possession of the same, may use as much force as is necessary in its defense against one who manifestly intends or endeavors by violence or surprise to commit a felony thereon. In so doing he may repel force with force even to the extent of taking life. He must take care, however, that the degree of force used does not exceed what is, or appears to be, necessary to protect his possession. 62 AGAINST TRESPASS. It is only in the prevention of the commission of felonies that killing in such cases is justifi- able. A bare assault without force or violence against the officer will not justify homicide. 63 A homicide committed in endeavoring to restrain the commission of a mere mis- demeanor is not justifiable. 64 DEFENSE OF HABITATION. INVASION OF DWELLING. A man is not authorized to kill every invader of his house. In defense of habitation, the killing can be justified only when a person intends or endeavors to enter into the habitation in a violent, riotous or tumultuous manner for the purpose of offering violence to some person therein. If the person taking life has a reasonable opportunity so to do, he ought to endeavor to o People v. Kilvington, 104 Cal. 92. " People v. Melendrez, 129 Cal. 549. 2 People v. Payne, 8 Cal. 344; People v. Honshell, 10 Cal. 88; People v. Flannagan, 60 Cal. 4; People v. Lewis, 117 Cal. 193; People v. Stone, 82 Cal. 36; People v. Teixeria 123 Cal. 297; People v. Campbell, 30 Cal. 312 People v. Hecker, 109 Cal. 461; People v. Lewis, 117 Cal. 194; People v. Dunne, 80 Cal. 34. People v. Grimes, 132 Cal. 33. JUSTIFIABLE HOMICIDE. 185 remove the trespasser without having recourse to the last extremity. The bare fear that violence is intended is not enough. It must appear that the circumstances were suffi- cient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears alone. 65 RIGHT TO STAND GROUND. But where a man is assailed in his own habitation, he is not obliged to retreat or escape to avoid his assailant, even though a retreat may be safely made ; but may stand his ground or pursue his adversary until he finds himself out of danger; and if in a conflict be- tween them he happens to kill his assailant such killing is justifiable. 00 AGAINST UNLAWFUL ARREST. Every citizen has the right to resist any attempt to put illegal restraint upon his liberty, and he is justified in resist- ing such an arrest, and in an assault made in attempting to free himself from unlawful detention. 67 But a mere tres- pass upon the person will not justify a homicide. 68 And a person who has committed a. felony and flees from arrest is not justified in killing an officer attempting to take him. 69 AGAINST COMMON ASSAULTS. To justify a homicide for an assault it must appear that the danger threatened was immediate and sufficient to excite the fears of a reasonable person that the slayer was in danger of receiving great bodily harm, and he acted under the influence of such fears and not in a spirit of revenge ; and it must further appear that the degree of resistance was not disproportionate to the nature of the injury offered that the force used in repelling the assault was not greater than necessary. 70 '' People v. Walsh, 43 Cal. 449. People v. Lewis, 117 Cal. 193. T People v. Denby, 108 Cal. 54. ss People v. Angeles, 61 Cal. 188. ' People v. Pool, 27 Cal. 573. '" People v. Williams. 32 Cal. 280; People v. Campbell, 30 Cal. 312; People v. Hurley, 8 Cal. 390; People v. Don- guli, 92 Cal. 607. 1H6 CRIMINAL LAW AND PROCEDURE. THREATS. Threats, alone, however, deliberately made, afford no- justification for a homicide. In order to justify the killing under such circumstances, it must appear that, at the very time of the homicide, the deceased was doing some overt act, or making demonstrations, from which the accused reasonably might infer a present intent and immediate dan- ger of carrying such threats into execution, or doing him some great bodily harm. The right of self defense always depends on a necessity, real or apparent, of protecting life or property. When the necessity arises the right to kill occurs, but the right ceases when the necessity no longer exists. The sufficiency of the overt act to justify the belief that life is in danger depends, of, course, upon the facts of each particular case. 71 Xeither will abuse, nor unjust accu- sations, give a legal excuse or justification for taking human life. 72 COMMUNICATED THREATS. While threats unaccompanied by an overt act will not justify a homicide, yet they are always admissible in homi- cide cases. Generally, but not always to be of avail to the defendant they must be shown to have been communicated to him prior to the killing. 73 Communicated threats tend to show the state of mind of the accused person, the appre- hension under which he was acting, and to illustrate his conduct and motives in connection with other facts and cir- cumstances of the case. While uncommunicated threats do not furnish the same evidence of the motives brought to bear upon the mind of the accused, and are not admissible for the same purpose. But in all cases where the acts of the deceased in reference to the fatal meeting are of a doubtful character, any evidence which may tend to show People v, Arnold, 15 Cal. 479; People v. Lamb, 17 Gal. 317; People v. Pool, 27 Cal. 573; People v. Wright, 4& Cal. 260; People v. Westlake, 62 Cal. 303; People T. Tamkin, 62 Cal. 472; People v. Lynch, 101 Cal. 229; People v. Scroggins, 37 Cal. 634; People v. lams, 57 CaL 115; People v. Campbell, 59 Cal. 243. 7= People v. Grimes, 132 Cal. 30. People v. Arnold, 15 Cal. 476; People v. lams, 57 CaL 127. JUSTIFIABLE HOMICIDE. 187 that he sought the meeting or provoked the combat is admissible. And in this view threats though not communi- cated, may tend to show animus of the deceased, and illus- trate his conduct and motives, and in such cases show which was the aggressor. 74 MUTUAL COMBAT. While in a few cases in this state 75 it was held broadly that! the party first making a felonious attack upon another, without any lawful provocation, forfeits absolutely all right of self defense, no matter what turn the events of the affray may subsequently take, and to justify killing by pretense of necessity, the accused must be wholly without fault in bringing such a necessity. But such is not the law. It is true that a party may not by his own lawless acts create a necessity for self defense, and then by acting upon such necessity, slay his adversary and be justified by the law. But, however, when the assailant has really and in good faith endeavored to decline any further struggle before the homicide is committed, he may avail himself of the right of self defense. 76 MAKING KNOWN INTENTION TO DECLINE FURTHER STRUG- GLE. The accused must not only have in good faith endeavored to decline any further combat, but must have made known such intention to his adversary by his conduct. To illus- trate: If A assaults B> first, and upon that assault B re-as- 7* People v. Campbell, 59 Cal. 248; People v. lams, 57 Cal. 120. 75 People v. Lamb, 17 Cal. 323; People v. Travers, 56 Cal. 254; People v. Westlake, 62 Cal. 306; People v. Hunt, 59 Cal. 430; People v. Tamkin, 62 Cal. 470. 70 People v. Simons, 60 Cal. 72; People v. Bush, 65 Cal. 129; People v. Nichol, 34 Cal. 211; People v. Robert- son, 67 Cal. 646; People v. Gonzales, 71 Cal. 569; Peo- ple v. Wong Ah Teak, 63 Cal. 544; People v. Bruggy, 93 Cal. 483; People v. Button, 106 Cal. 628; People v. Hecker, 109 Cal. 451; People v. Conkling, 111 Cal. 625; People v. Lewis. 117 Cal. 186.; People v. Colvin, 118 Cal. 352; People v. Newcomer, 118 Cal. 263; People v. Scott, 123 Cal. 434; People v. Farley, 124 Cal. 594; People v. Harris, 125 Cal. 94; People v. Muller, 125 Cal. 44; People v. Flannelly, 128 Cal. 83; People v. Grancoli, 74 Cal. 645. 1S8 CRIMINAL LAW AND PROCEDURE. saults A, and that so fiercely that A cannot retreat to the wall or other non ultra without clanger of his life, nay, though A falls upon the ground upon the assault of B, and then kills B, this shall not be interpreted to be self defense. Though A was upon the ground and in great danger of his life at the time he killed B, still he was the assailant, and at the time of the killing had done nothing to indicate to the mind of B that he had in good faith withdrawn from the combat, and that B was no longer in danger. 77 APPARENT DANGER. The danger must be apparent and imminent and the kill- ing must be done under a well-founded belief that it was absolutely necessary to save his own life or to prevent great bodily injury. 78 The belief may be well founded although there is no actual danger, and it need not have been absolutely necessary. It is enough if it so appeared to the defendant and under circumstances sufficient to excite the fears of a reasonable man. 80 SUFFICIENCY OF THE DANGER. It must be sufficient not only to excite the fears of a " People v. Button, 106 Cal. 632; People v. Hecker, 109 Cal. 45; People v. Scott, 123 Cal. 430; People v. Worth- ington, 122 Cal. 586; People v. Conkling, 111 Cal. 627. 78 People v. Hurley, 8 Cal. 390; People v. Westlake, 62 Cal. 303; People v. Powell, 87 Cal. 364; People v. Don- guli, 92 Cal. 607; People v. Lemperle, 94 Cal. 48; Peo- ple v. Lynch, 101 Cal. 229; People v. Hecker, 109 Cal. 460; People v. Conkling, 111 Cal. 627; People v. How- ard, 112 Cal. 135. T People v. Donguli, 92 Cal. 607. o People v. O'Brien, 78 Cal. 41; People v. Guidice, 73 Cal. 228; People v. Dye, 75 Cal. 113; People v. Anderson, 44 Cal. 65; People v. Gonzales, 71 Cal. 577; People v. Dollor, 89 Cal. 515; People v. lams, 57 Cal. 115; People v. Adams, 85 Cal. 231; People v. Westlake, 62 Cal. 303; People v. Campbell, 30 Cal. 312; People . Hyndman. 99 Cal. 1; People v. Gray, 61 Cal. 180; People v. Flahave, 58 Cal. 249; People v. Morine 61 Cal. 369; People v. Bruggy, 93 Cal. 483; People v. De Witt, 68 Cal. 587; People v. Ye Park, 62 Cal. 204- Peo- ple v. Lewis, 117 Cal. 191; People v. Powell, 87 Cal People v. Raten, 63 Cal. 425; People v. Turcott 126; People v. Nichol, 34 Cal. 211; People v. . Newcomer, 118 Cal. 272; People v. Hecker, 109 Cal 463- P-ople v. Herbert, 61 C?.l 544 JUSTIFIABLE HOMICIDE. 189 reasonable; man, but the act must have been done under the influence of such fears alone. 81 But the person threatened is authorized to act on appearances ; as where the attack- is sudden and the danger imminent, he may increase his peril by retreat ; so situated, he may stand his ground and slay his aggressor, even if it be proved that he might more easily have gained his safety by flight. 82 DUTY TO RETREAT. The law does not impose the duty of retreat upon one who, without fault himself, is exposed to a sudden and felonious attack. The duty of withdrawal or retreat is imposed upon him alone who is the first aggressor, or who has joined in a mutual combat. While at common law there was a contrariety of opinion upon the part of the writers as to the duty of retreat which contrariety has found its way into the differing decisions of our state courts, this state has upheld a defendant's right to stand his ground and meet by force a sudden and violent attack. So that while the killing must be done under an absolute neces- sity, actual or apparent, as a matter of law that necessity is deemed to exist when an innocent person is placed in such sudden jeopardy; 83 and a person so situated may be justified in pursuing and slaying his adversary ; but the pursuit must not be in revenge, nor after the necessity of the defense has ceased, but must be prosecuted in good faith to the sole end of winning; his safety and securing his life. 84 PRESENT ABILITY. There must have been a present ability on the part of the si People v. Ye Park, 62: Gal. 205; People v. Williams, 32 Cal. 280; People v. Emerson, 130 Cal. 562; People v. Bushton, 80 Cal. 162; People v. Adams, 85 Cal. 231. 82 People v. IWiles, 55 Cal. 207; People v. Mitchell, 129 Cal. 584; People v. Herbert, 61 Cal. 544; People v. Gonzales, 71 Cal. 569; People v. Ye Park, 62 Cal. 240; People v. Robertson, 67 Cal. 646; People v. Scott, 69 Cal. 69. ss People v. Hecker, 109 Cal. 463; People v. Lewis, 117 Cal. 186; People v. Newcomer, 118 Cal. 272; People v. Ye Park, 62 Cal. 204. 8- People v. Hecker, 109 Cal. 463. 190 CRIMINAL LAW AND PROCEDURE. assailant to accomplish his criminal design in order to justify the person assailed in taking his life. 8 " The ques- tion of present ability is fully treated under the title of assaults. RIGHT OF SELF DEFENSE FOUNDED ON NECESSITY. The right of self defense is one of necessity, and ceases when the necessity no longer exists. Therefore it does not admit of further acts on the part of the assailed party after his adversary has been rendered harmless. 80 SEEKING A QUARREL. Self defense is not available as a plea to a defendant who has sought a quarrel with a design to force a deadly issue and thus, through his fraud, contrivance or fault, create a real or apparent necessity for the killing. 87 KILLING IN A DUEL. Neither can it be availed of as a defense by one who by an arranged duel, or by consent, has entered into a deadly mutual combat in which he slays his adversary ; for a man may not wickedly or wilfully invite or create the appear- ances of necessity or the actual necessity which, if present to one without blame, would justify the. homicide. 88 BURDEN OF PROOF. As has already been shown herein when a homicide is proven, the defendant must establish circumstances of mitigation or justification or excuse; but it is sufficient if the proof on the part of the prosecution creates a rea- sonable doubt as to these matters. 89 And it need not be shown by a preponderance of evidence. The killing only ss People v. Lee Kong, 95 Cal. 666. se People v. Yokum, 118 Cal. 437. ST People v. Roberston, 67 Cal. 646; People v. Hecker, 109 Cal. 462. as People v. Hecker. 109 Cal. 462. s People v. Newcomer, 118 Cal. 263; People v. Powell, 87 Cal. 350; People v. Arnold, 15 Cal. 476; People v. Rodngo, 69 Cal. 605; People v. Elliott, 80 Cal. 296; People v. Ah Kong, 49 Cal. 6; People v. Lemperle, 94 Cal. 45; People v. Marshall, 112 Cal. 423; People v. Bushton, 80 Cal. 165; People v. Lanagan, 81 Cal. 143; People v. Turcott. 65 Cal. 129. JUSTIFIABLE HOMICIDE. 191 raises a presumption that it was felonious, and the defend- ant is only bound to produce such evidence as will create a reasonable doubt of his guilt. It makes no difference whether this reasonable doubt is the result of evidence on the part of the defendant tending to show circumstances of mitigation, or that would justify or excuse the killing, or from other evidence coming from him or the prosecution. 90 oo People v. Powell, 87 Cal. 350; People v. Marshall, 112 Cal. 423; People v. Boiing, 83 Cal. 381; People v. Levine, 85 Cal. 41; People v. Lane, 101 Cal. 518; Peo- ple v. Neary, 104 Cal. 374; People v. Ah Gee Yung, 86 Cal. 146; People v. Hawes, 98 Cal. 653; People v. Anderson, 105 Cal. 34; People v. Tarm Poi, 86 Cal. 226; People v. Lanagan, 81 Cal. 143; People v. West, 49 Cal. 610; People v. Elliott, 80 Cal. 296; Peo- ple Flanagan, 60 Cal. 2; People v. Langton, 67 Cal. 427; People v. Bushton, 80 Cal. 160; Peo- ple v. McNulty, 93 Cal. 427; People v. Kibolsi, 89 Cal. 493; People v. Carroll, 92 Cal. 572; Penal Code 1105. The cases, People v. Raten, 63 Cal. 422 and People v. Hong Ah Duck, 61 Cal. 388, which held the contrary, were overruled in People v. Bushton, 80 Cal. 164, where the court said "the well settled rule that a defendant shall not be convicted unless the evidence proves his guilt beyond a reasonable doubt, applies to the whole and every material part of the case, no mat- ter whether it is as to the act of killing, or the reason for or manner of its commission." This same ques- tion was raised in People v. Langton, 67 Cal. 428, where the jury had been instructed that upon the proof of the killing the law presumed the defendant intended to kill, unless the defendant could show his intention was other than his acts indicated; while ad- hering to the doctrine afterwards enunciated in the Bushton case, the court held that the words " unless the defendant can show" meant unless he can or does show from the whole evidence in the case and that any other construction would be strained. 192 CRIMINAL LAW AND PROCEDURE. EVIDENCE. MOTIVE. A motive is not essential to the proof of murder and con- viction may be had without it. But in cases of circumstan- tial evidence, the presence or absence of motive is a matter of corroboration, makes other evidence more or less persua- sive, and diminishes or increases the presumption of inno- cence. 1 A morbid thirst for blood is a sufficient motive. 2 Every act of a rational human being is induced by a motive, but when a crime is fully established and its perpetration fastened upon the defendant, the motive is unimportant. While evidence of the motive may sometimes be of assist- ance in removing doubt, and completing proof otherwise unsatisfactory, it is never indispensable to a conviction. The motives of human conduct are so many, and sometimes so complex and obscure, that the particular motive is often incapable of proof; 3 but evidence of motive is as material for the prosecution where the plea is self defense as where the killing is denied. 4 There are many circumstances which may be introduced to establish it. To illustrate, proof of a rivalry between deceased and defendant as suitors of the same woman : 5 or of the illicit relation existing between defendant and wife of deceased ; but to be admissible it must have come to the knowledge of the defendant. 7 Likewise to prove motive the people may show the existence of a family feud, 8 or of a jealous rage of defendant against his mistress who had tricked and deceived him, 9 or of any other facts tending to show the primary cause of the killing. 10 1 People v. Vereneseneckockockhoff, 129 Cal. 497; People v. Durrant, 116 Cal. 223; People v. Suesser, 1^2 Cal. 631; People v. Owens, 132 Cal. 469. 2 People v. McCarthy, 115 Cal. 255. People v. McCarthy, 115 Cal. 263; People v. Durrant, 116 Cal. 208; People v. Vereneseneckockockhoff, 129 Ciil. 497. People v. Brown, 130 Cal. 591. s People v. Cuff, 122 Cal. 589. People v. Brown, 130 Cal. 591. i People v. Hill, 116 Cal. 562. s People v. Walters, 98 Cal. 138. o People v. Larabee, 115 Cal. 159. in People v. Gibson, 106 Cal. 458. EVIDENCE. 19& MAPS AND PHOTOGRAPHS. It is a general rule without contradiction that where a photograph is shown to be a faithful representation of what it purports to reproduce, it is admissible as an appropriate aid to the jury in applying the evidence. This is equally true whether the photograph be of persons, things or places. And a photograph of the 1 deceased, when shown to be a fair representation, is admissible, although taken two years before her final disappearance. 11 So also maps and photo- graphs of the scene of the homicide are admissible to show the facts surrounding the killing. 12 But like other dia- grams, their value depends upon other evidence explaining them, and tnust be determined by the jury. 13 EXPERT OPINION. An expert may express his judgment as to the means and cause of death. 14 The character of the wound is not a class of knowledge which in its nature is so peculiarly confined to men educated in the science of medicine or surgery as to preclude its acquisition by others. A witness who is not an expert may describe the wound upon the body of the 'deceased, 15 and when it is conceded that the stains on the clothing are blood, may testify that they were fresh. 1 * Where there is a material inquiry as to the distance of the deceased from the defendant at the time of the homi- cide, in determining whether the deceased was near enough to strike the defendant, and whether the shooting was done in self defense, evidence of experiments by competent wit- nesses as to the farthest distance at which clothing would be powder marked with a rifle such as was used by defend- ant, is admissible. 17 But the witness must be shown to be an expert ; a physician as such is not an expert in such 11 People v. Durrant, T16 Cal. 213. 12 People v. Phelan, 123 Cal. 551. is People v. Crandall, 125 Cal. 133. i* People v. Durrant, 116 Cal. 210. is People v. Hong Ah Duck, 61 Cal. 388; People v. G-ib- son. 106 Cal. 476. is People v. Loui Tung, 90 Cal. 377. IT People v. Clark, 84 Cal. 573; People v. Hawes, 98 Cal. 648. CRIMES--13 194 CRIMINAL LAW AND PROCEDURE. matters. 18 An expert witness who has examined the wound which caused the death may give his opinion as to the size of the bullet which caused the wound. 19 The posi- tion of the body when the shot was fired, or the relative position of the parties at the time, is not a matter of expert opinion, but a question of fact for the jury to decide from the course of the bullet and the position of the wound. 20 The course of the bullet does not indicate the position of the party inflicting the wound. 21 The place of entrance and exit of the bullet may be shown. 22 A witness may state the nature of the impression of the sound left upon the ear in determining whether shots were fired in open air or within a building, and whether from a rifle or a shot- gun. 23 But the opinion of a witness as to whether or not a third person would have seen an object in a particular situa- tion is not proper. The witness may testify to the condi- tions and situations and leave the question of fact to be determined by the jury. 24 Neither can a witness testify to his understanding of the meaning of words used by another, nor the inference drawn by him from a combination of cir- cumstances tending to throw light on a question of feeling between two persons. 25 PRIOR DIFFICULTY. For the purpose of showing malice and ill will on the part of the defendant, it may be proved that the parties to the homicide had had a difficulty on a previous occasion. These matters may be shown in a general way, but it is not proper to enter into an examination of them in detail for the is People v. Lemperle, 94 Cal. 45; People v. Hawes, 98 Cal. 651; People v. Hill, 116 Cal. 568; People v. Smith 93 Cal. 445. is People v. Wong Chuey, 117 Cal. 629. 20 People v. Hill, 116 Cal. 568; People v. Smith, 93 Cal. 447; People v. Milner. 122 Cal. 171; People, v. Yokum, 118 Cal. 441; People v. Parley, 124 Cal. 595. 21 People v. Milner, 122 Cal. 171. 22 People v. Phelan, 123 Cal. 566. -> People v. Chin Hane, 108 Cal. 602; People v. Clarke 130 Cal. 646. -' People v. Worden, 113 Cal. 576. -- People v. French, 69 Cal. 173. EVIDENCE. 195 purpose of determining which party was in the wrong. 29 And evidence of the previous relation of defendant with a third person, with whom he had had an altercation, though not tending to prove malice, is admissible to enable the jury to understand the immediate quarrel in which the homicide occurred. 27 But in such cases the court should be careful that a connection is established between the two acts. 28 The defendant, however, who has sought a quarrel in which he killed his adversary, cannot introduce evidence of a pre- vious difficulty to show provocation for his act. 29 RES GESTAE. The condition of the body and clothing of the deceased when found, is admissible. The production of the bloody clothing worn at the time by the victim of the homicide, and even of the exhumed body, is a matter of common practice, and the jury may be permitted to view them. 30 The cloth- ing is frequently important evidence tending to prove the violence of the blow and the course or direction of the bullet or knife. 31 The mental condition of defendant and the motives which prompted the act are a part of the res gestae and admissible. 32 The flight of the defendant, when pointed out as the guilty person, is also admissible. 83 And it is competent to prove the circumstances prior and subsequent to the homicide, tending to establish guilt, and even the con?.mls?ion of another crime when it tends to establish the offense charged. 34 The appearance of the defendant shortly after the homicide may also be shown. 35 26 People v. Barthleman, 120 Cal. 14; People v. Colvin, 118 Cal. 351; People v. Thomson, 92 Cal. 512; People v. Chaves, 122 Cal. 143; People v. Kern, 61 Cal. 244; People v. Brown, 76 Cal. 573. 27 People v. M'Kay, 122 Cal. 628. 28 People v. Stonecifer, 6 Cal. 405. 2 People v. Smith, 26 Cal. 666. so People v. Majors, 65 Cal. 149; People v. Hong Ah Duck, 61 Cal. 391; People v. Knapp, 71 Cal. 3. si People v. O'Brien, 78 Cal. 43. 32 People v. Costello, 15 Cal. 350. ss People v. Lock Wing, 61 Cal. 381; People v. Bushton, 80 Cal. 60. 34 People v. Ebanks, 117 Cal. 663; People v. Pool, 27 Cal. 573. SB People v. Arrighini, 122 Cal. 121. 196 CRIMINAL LAW AND PROCEDURE. . Declarations to be a part of the res gestae need not be pre- cisely concurrent in point of time with the principal fact if they spring out of it or tend to explain it, and are volun- tary and spontaneous, and are made at a time so near it as to preclude the idea of deliberate design, then they are to be regarded as contemporaneous and are admissible. 86 But statements made by defendant before the homicide are not included, 87 nor are statements of deceased several days before the homicide, when having no appreciable bearing on the case, 88 but declarations made at the time of the assault are, 39 as also conversations of the parties to the assault immediately afterwards. 40 Acts of defendant subsequent to the homicide cannot be shown except so far as they tend to establish the theory that he acted in self defense. 41 And the declarations of defendant in his own interest and not a part of the res gestae, if made after the homicide, are not admissible. 42 But the acts and declarations of defendant are always admissible against him to show his state of mind. 43 But under the guise of res gestae narrative of past events cannot be introduced in evidence. The declarations to be admissible as such must be necessary incidents of the act they are intended to explain, 44 and must be well calcu- lated to unfold the nature and quality of the facts they are intended to explain, and so to harmonize with them as obviously to constitute one transaction. 45 The declarations 3 People v. Vernon, 35 Cal. 51; People v. Ah Lee, 60 Gal. 88. 3* People v. Wyman, 15 Cal. 70; People v. Henderson, 28 Cal. 470. I 38 People v. Murphy, 45 Cal. 37. 39 People v. Roach, 17 Cal. 298; People v. Brown, 59 Cal. 345. 40 People v. Swenson, 49 Cal. 388. 41 People v. English, 30 Cal. 217. The court said it was difficult to see how subsequent acts could have any bearing on self-defense, but if erroneous was favorable to defendant. 42 People v. Dice, 120 Cal. 189. 43 People v. M'Kay, 122 Cal. 628. 44 People v. Wong Ark, 96 Cal. 127; People v. Ehring, 65 Cal. 135; People v. Ah Lee, 60 Cal. 85; People v. Lane, 100 Cal. 384. 45 People v. Wyman, 15 Cal. 75. EVIDENCE. 197 of the deceased one-half hour after the shooting are not a part of the res gestac* 6 CIRCUMSTANTIAL EVIDENCE. This subject is treated fully at another place. It is suffi- cient here to say that circumstantial evidence alone will sustain a conviction of murder, 47 and a judgment based thereon is conclusive on appeal. 48 It is perhaps the surest method of determining purpose and motive. 49 CHARACTER OF DECEASED AS A DANGEROUS MAN. As a general rule the slayer may derive no advantage from the character of the deceased for violence, provided the killing took place under circumstances that show he did not believe himself in danger. 50 Yet in cases of doubt as to premeditation and malice, or as to whether the accused acted from a principle of self preservation, it is proper to admit testimony calculated to illustrate the motive of the accused. A reasonable fear would repel a conclusion of malice, and there may be greater reason to fear an adver- sary who may be violent, rash and bloody minded, than a quiet and peaceful citizen. 51 And for this purpose it is competent to show that before the fatal affray the defend- ant was informed that the deceased was a dangerous man and he believed him to be armed. 52 But the prosecution may show on rebuttal that he was in fact, unarmed, 53 and the fact that a position taken by deceased was not a move- ment towards drawing a weapon, but a marked peculiarity 46 People v. Westlake, 62 Cal. 303. 47 People v. Clarke, 130 Cal. 642; People v. Dodge, 30 Cal. 448. 48 People v. Ah Jake, 91 Cal. 98; People v. Durrant, 116 Cal. 201. 49 Peop:e v. Marshall, 59 Cal. 386; Ex parte Estrado, 88 Cal. 316. so People v. Murray, 10 Cal. 310. si People v. Powell, 87 Cal. 350; People v. Lombard, 17 Cal. 320; People v. Stewart, 28 Cal. 396; People v. Griner, 124 Cal. 19; People v. Murray, 10 Cal. 310; Peo- ple v. Edwards, 41 Cal. 641. 52 People v. Powell, 87 Cal. 350. 53 People v. Sehorn, 116 Cal. 509. 198 CRIMINAL LAW AND PROCEDURE. of deceased. 84 But good character of the deceased cannot be shown until it is attacked. 65 THREATS BY DECEASED. Threats by deceased against the defendant are admissi- ble to determine whether in connection with the other facts, they were sufficient to excite reasonable fear in the mind of defendant. 1 "'" also to determine who was the aggressor. t " la But they must have been communicated to defendant. 57 Uncommunicated threats, however, may be shown to deter- mine who, in fact, commenced the affray when the circum- stances are equivocal of that fact. 58 But threats, even when communicated, are not admissible where the homicide is perpetrated by means of poison, or by lying in wait, or while in the perpetration of arson, robbery, burglary, etc., which are conclusive on their face of premeditation and deliberation. 68 STATEMENTS AND DECLARATIONS OF DECEASED. Declarations of the deceased to be admissible, must con- stitute a part of the res gestae or be made in extremis, or made against interest. 60 Thus declarations of the deceased out of the presence of the'accused are not admissible; 61 such as a declaration of fear of being murdered by defendant, 83 or that he did not mean to assault the defendant. 63 But 5* People v. Grimes, 132 Cal. 34. 55 People v. Powell, 87 Cal. 350. 56 People v. Tamkin, 62 Cal. 468; People v. Thomson, 92 Cal. 511; People v, Travis, 56 Cal. 251. a People v. Travis, 56 Cal. 251; People v. Thomson, 92 Cal. 511; People v. Tamkin, 62 Cal. 468; People v. Alivtre, 55 Cal. 263; People v. Carlton, 57 Cal. 85. 67 People v. Farley, 124 Cal. 594; People v. Arnold, 15 Cal. 476; People v. lams, 57 Cal. 115; People v. Hender- son, 28 Cal. 466; People v. Alivtre, 55 Cal. 264. 58 People v. Scoggins, 37 Cal. 676; People v. Alivtre, 55 Cal. 265; People v. Carlton, 57 Cal. 85; People v. Thom- son, 92 Cal. 511. 5 People v. Taing, 53 Cal. 602. o People v. Carkhuff, 24 Cal. 641; People v. Carlton, 57 Cal. 84; People v. Taylor, 59 Cal. 648; People v Irwin, 77 Cal. 500; People v. Gress, 107 Cal. 463 i Peop'e v. Daily, 59 Cal. 600. "2 People v. Irwta, 77 Cal. 494. 6:1 Peop'e v. Carlton. 57 Cal. 83. EVIDENCE. 199 where made eo instanti the firing of the fatal shot, although out of presence of defendant, are admissible. 64 The decla- rations of the deceased at the time of procuring the weapon are a part of the res gestae, and will be admitted to illustrate the transaction. 05 They are never proper, however, to show malice, deliberation or motive. 66 THREATS BY DEFENDANT. Threats made by the defendant against the deceased are admissible to show malice, and thereby increasing the probability that he committed the offense. The competency of such evidence is not affected by lapse of time, although it may be impaired thereby. 67 It is immaterial that the wit- ness cannot relate all of the conversation in which the threat occurred, if he gives the substance thereof. 68 Neither is the indefiniteness of the threats any reason for excluding the testimony. 69 The defendant will not be allowed to explain his threats. 70 Threats against others than the deceased are not admissible except when the circumstances show some connection with the injury inflicted on the deceased. 71 It is, however, competent to prove a broad threat by defendant against the whole family of deceased, 73 but a threat against a brother is not admissible. 73 A threat against] a witness may also be shown, 74 but to be admissible it must have been communicated. 75 And threats made pre- vious to a reconciliation may be shown, but their effect as evidence depends on whether the reconciliation on the part of the defendant was in good faith or not. 76 6* People v. Wong Ah Foo, 69 Cal. 180. es People v. Arnold, 15 Cal. 476. 66 People v. Shuttuck, 109 Cal. 673. 67 People v. Cronin, 34 Cal. 191; People v. Hong Ah Duck, 61 Cal. 390; People v. Chaves, 122 Cal. 143; People v. Scoggins, 37 Cal. 676; People v. Carlton, 57 Cal. 85. es People v. Dice, 120 Cal. 189. 69 People v. Craig, 111 Cal. 466. "o People v. Lyrch, 101 Cal. 229. 71 People v. Be?y. 67 Cal. 223. 72 People v. Gross, 123 Cal. 389; People v. Craig, 111 Cal. 460. 73 People v. Bezy, 67 Cal. 223. 74 People v. Chin Hane, 108 Cal. 597. 75 People v. Powell. 87 Cal. 348. 76 People v. Hyndman, 99 Cal. 1. 200 CRIMINAL LAW AND PROCEDURE. DYING DECLARATIONS. There are several reasons for the admissibility of hear- say testimony, in the shape of dying declarations, but the most substantial ground upon which it can be placed is that of necessity. While the condition of the person making the declaration under the sense of impending dissolution may compensate for the want of an oath, it can never make up for want of cross-examination. 77 But, notwithstanding this, such declarations are universally held to be admissi- ble. 78 ^Ehis species of testimony should always be received with greatest caution, and too much care cannot be observed by the court in scrutinizing the primary facts upon which its admissibility is grounded. No person is entirely exempt from a disposition to excuse and justify his own conduct, or to inflict vengeance upon one at whose hands he has suffered a grievous wrong; and in the eye of the law, this proclivity is presumed to be overcome and silenced only by the presence of almost immediate death. 79 WHEN ADMISSIBLE. It is therefore essential to their admissibility that they be made under a sense of impending death ; and such proof must be made as a preliminary to their introduction, but objec- tion to want of such preliminary proof is waived if not specifically urged. 80 The statements of the deceased " People v. Taylor, 59 Cal. 640; People v. Glenn, 10 Cal. 37; People v. Lawrence, 21 Cal. 372. TS People v. Ah Len, 98 Cal. 133; People v. Lee, 17 Cal. 76; People v. Vernon, 35 Cal. 49; People v. Ybarra, 17 Cal. 166; People v. Yokum, 118 Cal. 437; People v. Sierp, 116 Cal, 249; People v. Farmer, 77 Cal. 1. " People v. Sanchez. 24 Cal. 24; People v. Hodgdon, 55 Cal. 76; People v. Taylor, 59 Cal. 646. so People v. Owens, 123 Cal. 482; People v. Gray, 61 Cal. 164; People v. Lee Sare Bo, 72 Cal. 625; People v. Fuh- rig, 127 Cal. 412; People v. Bemmerly, 87 Cal. 117; People v. Ah Len, 98 Cal. 133; People v. Carkhuff, 24 Cal. 640; People v. Lee, 17 Cal. 76; People v. Vernon, 35 Cal. 49; People v. Ah Dat, 49 Cal. 652; People v. Taylor, 59 Cal. 649; People v. Sanchez, 24 Cal. 17; People v. Hodgdon, 55 Cal. 76; Peop'.e v. Hawes, 98 Cal. 648; People v. Ramirez, 73 Cal. 404; People v. Ybarra, 17 Cal. 166; People v. Yokum, 118 Cal. 440; People v. Farmer, 77 Cal. 1; People v. Slerp, 116 Cal. 249. EVIDENCE. 201 must show that he was impressed with a sense of impend- ing death, and that he really believed that the finger of death was upon him. It is only under the solemnity of such an occasion that his declarations are rendered compe- tent. All hope of recovery must have left him. 81 If the deceased had the slightest hope of recovery at the time of making the declaration it is not admissible for any purpose. He must have believed himself in such extremity that every hope of the world was gone. 8 - But the declaration need not state in terms that it is so made, if there is sufficient proof aliunde the written declaration of that fact. 83 It is enough if it satisfactorily appear, in any mode, that they were made under that sanction ; whether it be directly proved by express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated to him, or from his con- duct, or other circumstances of the case, all of which are resorted to, in order to ascertain the state of the declarant's mind. 84 The belief may also be shown by final preparations for death, by taking leave of friends and by seeking the consolations of religion and the last offices of the church. 86 Each witness need not definitely fix the belief of the -person that death was imminent. The sense of death may be shown by one and the declaration by another. 86 A sense of death is not shown when the statement is written by a stenographer without any request from the deceased. 87 The declarations need not be in writing, 88 and even when written si People v. Hawes, 98 Cal. 648; People v. Samario, 84 Gal. 485; People v. Ramirez, 73 Cal. 403; People v. Lee Sare Bo, 72 Cal. 625; People v. Taylor, 59 Cal. 640; People v. Gray, 61 Cal. 175. 82 People v. Ah Dat, 49 Cal. 652; People v. Fuhrig, 127 Cal. 412; People v. Bemmerly, 87 Cal. 117; People v. Hodgdon, 55 Cal. 72; People v. Sanchez, 24 Cal. 17; People v. Taylor, 59 Cal. 645. ss People v. Fong, Ah Sing, 70 Cal. 8; People v. Bemmerly, 87 Cal. 117. M People v. Taylor, 59 Cal. 640; People v. Gray, 61 Cal. 164; People v. Lee Sare Bo, 72 Cal. 625. sr. People v. Sanchez, 24 Cal. 25. se People v. Garcia, 63 Cal. 19. ST People v. Fuhrig, 127 Cal. 412. ss People v. Yckum, 118 Cal. 440. 202 CRIMINAL LAW ANb PROCEDURE. declarations are admitted, it is permissible to admit oral declarations of the same import made at a different time. 8 * They are not rendered incompetent by the fact of a lack of religious belief on the part of the deceased. 90 Nor can the statement be rejected because the deceased refused to answer further, saying that he was a dying man. 91 Oral declara- tions are admissible even though considerable time elapsed between making them and the death, and although a written statement is also in evidence. 9 - The re-affirmance of a state- ment previously made, at the time when all hope is gone, is admissible. And if the deceased had a clear recollection of it, it need not be read again. 93 The statement is not rendered incompetent by reason of the fact that it is contra- dicted by evidence of statements subsequently made by deceased. 114 As TO WHAT ADMissnn.i-:. The declarations must relate to and form a part of the res gestac ; in other words, such declarations must be upon such matters only as the deceased might have testified to had he been alive at the time of the trial, 95 or have reference to the cir- cumstances of the death or be made against interest. 96 No expressions of opinion by the deceased, 97 nor statements relating to former distinct transactions, are admissible. 98 The entire context of a declaration must be given. 99 Dec- larations of the deceased after the shooting are not admissi- ble. 100 Where a statement was taken down by a reporter in sn People v. Glenn, 10 Cal. 33. People v. Sanford, 43 Cal. 29; People v. Chin Mook Sow, 51 Cal. 599. si People v. Chin Mook Sow, 51 Cal. 600. 2 People v. Vernon, 35 Cal. 49. 03 People v. Crews, 102 Cal. 174. 94 People v. Lawrence, 21 Cal. 368. so People v. Taylor, 59 Cal. 640; People v. Fong Ah Sing, 70 Cal. 9; People v. Wasson, 65 Cal. 539; People v. Lan- agan, 81 Cal. 144; People v. Hall, 94 Cal. 599; People v. Wong Chuey, 117 Cal. 629. People v. Carkhuff, 24 Cal. 640. 7 People v. Wasson, 65 Cal. 538. s People v. Fong Ah Sing, 64 Cal. 256. 99 People v. Fong Ah Sing, 70 Cal. 8. i"" People v. Westlake, 62 Cal. 203. EVIDENCE. 203 shorthand by question and answer, written out at length, read and assented to by the deceased, who signed and swore to it, it is admissible. 101 It is admissible for the defendant even though the deceased might have been mistaken as to the facts ; its weight is a question for the jury. 102 And where not admissible, the error is cured when the defendant afterwards proves the same facts by his own witnesses. 103 OTHER EVIDENCE. Non-killing by another may be shown when the evidence conclusively proves that either the defendant or some other person must have done the murder. The latter may testify that he did not do it. 104 And it is open to the accused to prove that the crime was committed by some one else, for the purpose of relieving himself from, its responsibility, and such proof is admissible even though the person to whom the crime is thus charged has been acquitted thereof. 105 It is proper for the prosecution to show that the articles found in the defendant's possession belonged to the deceased for the purpose of connecting him with the murder. 106 But it is not competent to put in evidence letters or communica- tions, found on the person of the deceased after his death 101 " unless they be shown to have come from the defendant. 108 A pistol found on a co-conspirator may be shown to be the one purchased by the defendant for the purpose of con- necting him with the crime, 100 but a club unidentified is not admissible. 110 But weapons not in evidence may be exhib- ited to the jury when no objection is made thereto. 111 A dressmaker's form, may be draped with the clothing of de- 101 People v. Brady, 72 Cal. 490. 102 People v. Southern, 120 Cal. 645. 103 People v. Montgomery, 53 Cal. 576; Peop'e v. Ketchum, 73 Cal. 638. lo* People v. Clarke, 130 Cal. 646; People v. Van Horn, 119 Cal. 328. 105 People v. Mitchell, 100 Cal. 328. 106 People v. Smith, 106 Cal. 74. 107 People v. Van Horn, 119 Cal. 323. 108 People v. Worthington, 115 Cal. 242. if o People v. Winters, 125 Cal. 325. no People v. Hill, 123 Cal. 571. in People v. Ccx, 76 Cal. 281. 204 CKIMINAL LAW AND PROCEDURE. ceased already in evidence to represent the figure of deceased. 112 The warrant of arrest may be intro- duced for the purpose of showing that the deceased was one of a posse comitatus to assist in arresting the defendant for another crime, 113 and the purchase and pos- session of poison may be shown for the purpose of proving malice and the intention of the defendant towards the deceased person to whom it was administered. 114 The defendant will not be permitted for the purpose of moving the jury to compassion to show the ages of his children. 115 INTOXICATION. As has been shown, drunkenness, while no excuse for crime, may sometimes be admitted in evidence. It is proper evidence to show absence of motive, 1 or of a specific intent, where such an intent is an element of the crime, 2 or a want of premeditation in determining the degree of the crime. 8 But as between murder in the second degree and man- slaughter, it can form no legitimate matter of inquiry, 4 and it is immaterial when the charge is involuntary man- slaughter without due caution and circumspection. 5 In all cases it should be received with great caution. 6 "2 People v. Durrant, 116 Cal. 179. us People v. Brown, 59 Cal. 345. IK People v. Cuff, 122 Cal. 589. lie People v. Dice, 120 Cal. 189. 1 People v. Kloss, 115 Cal. 576. 2 People v. Blake, 65 Cal. 275; People v. Fellows, 122 Cal. 239; People v. Harris, 29 Cal. 679; People v. Gordan, 103 Cal. 568; People v. Marseiler, 70 Cal. 98. 3 People v. King, 27 Cal. 515; People v. Langton, 67 Cal. 429; People v. Vincent, 95 Cal. 428; People v. Williams, 43 Cal. 352; People v. Miller, 114 Cal. 10; People v. Franklin, 70 Cal. 641; People v. Nichol, 34 Cal. 211; People v. Morrow, 60 Cal. 147; People v. Blake, 65 Cal. 277; People v. Belencia, 21 Cal. 544; People v. Harris, 29 Cal. 683; People v. Fellows, 122 Cal. 239; People v. Gordan, 103 Cal. 576; People v. Jones, 63 Cal. 168; People v. Soto, 63 Cal. 165; People v. Ferris, 55 Cal. 588. * People v. Langton, 67 Cal. 427; People v. Lane, 100 Cal. 379; People v. Nichol, 34 Cal. 211. 6 People v. Pearne, 118 Cal. 151. e People v. Lewis, 36 Cal. 531; People v. Vincent 95 Cal. 425; People v. Fellows, 122 Cal. 239. EVIDENCE. 205 CORPUS DELICTI. It is very seldom that a conviction occurs without posi- tive proof of the corpus delicti, either by eye-witnesses of the homicide, or the subsequent discovery of the body ; and while the general rule is clearly laid down, yet there are exceptions as when the body is disposed of by fire, or boiled in potash, or dissolved in acids, rendering it impossible that it should ever be produced. It is clear that in such cases the corpus delicti may be proved by circumstances or infer- entially. 7 There must be proof of some kind of the death. 7 "- VENUE. It is a general rule that venue must be proved in all cases as laid, but persons who commit, in whole or in part, any crime in this state, are punishable here, 8 exactly in the same way, in the same courts, and under the same proced- ure, as if the crime was committed entirely within this state. Consequently, a person who sends poisoned candy by mail in this state, with intent to take the life of a person residing in another state, who dies there, from the effects of the poison so sent, is guilty of murder committed in part in the state, and is punishable under the laws of the state. 9 PENALTY. Murder in the first degree is punishable by death, or con- finement in the state prison for life, at the discretion of the jury trying the cause. 10 The verdict must specify the degree of which the defendant is convicted. 11 And if the jury find a verdict of murder in the first degree, they have the absolute discretion of determining whether the punish- ment shall be death or only inprisonment for life. If the verdict is silent as to penalty the court must inflict the capi- * People v. Alviso, 55 Cal. 230. a People v. Callego, 133 Cal. 295. s Penal Code 27. o People v. Botkin, 132 Cal. 231. 10 Penal Code 190. 11 People v. O'Neil, 78 Cal. 388; People v. Travers, 73 Cal. 580; People v. Jefferson, 52 Cal. 452; People v. Lee Yune Chong, 94 Cal. 386; People v. Campbell, 40 Cal. 129; People v. Marquis, 15 Cal. 38. 206 CRIMINAL LAW AND PROCEDURE. tal punishment. 12 Upon a plea of guilty the court shall de- termine the punishment. 13 Murder in the second degree us punishable by imprisonment in the state prison not less than ten years. 14 The court has power to impose life imprison- ment on a conviction of murder of the second degree. 16 Manslaughter is punishable by imprisonment in the state prison not exceeding ten years. 1&a INDICTMENT. The code has abolished all the refinements and techni- calities of criminal pleading at common law, and has pro- vided plain and simple rules by which to determine the suffi- ciency thereof. In an indictment for murder, besides the formal commencement and ending prescribed by the code, and the allegation of venue, the other issuable facts to be alleged are (i) the name of the defendant, (2) a killing with malice aforethought, (3) the name of the deceased and (4) the time of the commission of the act. These are the essential facts, the other facts such as the means employed, the nature and extent of the wound, etc., are sim- ply evidence of these ultimate facts. 16 As has been seen, the distinction between murder and manslaughter is the presence or absence of malice. An indictment charging murder also includes manslaughter. 17 It is, of course, nec- essary to allege the death of the person named in the indict- ment, 18 but it is a sufficient allegation of this fact to state that the defendant " did kill and murder " without stating the infliction of a mortal wound from which the deceased 12 People v. Leary, 105 Cal. 486; People v. Kamaunu, 110 Cal. 609; People v. Bawden, 90 Cal. 198; People v. Olsen, 80 Cal. 128; People v. French, 69 Cal. 179; People v. Brick, 68 Cal. 190; People v. Murback, 64 Cal. 369; People v. Jones, 63 Cal. 168; People v. Welch, 49 Cal. 174. is In re Brown, 32 Cal. 49; Penal Code 190. i+ People v. Brooks, 131 Cal. 311; Penal Code 190. 15 People v. Brooks, 131 Cal. 311. isa Penal Code 193. i8 People v. King, 27 Cal. 510; People v. Cronin, 34 Cal. 191; People v. Murphy, 39 Cal. 52; People v. Davis 73 Cal. 357. IT People v. Dolan, 9 Cal. 584; People v. Pearne, 118 Cal. 157. is People v. Crenshaw, 46 Cal. 66. EVIDENCE. 207 died. 19 The name of the deceased must be alleged, but he may be described by the name by which he was commonly known. 20 An error .in the middle name is immaterial, 21 for the name is used only for the purpose of identification.* 1 It is not necessary as at common law to allege that the deceased person was a human being for the name, which is always necessary to be alleged in the indictment, imports that fact. 23 The time of the death may be set out in order that the court may be informed whether the death occurred within a year and a day from the commission of the act. 24 This requirement is merely a rule of evidence. Unless the party dies within that time there can be no conviction. 25 It will be a sufficient allegation of time, however, if it can be determined from the facts alleged that death really occurred within the year and a day, even though it be not directly alleged. 20 The place of the homicide must be averred to fix the venue. 27 There need be no allegation of the manner or means of killing. . The ultimate fact is the unlawful killing of a human being with malice aforethought, and the means by which it is accomplished is only evidence of that fact. No particular mode or means are necessary to constitute the offense. 28 The manner in which the weapon was loaded is is People v. Sanford, 43 Cal. 29. 20 People v. Freeland, 6 Cal. 96; People v. McNulty, 93 Cal. 445. 21 People v. Lockwood, 6 Cal. 206. 22 People v. Dick, 37 Cal. 280; People v. Leong Sing, 77 Cal. 117. -' People v. McNulty. 93 Cal. 445; People v. Freeland, 6 Cal. 98. 21 People v. Aro, 6 Cal. 210; People v. Wallace, 9 Cal. 31; People v. Steventon, 9 Cal. 274; People v. Dolan, 9 Cal. 576. 25 People v. Murphy, 39 Cal. 55. 26 People v. Nichol, 34 Cal. 211; People v. Sanford, 43 Cal. 31; People v. Cronin. 34 Cal. 191. 2? People v. Wallace, 9 Cal. 31. . 28 People v r Steventon, 9 Cal. 274; People v. Ybarra, 17 Cal. 170; People v. Cronin, 34 Cal. 191; People v. Mur- phy, 39 Cal. 55; People v. Weaver, 47 Cal. 107; People v. King, 27 Cal. 511; People v. Hong Ah Duck, 61 Cal. 387; People v. Davis, 73 Cal. 357; People v. Hyndman, 99 Cal. 3. "Under the pretense of informing the defendant of the nature of the charge against which he was called 208 CRIMINAL LAW AND PROCEDURE. likewise immaterial ; 29 also the nature and extent of the wound. 30 The indictment need not charge the degree of murder. It is not the province of the grand jury hut the trial jury to determine the question of the degree of which the defendant is guilty. 31 But there is no impropriety in so doing. 32 Malice aforethought is a necessary ingredient of murder and consequently must be alleged in some manner, 33 but it need not be alleged in those words, it is sufficient if equivalent words are employed. 34 Thus the allegation that the murder was deliberate and premeditated is equi- valent to an allegation of malice aforethought. 35 And it need not be alleged that it was deliberate, if it is alleged that it was done with malice aforethought. 36 The indict- ment is always sufficient if it be in the language of the statute, and the acts charged be clearly and distinctly set forth in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. 37 Words conveying the same meaning as upon to defend, it was necessary, at the ancient common law, to describe the means by which tne homicide was committed, and the nature and extent of the wound and its precise locality; from which it necessarily followed that a trifling variance between the proof and the alle- gation frequently defeated a conviction, no matter how manifest the guilt of the defendant." People v. King, 27 Cal. 511. 29 People v. Choiser, 10 Cal. 311. so People v. King, 27 Cal. 507. People v. King, 27 Cal. 507; People v. Soto, 63 Cal. 165; People v. Lloyd, 9 Cal. 55; People v. Nichol, 34 Cal. 211; People v. Hyndman, 99 Cal. 3. 32 People v. Dolan, 9 Cal. 376. as People v. Schmidt, 63 Cal. 28; People v. Bonilla, 38 Cal. 699; People v. King. 27 Cal. 507. a* People v. Vance, 21 Cal. 400; People v. Ah Woo, 28 Cal. 208; People v. Bonilla, 38 Cal. 699; People v. Stanton 39 Cal. 698. SB People v. Vance, 21 Cal. 400. se People v. Dolan, 9 Cal 576; People v. Murray, 10 Cal. 310; People v. Hyndman, 99 Cal. 3; People v. Garcia, 25 Cal. 533; People v. Shaber, 32 Cal. 38; People v Pool 27 Cal. 572. 7 Penal Code 959; People v. Dolan, 9 Cal. 576; People v. Alviso, 55 Cal. 230; People v. Hong Ah Duck, 61 Cal. 390; People v. Davis, 73 Cal. 357; People v. Martin, 47 Cal. 101; People v. Cronin, 34 Cal. 191; People v. Coleman, 10 Cal. 334; People v. Wall?r-\ 9 Cal. 31; People v Soto, EVIDENCE. 209 statute may be used. 38 An indictment will be held suffi- cient if it can be readily understood therefrom that, under such circumstances that show a felonious intent, a mortal wound was inflicted by the defendant upon a human being, of which wound he died within a year and a day from its infliction. 30 FORM MURDER. Feloniously, wilfully, and of his malice aforethought, did kill and murder C D. 40 HOUSEBREAKING, see BURGLARY. HOUSE OF ILL-FAME, see SEDUCTION. IMPERSONATION, see FALSE IMPERSONATION. 63 Cal. 165; People v. Tomlinson, 66 Cal. 345; People v. Hyndman, 99 Cal. 3; People v. Ybarra, 17 Cal. 166; People v. Ah Woo, 28 Cal. 211; People v. Murray, 10 Cal. 310; People v. Shaber, 32 Cal. 38; People v. Parsons, 6 Cal. 487; People v. Garcia, 25 Cal. 533; People v. White, 34 Cal. 183; People v. Phipps, 39 Cal. 326. ss People v. Potter, 35 Cal. 114. so People v. Nichol, 34 Cal. 211. People v. Cronin, 34 Cal. 210; People v. Murphy, 39 Cal. 52. CRIMES--14. CHAPTER XXXI. INCEST. (Penal Code, sec. 285.) DEFINED. Incest is the intermarrying of, or the commission of fornication or adultery by persons within the prohibited degree of consanguinity. The consent of the female is not necessary to complete the offense. There need be no mutual- ity in the crime. The man may be guilty although no guilt on the part of the woman is shown. 1 Either party may be indicted and convicted alone. 2 And the fact that the woman was under age of consent and the defendant might also have been indicted for rape is immaterial. Both crimes may be committed by the same act. 3 ATTEMPT TO COMMIT. The intent of the father to commit incest with his daughter and his concurrent overt acts in the use of means adopted to the immediate perpetration and consummation of the offense, are sufficient to show attempt without actual penetration. 4 But an attempt to contract an incestuous marriage involves more than a mere preparation for such marriage. 5 EVIDENCE. The testimony of the female alone is sufficient to sus- tain a conviction where slightly corroborated, notwithstand- 1 People v. Gleason, 99 Cal. 359. 2 People v. Patterson, 102 Cal. 239. 3 People v. Kaiser, 119 Cal. 456. * People v. Gleason, 99 Cal. 359. People v. Murray, 14 Cal. 159. INCEST. 211 ing the defendant positively denies all the charges made against him. 6 To prove the illicit relations previous acts of sexual intercourse may be shown. 7 PENALTY. Imprisonment in state prison not- exceeding ten years. FORM INCEST. Wilfully, unlawfully, knowingly, incestuously and felon- iously, upon the person of C D, the daughter [or other person within prohibited degree], of said A B, did commit fornication, and have sexual intercourse with and carnally know the said C D. 8 INFANT, see KIDNAPPING AND ABDUCTION. INNKEEPER, see DEFRAUDING INNKEEPER. INSURED PROPERTY, BURNING OF, see ARSON. JUSTIFIABLE HOMICIDE, see HOMICIDE. People v. Kaiser, 119 Cal. 456. 7 People v. Patterson, 102 Cal. 239. s People v. Kaiser, 119 Ca!. 456; People v. Patterson, 102 Cal. 239. CHAPTER XXXII. Kir>NAFFING. (Penal Code, sec. 207.) DEFINED. Is the forcible stealing, taking, or arresting any person in this state, and carrying him into another country, state or county, or the hiring, persuading, enticing, decoying or seducing by false pretenses, misrepresentations, or the like, any person to go out of the state, or to be taken or removed therefrom, with intent to sell such person into slavery, or involuntary servitude, or otherwise employ him for his own use, or to the use of another, without the free will and consent of the persuaded person. 1 The arrest by an officer upon a warrant regularly issued is not kidnap- ping. 2 But where an officer, although acting under a war- rant in all respects regular, instead of taking the person arrested before a magistrate, takes her into a house of ill fame, he is guilty of the offense of kidnapping. 3 It is nec- essary that the abduction be accompanied with a removal from the county or state, or with intent to remove beyond the limits of the state. 4 But the taking out of the state is not accomplished by taking to an island which is a part of the state. 5 CHILD STEALING.. But a person who maliciously, forcibly or fraudulently takes or entices a child under the age of twelve years, with intent to detain and conceal such child from the parents or 1 Penal Code 207. 2 Ex parte Sternes, 82 Cal. 245. a People v. Fick, 89 Cal. 144. * People v. Chu Quong, 15 Cal. 332. s Ex parte Keil, 85 Cal. 309. KIDNAPPING. 213 guardian, or other person having lawful charge of such child, is guilty of child stealing. Under this section it is unnecessary that the abduction should be accompanied with a removal or a design to remove, as the intent to detain and conceal from parents or guardian is the gist of the offense. 7 PENALTY. Kidnapping, imprisonment in the state prison from one to ten years. 8 If to commit extortion or robbery, imprison- ment in state prison from ten years to life. 8a Child steal- ing, imprisonment in state prison not exceeding twenty years. 9 INDICTMENT. The acts constituting the offense are sufficiently alleged if 'the indictment follows the language of the statute. The allegation as to the purpose of the kidnapping is surplusage and need not be proved. 10 Under an indictment for child stealing, it is immaterial that it also charges facts which show an attempt to take and entice away a child. 11 FORM KIDNAPPING. Unlawfully, forcibly and feloniously and without any lawful warrant or authority whatever, and without first having established a claim to seize or take him according to the laws of the United States, or the laws of the state of California, did seize, steal, take and kidnap one C D, with the design and intent then and there to take the said C D out of this state, without the consent and against the will of said C D. ANOTHER FORM. Wilfully, unlawfully, feloniously and forcibly did take one C D, then and there being in the said county of s Penal Code 278. 7 People v. Chu Quong, 15 Cal. 332. s Penal Code 208. 8a Penal Code 209. Penal Code 278. 10 People v. Fick, 89 Cal. 144. 11 People v. Milne, 60 Cal. 71. 214 CRIMINAL LAW AMD PROCEDURE. and carry said C D into another county in said state, to wit, the county of , in said state, without the consent and against the will of the said C D. 12 FORM CHILD STEALING. Unlawfully, maliciously, feloniously and forcibly did take away one C D, then and there being a child under the age of twelve years, to wit, years, with intent then and there and thereby to detain and conceal said child from J D, the father of said child [or from other person having the lawful charge of such child]. 12 People v. FIck, 89 Cal. 144; People v. Ah Own, 39 CaL 604. CHAPTER XXXIII. LARCENY. (Penal Code, sees. 484-502}.) DEFINED. Larceny is the felonious stealing, taking, carrying, leading or driving away the personal property of another. PROPERTY SUBJECT OF LARCENY. As indicated by the definition only personal property is the subject of larceny and consequently it has been held that in order to be susceptible of larceny the property must be severed from the realty and be capable of asportation. Thus in an indictment for stealing a quantity of gold-bearing quartz it was held that since it did not appear that the quartz rock had been severed from the realty there could be no larceny in stealing things adhering to the soil. The court, however, suggested the need of remedial legislation. 1 But since those decisions the legislature has, by statute, made it larceny to steal ore though not severed from the earth prior to the taking. 2 And the converting of any manner of real estate into personal property, by severing the same from the realty of another, with felonious intent to steal and stealing the same is larceny. 3 OWNERSHIP. Possession of property is sufficient ownership as against a thief. 4 And an agister has a sufficient ownership, for the 1 People v. Williams, 35 Cal. 671; People v. Meyer, 75 Cal. 385. 2 Statutes 1871-72, page 435; People v. Opie, 123 Cal. 294. s Statutes 1871-72, page 282. * People v. Oldham, 111 Cal. 648; People v. Davis, 97 Cal. 194; People v. Nelson, 56 Cal. 77; People v. Tomlinson, 102 Cal. 24. 216 CRIMINAL LAW AND PROCEDURE. purposes of larceny, of the property in his possession, even though he has an interest in the increase of the stock which might make him a joint owner with another. 5 A party cannot be convicted of larceny of his own property. Yet, if it be taken from a bailee, or other person in lawful possession with intent to charge such person therewith, it is larceny. 7 ASPORTATION. Larceny implies a change of possession from the owner to the thief, therefore, it is necessary to show asportation, which an attempt to carry away does not show. 8 To con- stitute larceny there must be a feloniously and fraudulent taking of property with intent to deprive the owner of its use. 8 The act of taking must co-exist with the felonious intent to deprive the owner of his property. 10 But the asportation, the ownership of the property and the intent with which it is carried away are questions of fact for the jury. 11 Where a coat was removed from a dummy in front of a store but still remained attached by a chain, there was no taking. 12 And the killing of a domestic animal without removing the carcass is not larceny. 13 But the taking or enticing the animal away, with intent to appropriate it, is larceny. 14 . TIME OF TAKING. Time is not an essence of the offense of larceny ; it need not be shown that the crime was committed on the precise day alleged, if before the riling of the information and within a reasonable time of the day named. 15 o People v. Buelna, 81 Cal. 135. 6 People v. MacKinley, 9 Cal. 250. 7 People v. Stone, 16 Cal. 369; People v. Thompson, 34 Cal. 671; Jones v. Jones, 71 Cal. 89. 8 People v. Meyer, 75 Cal. 383; People v. Murphy, 47 Cal. 103. People v. Juarez, 28 Cal. 380; People v. Brown, 105 Cal. 66. 10 People v. Salorse, 62 Cal. 139; People v. Morino, 85 Cal. 515. 11 People v. Carabin, 14 Cal. 439. " People v. Meyer, 75 Cal. 383. is People v. Murphy, 47 Cal. 103. i* People v. Smith, 15 Cal. 408. i People v. French, 95 Cal. 371; Penal Code 995. LARCENY. 217 INTENT. Obtaining money with fraudulent intent to convert and converting it, is larceny. 16 The felonious intent is an element of the crime and must be shown. 17 It is a question of fact for the jury. 18 Taking property from a friend for safe keeping ; 10 or without felonious intent ; 20 or with the consent of the party, does not amount to larceny. 21 But mere passive submission, however, does not show consent. 22 Consent to the taking is a matter of defense and must be shown by the accused. 23 A claim to the property made in good faith although not legal will overcome the intent to steal. 24 But a fraudulent procurement of property with the felonious intent to convert it is larceny. 25 So that money obtained by means of a bunco game shows a felonious intent and is larceny.-" This intent must exist at the time of the taking. 27 But where the taking was wrongful the intent to steal may be formed afterwards. 28 Where there was a felonious intent in getting possession of the property, and afterwards an appropriation it is larceny. 20 An unlawful appropriation by the finder of the property is larceny. 30 The felonious intent in all cases must be wholly and permanently to deprive the owner of his property, so that a taking temporarily or for purposes of revenge is not larceny. 31 And it must iG People v. Raschke, 73 Cal. 385; People v. Smallman, 55 Cal. 185; People v. Shaughnessy, 110 Cal. 602. ' People v. Devine, 95 Cal. 227. is People v. Swalm, 80 Cal. 46. 10 People v. Stewart, 80 Cal. 129. - People v. Hansen, 84 Cal. 294. -i People v. Hanselman, 76 Cal. 460. 22 People v. Hanselman, 76 Cal. 460. -" People v. Davis, 97 Cal. 194. 24 People v. Eastman, 77 Cal. 171. 25 People v. Raschke, 83 Cal. 501. 26 People v. Shaughnessy, 110 Cal. 602. -~ People v. Morino, 85 Cal. 515; People v. Jersey, 18 Cal. 337; People v. Salorse, 62 Cal. 139. M People v. Pico, 62 Cal. 50. 20 People v. Montarial, 120 Cal. 691. People v. Buelna, 81 Cal. 135; People v. Devlue. 95 Cal. 231. *i People v. Brown, 105 Cal. 66. 218 CRIMINAL LAW AND PROCEDURE appear that the defendant and no other committed the offense. 32 Motive for the crime is always apparent. 83 LARCENY BY BAILEE. Where a bailee secures possession of property with intent to steal it, and does steal it, he is guilty of larceny. 34 . Like- wise where a broker takes a bank check with intent to steal it ; 35 or where a warehouse foreman sells property without authority; and the person who buys the same knowingly is guilty of receiving stolen property. 36 LARCENY DISTINGUISHED FROM EMBEZZLEMENT. Where the bailee of property obtains possession of it from the owner with the intention of stealing it, and carries out that intent, he is guilty of larceny ; but where the intent to steal did not exist at the time of taking possession of the prop- erty by the bailee, but was conceived afterwards, it is embezzlement. 37 Where the property was openly taken from a sleeping and intoxicated friend with the avowed intent of caring for it, if subsequent conduct showed an intent to convert instead of caring for it, it is larceny. 38 LARCENY AND FALSE PRETENSES DISTINGUISHED. It is essential to the crime of larceny that the title to the stolen property should not have been parted with. If the title has been obtained by fraud or deceit, the crime is that of obtaining property under false pretenses, and not lar- ceny ; but if the transfer be of possession merely, or of some special property by way of pledge or bailment, which has been secured by fraud, with present felonious intent to 32 People v. Carrillo, 70 Cal. 643; People v. Kaiser, 119 Cal. 459. 33 People v. Kelly, 132 Cal. 430. 34 People v. Smith, 23 Cal. 280; People v. Raschke, 73 Cal. 383. so People v. Abbott, 53 Cal. 284. 3 People v. Perini, 94 Cal. 573. 87 People v. Smith, 23 Cal. 280; People v. Johnson, 71 Cal. 390; People v. Abbott, 53 Cal. 284; People v. Salorse, 62 Cal. 139; People v. Morino, 85 Cal. 517; People v. De Graaf, 127 Cal. 676; People v. Montarial, 12 Cal. 691; People v. Raschke, 73 Cal. 383. " People v. Hansen, 84 Cal. 291. LARCENY. 219 convert the property so acquired, the offense is larceny. 39 Obtaining money by fraud when the title remains in the owner is larceny. 40 In larceny the owner does not intend to part with title and possession, while in false pretenses he does. 41 And where the facts show larceny and also false personation, the defendant may be prosecuted for larceny, although he might also be informed against for false pre- tenses. 42 . GRAND LARCENY. It is in the power of the legislature to declare the larceny of specific property to be grand larceny without reference to its value, and it has so declared. 43 It is grand larceny where the property taken is a horse, mare, gelding, cow, steer, bull, calf, mule, jack, jenny or a bicycle. 44 But such animal must be alive. The stealing of a carcass of an animal is not grand larceny irrespective of its value. 40 The word horse includes mare ; 40 also, gelding. 47 And cow includes heifer/ 8 In all other cases to constitute grand larceny, the property stolen must exceed fifty ' dollars ; 49 or have been taken from the person of another. 50 But in order to constitute a taking from the person, the property must be attached to the person, or carried or held in actual phy- sical possession. The taking from the pocket of a garment under the head of a sleeper is not a taking from his person. 51 The value of the goods is a question for the jury. 32 And 39 People v. Campbell, 127 Cal. 278; People v. Raschke, 73 Cal. 378; People v. Johnson, 91 Cal. 265; People v. Tomlinson, 102 Cal. 19; People v. Shaughnessy, 110 Cai. 602; People v. Montarial, 120 Cal. 695; People v. Belden, 37 Cal. 51; People v. De Coursey, 61 Cal. 136. 40 People v. Rae, 66 Cal. 426. 41 People v. Martin, 102 Cal. 558. 42 People v. Campbell, 127 Cal. 278; People v. Frigerio, 107 Cal. 152. 43 People v. Townsley, 39 Cal. 405; People v. Cheuy Ying Git, 100 Cal. 439. 44 Penal Code 487; People v. Barnes, 65 Cal. 16. 45 People v. Smith, 112 Cal. 333. 46 People v. Pico, 62 Cal. 50. 47 People v. Monteith, 73 Cal. 7. 48 People v. Soto, 49 Cal. 67. 49 People v. Marshall, 59 Cal. 391. so Penal Code 487. 51 People v. McElroy, 116 Cal. 583; People v. Appleton, 120 Cal. 252. 52 People v. Staples, 91 Cal. 23. 220 CRIMINAL LAW AND PROCEDURE. where the evidence shows that it might be either grand or petit larceny the court must instruct the jury on both. 53 There are no degrees in larceny and a verdict of guilty where the indictment charges grand larceny is sufficient to convict of that crime. 54 EVIDENCE. Though evidence of wealth or poverty of the accused is not permissible, evidence is admissible to show that previous to the date of the crime the defendant was without money, and that immediately after that date he had a large sum. 58 Experts may testify to cattle brands, 50 and it may be shown that the defendant had destroyed the marks and brands on the carcass. 57 Ear marks of a hog are some evidence of ownership although not recorded. 58 Strict proof of the identity of coin is not required. 59 The identity of the stolen property is a question for the jury. 60 Ownership by a cor- poration may be shown by proof of a corporation de facto. 61 Where the evidence tends to show that a purse, dropped by a co-defendant, was passed to him by the defendant, it is admissible as a part of the res gcstae. 02 And evidence of adulterous intercourse between the defendant and the wife of the owner of the property is admissible to show that the defendant knew the property given him by her was given against the will of the husband. 63 RECENT POSSESSION OF STOLEN PROPERTY. Recent possession of stolen property alone is not sufficient to convict, 04 but where other inculpatory circumstances are shown in the absence of explanation it is sufficient to us People v. Comyns, 114 Cal. 107. '* People v. Price, 67 Cal. 350; People v. Manners, 70 Cal. 428; People v. Perez, 87 Cal. 123. -5 People v. jKelly, 132 Cal. 430. 'c People v. Fitzpatrick, 80 Cal. 538. 7 People v. Murphy, 47 Cal. 103. ss People v.Bolanger, 71 Cal. 17. 59 People v. Linn, 23 Cal. 150. oo People v. Jim Ti, 32 Cal. 60. i People v. Barric, 49 Cal. 342. "2 People v. Piggott, 126 Cal. 509. 3 People v. Swalm. 80 Cal. 46. People v. Vilarde, 59 Cal. 463; People v. Swinford 57 Cal. 86. LARCENY. 221 authorize the submission of the case to the jury. ' 5 It does not constitute a legal conclusion of guilt. 00 Neither is it, unexplained, prima facie evidence of guilt, 67 but is merely a guilty circumstance to be taken into consideration with other facts/' 8 unless satisfactorily explained, 69 and from which the defendant's complicity in the larceny may be inferred. 70 And the jury may presume from the fact, if they find the defendant stole the property that all the property stolen at the same time and place was stolen by the defendant, unhss some facts are shown to the contrary. 71 Its value as evidence is greatly enhanced if the stolen property be rare coin, 72 but whether it be strong evidence or only slight is a question for the jury. 73 But it must be shown that the possession was personal and exclusive and involved a distinct and conscious assertion of possession ; 74 and was with the consent and will of the defendant. 75 . The defendant may show by other evidence that his possession was innocent, 76 or that he purchased it from another. 77 Possession of other stolen property may be shown to overthrow evidence of rightful possession. 78 The identity of the money stolen is 5 People v. Vidal, 121 Cal. 221. 6c People v. Levison, 16 Cal. 99; People v. Chambers, 18 Cal. 384; People v. Kraker, 72 Cal. 461; People v. Noreaga, 48 Cal 123; People v. Cline, 74 Cal. 577; People v. Antonio, 27 Cal. 407; People v. Hurley, 60 Cal. 77; People v. Kelly, 28 Cal. 427; People v. Clough, 59 Cal. 438. 67 People v. Gassaway; 23 Cal. 51. s People v. Rodundo, 44 Cal. 538; People v. Etting, 99 Cal. 578; People v. Abbott, 101 Cal. 647; People v. Gill, 45 Cal. 285; People v. Mitchell, 55 Cal. 236; People v. Clough, 59 Cal. 438; People v. Velarde, 59 Cal. 463; People v. Fagan, 66 Cal. 534; People v. Hannon, 85 Cal. 374. o People v. Luchetti, 119 Cal. 501. 7*1 People v. Kelly, 28 Cal. 427; People v. Antonio, 27 Cal. 404. i People v. Fagan, 66 Cal. 534. -2 People v, Getty, 49 Cal. 581. People v. Titherington 59 Cal. 598; People v. Cline, 74 Cal. 577. 74 People v. Hurley, 60 Cal. 74. - People v. Warren, 130 Cal. 683. 7R People v. Buelna, 81 Cal. 136. 77 People v. Cline, 74 Cal. 576. 7 People v. Lopez, 59 Cal. 362; People v. Cunningham, 66 Cal. 669. 222 CRIMINAL LAW AND PROCEDURE. not required, but it is sufficient to show that the money found on the defendant was the same amount, the same coin and denomination and the defendant was in a position to have taken it. 70 The finding of the property at the place indicated in the confession of the defendant, renders the confession admissible, whether it was given under duress or not. 80 An innocent possession may be rebutted by evidence that the defendant asked of a third person, before the larceny was committed, if he did not want to buy property of the nature of that stolen. 81 VARIANCE. A variance as to the ownership is immaterial where the property is otherwise described, 82 or where the description identifies the owner. 83 And under a charge of larceny for obtaining money by fraud, evidence that the money paid to the defendant by the prosecuting witness came from the separate estate of his wife, and was given by her to the prosecuting witness to provide security required by the defendant, does not show a variance from the allegation that the property belonged to the husband. 84 And an allegation of ownership in Samuel and proof in Sam is not a material variance. 85 But a charge of larceny of five stock certificates of the same number is not supported by proof of larceny of one of that number. 80 A material variance between the proof and the information arises only when the acquittal of the defendant under the information will be no bar to a further prosecution for the same offense; but where the discrepancy does not affect the validity of the information, or prejudice or affect the substantial rights of the defendant in his defense, the variance is immaterial. 87 People v. Wong Chong Suey, 110 Cal. 117. so People v. Murphy, 47 Cal. 103. si People v. Luchetti, 119 Cal. 501. 32 People v. Watson, 72 Cal. 402; People v. Anderson. RO Cal. 207; People v. Rlbolsl, 89 Cal. 492. sa People v. Smith, 112 Cal. 333; People v. Armstrong, 114 Cal. 573; People v. Leong Quong, 60 Cal. 107. s* People v. Tomlinson, 102 Cal. 19. ss People v. Armstrong, 114 Cal. 570; see also People v. Arras, 89 Cal. 223. se People v. Coon, 45 Cal. 672; People v. Strassman, 112 Cal. 683. 8f People v. Arras, 89 Cal. 223. LARCENY. 223 RECEIVING STOLEN GOODS. The crime of larceny is distinct from that of receiving stolen goods and proof of the latter crime is insufficient to convict one accused of the former. 1 Nor is a receiver of stolen goods an accessory after the fact of the larceny. 2 A verdict of larceny cannot be had upon proof of receiving stolen goods. 3 And it is not larceny if the defendant had no knowledge of its commission prior to the receiving of the goods. 4 LARCENY NOT INCLUDED IN BURGLARY. Larceny is not an element of burglary and not included in it, 5 even when committed at the same time, 6 and a trial for burglary and a conviction of larceny will not be upheld ; both these crimes cannot be charged in the same indict- ment, 7 as they are two separate and distinct offenses. 8 VENUE. The venue may be laid in the county into which the stolen property was taken. 9 The jurisdiction is in either county. 10 But the bringing of the goods into the county does not confer jurisdiction 'where the larceny was committed in a foreign country. 11 The venue is in any county into which the stolen goods are taken. 12 INDICTMENT DESCRIPTION OF PROPERTY. The indictment need not give the description of the prop- erty in detail, 13 but it must correctly describe the property 1 People v. Ward, 105 Cal. 653. 2 People v. Stakem, 40 Cal. 599; People v. Maxwell, 24 Cal. 14. 3 People v. Eagan, 98 Cal. 230; People v. Ward, 105 Cal. 652. 4 People v. Maxwell, 24 Cal. 14; People v. George Tilley California Decisions Dec. 12, 1901. 5 People v. Curtis, 76 Cal. 57. o People v. Garnett, 29 Cal. 622. 7 People v. Garnett, 29 Cal. 622. s People v. Curtis, 76, Cal. 58. o People v. Mellon, 40 Cal. 648; People v. Scott, 74 Cal. 96; People v. Staples, 91 Cal. 27. 10 People v. Robles, 29 Cal. 421. 11 People v. Black, 122 Cal. 73. 12 People v. Garcia, 25 Cal. 531. is People v. Stanford, 64 Cal. 27. 224 CRIMINAL LAW AND PROCEDURE. stolen for the purpose of identification, 14 and unnecessary matters alleged in the indictment may be in the alternative as, for instance, the color of the animal stolen. 15 In an indictment for larceny of coin it is not necessary to allege the value of each coin stolen. 18 The value of the money is not necessary to be alleged where it is set forth as lawful money of the United States. 17 If; the indictment be for the larceny of money, bank-notes, certificates of stock, or val- uable securities, it need not specify the coin, number, denom- ination or kind thereof. 18 And where the property is not money it is sufficient to allege its value without alleging it to be in lawful money of the United States. 19 The prop- erty is sufficiently described where it is alleged as four calves, the property of L. 20 The value of each article need not be separately stated. 21 The description may be in a general way." 2 It may be described as belonging to the estate of a deceased person without specifying his heirs or legal representatives. 23 An indictment for "larcey" will not support a conviction for larceny, as "larcey" is a crime unknown to our law. 24 THE ASPORTATION may be alleged in the disjunctive. 25 It is sufficient to charge the stealing of an animal as having been taken and carried away without charging a leading or driving away. 26 INTENT. The felonious taking is an essential part of the crime. 27 It is not necessary to allege that the taking was with intent to steal when it is alleged that the defend- People v. Winkler, 9 Cal. 234. is People v. Smith, 15 Cal. 409. i People v. Green, 15 Cal. 512; People v. Poggi, 19 Cal. 600. IT People v. Mlllan, 106 Cal. 320. is Penal Code 967. 10 People v. Righetti, 06 Cal. 184. 20 People v. Warren, 130 Cal. 683; see also People v. Little- field, 5 Cal. 355; People v. Stanford, 64 Cal. 27. -i People v. Robles, 34 Cal. 591. -- People v. Burns, 121 Cal. 529. 2.'< People v. Prather, 120 Cal. 660. 2-* People v. St. Clair, 56 Cal. 406. 23 People v. Smith, 15 Cal. 409. SB People v. Strong, 46 Cal. 303. 27 People v. Cheong Foon Ark, 61 Cal. 527; People v. Devine, 95 Cal. 229. LARCENY. 225 ant feloniously, wilfully and unlawfully took, stole and carried away. 28 Feloniously need not be alleged as the word steal charges a criminal intent. 29 While the word steal imports larceny, yet the use of the word feloniously before it is not erronious. 30 THE OWNERSHIP should be alleged as of the date of the offense, 81 but it may be by way of participle instead of by verb, though this method is not favored ; it is better to make positive averment. 32 Ownership is not essential to be alleged where the property is otherwise sufficiently described, 33 but where not otherwise described, the ownership becomes a material part of the description of the offense. 34 In any event it must appear that the ownership is in some one other than the defendant. 35 It may be alleged as of a firm name without specifying the partners of the firm. 36 The community property which is subject to the husband's con- trol and disposition is his property for the purpose of lar- ceny and the consent of the wife to the taking is no defense. 37 BAILEE. Indictment for larceny as a bailee must state all the essential facts of the bailment, but the particular mode of conversion need not be alleged, 38 but the description of the property must be alleged. 39 28 People v. Brown, 27 Cal. 500. 2 People v. Lopez, 90 Cal., 569; People v. Urquidas, 96 Cal. 239; People v. Tomlinson, 102 Cal. 25. so People v. Tomlinson, 102 Cal. 19. 31 People v. Lewis, 64 Cal. 401. 32 People v. Piggott, 126 Cal. 509. ss People v. Hughes, 41 Cal. 234. 34 People v. Wallace, 94 Cal. 501. as People v. Hanselman, 76 Cal. 460. se People v. Goggins, 80 Cal. 229; People v. Barnes, 65 Cal. 16; People v. Ribolsi, 89 Cal. 496; People v. Henry, 77 Cal. 447; People v. Ah Sing, 19 Cal. 598; People v. Hughes, 41 Cal. 237. It was formerly held in this state that if the property belonged to a partnership, the indi- vidual members must be alleged. People v. Bogart, 36 Cal. 245. ST People v. Swalm, 80 Cal. 46. 38 People v. Poggi, 19 Cal. 600; People v. Garcia, 25 Cal. 531; People v. Johnson, 71 Cal. 390. 39 People v. Peterson, 9 Cal. 314; People v. Poggi, 19 Cal. 601; People v. Johnson, 71 Cal. 390. 226 CK1MINAL LAW AND PROCEDURE. PENALTY. Grand larceny, imprisonment in state prison from one to ten years ; 40 petit larceny, fine not exceeding five hundred dollars or by imprisonment in county jail not exceeding' .six months or both. 41 FORM LARCENY. Wilfully, unlawfully and feloniously did steal, take and carry away [or lead and drive away, as the case may be] a certain pair of shoes [or other property, describing it], the personal property of one C D, of the value of - dol- lars, lawful money of the United States. NOTE. In case the property is owned by a partnership, the allegation may be "the property of C D and E F, copart- ners doing business under the firm name and style of D & F." In case of a corporation the allegation should be "the property of C D Company, a corporation." In case the property is of value exceeding fifty dollars or is taken from the person of another, or is a horse, mare, gelding, cow, steer, bull, calf, mule, jack, jenny or bicycle it is grand larceny. If from the person the allegation should be "then and there did take, steal and carry away from the person of one C D." PETIT LARCENY AFTER PRIOR CONVICTION. [Penal Code, sec. 667.] That on the day of - , 190 , by judgment of the justice court of township, county, state afore- said, the said A B was duly convicted of the crime of petit larceny committed as follows : That the said A B at and in the county of , state of California, wilfully, unlaw- fully and feloniously did steal, take and carry away one set of harness [or other property, describing it], the personal property of one E F and of the value of - - dollars law- ful money of the United States ; that afterwards, to wit, on the day of , 190 , the crime of petit larceny was committed by said A B, committed as follows : That on said day of , 190 , at and in the county of , state of California, the said A B wilfully, unlawfully and felon- o Penal Code 489. Penal Code 490. LARCENY. 227 iously did steal, take and carry away one coat [or other property, describing it], the personal property of C D and of the value of - dollars lawful money of the United States. FORM CONVERSION OF REAL ESTATE. Wilfully, unlawfully and feloniously did sever from the dwelling house [or other realty, naming it] of one C D there situate, one gas fixture [or other property, describing it], the property of the said C D, of the value of dollars lawful money of the United States, and then and there unlawfully and feloniously did take, steal and carry away the same. CHAPTER XXXIV. LIBEL. [Penal Code, sec. 248.] PURPOSE OF LAW. Prosecutions for libel are conducted for public purposes. The publication of libel has a tendency to provoke breaches of public peace, which the law is solicitious to maintain and preserve. Persons feeling themselves injured by such pub- lications are incited, in many instances, to seek satisfaction by personal violence inflicted upon the supposed Hbeler. The law out of a precautionary policy, and in the interest of the preservation of the peace of society, discourages such violent remedies and provides a punishment for the libeler, who wantonly puts the ^public peace at hazard by printing and publishing untrue and malicious attacks on private character. 1 DEFINED. A libel is a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural or alleged defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule. 2 An injurious publication is presumed to ha-ve been malicious if no justifiable motive for making it is shown, 3 but a com- munication made to a person interested in the communication by one who is also interested, or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to have been malicious 1 People v. Crespi, 115 Cal. 50. 2 Penal Code 248. a Penal Code 250. LIBEL. 229 and is a privileged communication. 4 And in all prose- cutions for libel the truth may be given in evidence, and if it appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted. The jury are judges of both the law and the facts, 5 but the jury are not at liberty to determine that what the statute declares to be criminal libel is not such. 6 It is not necessary that the words or things complained of should have been read or seen by another. It is sufficient that the accused knowingly parted with the immediate custody of the libel, under circumstances which exposed it to be read or seen by any other person than him- self. 7 It need not appear that the accused personally wrote or printed or circulated the libel. It is enough to show that he had control and knowingly allowed the libel to be printed or published, 8 for each author, editor and prop- rietor of any publication, is chargeable with the publication of any words contained in any part thereof, 9 but he is not liable to a prosecution for a fair and true report of any judicial, legislative or other public official proceedings, or of any statement, speech, argument or debate in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication. 10 Libelous remarks or comments, however, connected with such report are not privileged. 11 The editor- ship and proprietorship of the paper is not a part of the corpus delicti ; and acts and admissions relative thereto do not amount to a confession. 12 PENALTY. Fine not exceeding five thousand dollars or imprisonment in the county jail not exceeding one year. * Penal Code 256. s Penal Code 251. e People v. McDowell, 71 Cal. 194. " Penal Code 252. s People v. Miller, 122 Cal. 84. 9 Penal Code 253. 10 Penal Code 254. 11 Penal Code 255. 12 People v. Mi'ller, 122 Cal. 84. 230 CRIMINAL LAW AND PROCEDURE. INDICTMENT. The indictment need not set forth any intrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter on which the indictment was founded ; but it is sufficient to state generally that the same was published concerning him, and the fact that it was so published, must be established on the trial. 13 If the attack is not libelous on its face, the indictment must allege the facts by way of innuendo or colloquium to show such fact. 14 VENUE. The crime is indictable in the county of the residence of the prosecutor. And it may be shown that the paper was circulated there, but it need not appear by whom. 18 FORM. Wilfully, unlawfully and maliciously, and with intent thereby to injure and defame one C D, and to expose him to public hatred, contempt and ridicule, did compose, print and publish in a certain newspaper called the , printed and published at , in the county of , state of California, and circulated in said county, certain false, scandalous, malicious, defamatory and libelous words of, and concerning the said C D, to wit: [Here set out the defamatory words.] is Penal Code 964. " People v. Collins, 102 Cal. 345. IB In re Kowalsky, 73 Cal, 120; People v. Miller, 122 Cal. 93. CHAPTER XXXV. LIQUORS, SBLLING TO INDIANS. [Penal Code, sec. 397.] DEFINITION. Is the sale or giving of intoxicating liquors to Indians of full blood without reference to the question whether they have or have not adopted the habits of civilization or sepa- rated themselves from tribal relations, or have become citizens of the United States. 1 The act was intended to apply to Indians as a class and was enacted in view of their well-known race peculiarities and is not in conflict with any provision of the constitution of the United States or of this state. 2 It is general and uniform in its operation because it affects in the same manner all persons belonging to the class to which it refers ; s nor does it deprive any citizen of his privileges and immunities as such. 4 INDICTMENT. The indictment need not allege the name of the Indian to whom the liquor was furnished. And, an allegation of furnishing intoxicating liquors at the same time and place to two Indians states but a single offense, and where the proof shows sale to only one Indian, it is no variance. 5 The indictment may allege the furnishing and the causing to be furnished as one offense. 6 1 People v. Bray, 105 Cal. 345. 2 People v. Bray, 105 Cal. 345. s Ex parte Smith, 38 Cal. 710. * People v. Bray, 105 Cal. 345. B People v. Faust, 113 Cal. 172. e People v. Gusti, 113 Cal. 177. 232 CRIMINAL LAW AND PROCEDURE. PENALTY. Imprisonment in state prison or in county jail not exceed- ing two years, or by fine not exceeding one thousand dol- lars, or both. FORM SELLING LIQUOR TO INDIANS. Wilfully, unlawfully and feloniously did sell and furnish and cause to be furnished intoxicating liquors to wit, wine [or other liquor, naming it] to an Indian. 7 MANSLAUGHTER, see HOMICIDE. ? People v. Faust, 113 Cal. 172; People v. Gusti, 113 Cal. 177. CHAPTER XXXVI. MAYHEM. [Penal Code, sees. 203-4.] DEFINED. Mayhem is the unlawful and malicious depriving of a human being of a member of his body, or disabling, dis- figuring or rendering it useless, or cutting or disabling the tongue, or putting out an eye, or sliting the nose, ear or lip. 1 Malice aforethought is not an ingredient of the crime and proof of premeditation or deliberation is not required ; but it is sufficient to prove the commission of the act, from which the law will presume malice, though it be done in pursuance of an intent formed during a mutual combat, unless the evidence show circumstances constituting self defense. 2 But the biting is not equivalent to the sliting of the lip, as a bite may not amount to mayhem. 3 But the biting off of an ear of a human being is mayhem, 4 and the crime includes an assault, 3 but where the evidence shows the defendant guilty of mayhem, or of no offense, it is proper to instruct the jury that they cannot find defendant guilty of any less offense than that charged. 6 The name by which the person injured was commonly known, although not his true name, may be shown where he has assumed the name by which he was described in the indictment for the pur- poses of shielding his family. 7 1 People v. Wright, 93 Cal. 565. 2 People v. Wright, 93 Cal. 565. s People v. Demasters, 105 Cal. 669. * People v. Golden, 62 Cal. 542. s People v. Wright, 93 Cal. 565; People v. Demasters, 105 Cal. 669. 6 People v. Wright, 93 Cal. 565. 7 People v. Plyler, 121 Cal. 160. 234 CRIMINAL LAW AND PROCEDURE. PENALTY. Imprisonment in state prison not exceeding fourteen years. FORM ASSAULT TO COMMIT MAYHEM. Wilfully, unlawfully and feloniously did assault one C D, with intent to commit mayhem. 8 FORM MAYHEM. Unlawfully, maliciously and feloniously did assault one C D, a human being, and deprive the said C D of a portion of a member of his body, to wit, a portion of his ear [or other member, naming it], by unlawfully, maliciously and feloniously biting off the same, thereby disfiguring [or dis- abling or rendering useless] the said member. ANOTHER FORM. Unlawfully, maliciously and feloniously did assault one C D, a human being, and put out one of the eyes [or slit the nose, ear, or lip] of the said C D. s People v. Demasters, 105 Cal. 669. CHAPTER XXXVII. MEIJICINK. [Statutes 1875-6, p. 792; Statutes 1877-8, p. .,18.1 DEFINED. Medicine, unlawfully practiced, is the practicing of medi- cine without first having obtained a license so to do. A person who professes publicly to be a physician, or who habitually prescribes for the sick, or who appends to his name the letters M. D., is to be regarded as practicing medi- cine within the meaning of the statute. But this act does not prohibit gratuitous services in cases of emergency. EMERGENCY. An emergency which would justify a person practicing medicine without, a certificate, within the meaning of the law, is a case where a regular and qualified physician is not readily obtainable. And the fact that a sick person has been given up as incurable by a physician of the schools, does not create an emergency. 1 THE LICENSE. The burden is upon the defendant to^show a license, and, in the absence of such proof, it must be presumed that he had not procured one. It is not necessary for the prose- cution to negative this fact as it is one peculiarly within the knowledge of the defendant. 2 Neither must the infor- mation allege the existence of a medical society named in the statute, 3 nor plead the statute by its title or name. 4 1 People v. Lee Wah, 71 Cal. 80. 2 People v. Boo Doo Hong, 122 Cal. 606. s People v. Boo Doo Hong, 122 Cal. 606; People v. O'Leary, 77 Cal. 30. * People v. O'Leary, 77 Cal. 30. 236 CRIMINAL LAW AND PROCEDURE. PENALTY. Fine of from fifty to five hundred dollars or imprisonment in county jail from thirty to three hundred and sixty-five days, or both ; but to file or attempt to file a fraudulent cer- tificate or diploma, is punishable as forgery. FORM. Then and there being in the county of , wilfully and unlawfully did practice medicine in said county ; that prior to said time, said A B had not procured a certificate to so practice from one of the boards of medical examiners appointed by the medical society of the state of California, the eclectic medical society of the state of California, or the California state homeopathic medical society, and prior to said time said A B had not procured a certificate to practice medicine granted by the board of examiners, appointed by the California state medical society of homeopathic prac- titioners, and the said A B was not at said time a lawfully commissioned surgeon of the United States army or navy, practicing his profession within the limits of the state of California. 6 MISCARRIAGE, see ABORTION. MUTINY, DISTURBING, see DISTURBANCES OF THE PEACE. r- People v. O'Leary, 77 Cal. 30. CHAPTER XXXVIIL i MISDKMKANOR IN OFFICE. [Penal Code, sec. 772.] DEFINED. Misdemeanor in office is the charging and collecting of illegal fees ; or neglecting or refusing to perform the duties of an office. 1 This section provides for a removal of public officers by summary proceeding. 2 It contemplates proceed- ings founded upon a written accusation of a private person, and not upon a public indictment or information brought in the name of the people. 3 The proceeding lies only against one in office and not against one whose term has expired.* The summary manner of the trial of civil officers under this section excludes the right of trial by jury; and the provis- ion of the constitution that "the right of trial by jury shall be secured to all, and remain inviolate," refers generally to those cases in which the right of trial by jury existed at common law, at the time of the adoption of the constitution, and does not include new offices created by the statutes after the adoption of the constitution, or the case where the legislature creates an office and subjects the incumbent to a trial for his official misconduct without a jury. 5 The constitution, after enumerating certain officers and providing for their impeachment, expressly provides that all other civil officers shall be tried for misdemeanor in office 1 Penal Code 772. 2 In re Marks, 45 Cal. 199; In re Curtis, 108 Cal. 661. 3 Woods v. Varnum, 85 Cal. 639; In re Marks, 45 Cal. 199, * Woods v. Varnum, 85 Cal. 639. 5 Woods v. Varnum, 85 Cal. 639. 238 CRIMINAL LAW AND PROCEDURE. in such manner as the legislature may provide. This sec- tion contemplates a criminal and not a civil prosecution, 7 in the nature of an impeachment, 8 and is limited to district, county and township officers, and does not include a state officer. 9 A judgment thereunder is final, from which an appeal does not lie. 10 It does not apply to a failure of an officer to reside in the county seat, but only the acts to be performed in his official capacity. 11 PENALTY. Removal from office, and a judgment of five hundred dollars in favor of the informer, and such costs asare allowed in civil cases. MONUMENTS, DEFACING, see SEPULCHER. MURDER, see HOMICIDE. OFFICERS, REMOVAL OF, see MISDEMEANOR IN OFFICE. e Woods v. Varnum, 85 Cal. 639; In re Marks, 45 Gal. 199. This doctrine has been doubted, however, in Morton v. Broderick, 118 Cal. 474,483, where the court said in speaking of prosecutions under this section, that, " if criminal, then indisputably defendants were denied a right reserved to them and to all by the constitution of the state, namely, that all prosecutions shall be con- ducted in the name and by authority- of the People of the state of California, and not by private persons." And in Pitch v. Board of Supervisors, 122 Cal. 285, 288, in construing a similar statute, declared: " The provis- ion in the section that the penalty may be imposed, ' at the suit of any interested party ' is, however, inconsist- ent with section 20 of article VI of the constitution, which is: 'The style of a process shall be, "The People of the state of California," and a prosecution shall be conducted in their name and by their authority.' " And it might also be suggested that this proceeding is a denial of the constitutional right of a trial by jury. i Kilburn v. Law, 111 Cal. 237. s In re Curtis, 108 Cal. 661. Kilburn v. Law, 111 Cal. 237. 10 In re Curtis, 108 Cal. 661; People v. Donnell, 110 Cal. 655; Morton v. Broderick, 118 Cal. 485. 11 Ex parte Harrold, 47 Cal. 129. CHAPTER XXXIX. FERJTJRY. [Penal Code, sees. 118-128.] DEFINED. Perjury is the crime of testifying falsely before any com- petent tribunal, officer or person, in any case in which an oath may be by law administered, to any material matter known to be false. 1 The elements of the offense are: (i) A judicial proceeding or course of justice; (2) The defendant having been sworn to give evidence therein; (3) His testimony; (4) Its falsity and knowledge on the part of the defendant that it was false; and (5) Its materiality to the issue or point of inquiry. 2 The intent to swear falsely is one of the necessary elements of the crime. 3 The testi- mony must be wilfully false. 4 There can be no wilful perjury where the witness is honestly mistaken in his tes- timony, or the oath is according to the belief and conviction of the witness as to its truth. While an unqualified state- ment of that which one does not know to be true is equi- valent to a statement of that which one knows to be false, yet it must be shown that such statement was made wilfully, that is, with a consciousness that it was not known to be true and with the intent that it should be received as a statement of what was in fact true. 5 Perjury cannot be predicated upon the promise in an oath of office as to the future per- formance of official duties. 6 It is no defense to a prosecution 1 Penal Code 118. 2 People v. Barry, 63 Cal. 62. s People v. Rodley, 131 Cal. 240. * People v. Turner, 122 Cal. 679. s People v. Von Tiedeman, 120 Cal. 128. e Penal Code 120. 240 CRIMINAL LAW AND PROCEDURE. for perjury that the oath was administered or taken in an irregular manner, 7 nor that the accused was not competent to give the testimony. 8 MATERIALITY OF THE TESTIMONY. The false testimony must be material to the issue, 9 and therefore prejudicial to some one. 10 And it must be shown to have been material at the time it was given. 11 Its mater- iality is a question of law for the court, and it is the duty of the court to instruct the jury as to what facts would show material testimony. 12 Any of the matters which circum- stantially tend to prove the issue are material, and any evi- dence tending in a material degree to strengthen the case of a party to an action is material. 13 Thus in a murder case, that the deceased was seen alive after the murder alleged, is material, and, if false, will form the basis of perjury. 14 And the denial of having made a different statement is material, as it affects the credibility of the witness. 15 Admissions of the killing do not render immaterial the testimony as to the facts occuring at the homicide, otherwise material to the issue, as to whether the defendant was probably guilty of the crime. 10 A notary public has a right to examine a person under oath who represents he is a grantor in a deed, and, if he testifies falsely to such fact, it is a material fact. 11 Testimony on the probate of a forged will is material. 18 Perjury may be predicated upon an oath to an inventory in t Penal Code 120. s Penal Code 122. People v. McDermott, 8 Cal. 288; People v. Jones, 123 Cal. 299; People v. Ah Sing, 95 Cal. 657; People v. Perazzo, 64 Cal. 106. 1 People v. Jones, 123 Cal. 299. 11 People v. Lem You, 97 Cal. 224. 12 People v. Clementshaw, 59 Cal. 385; People v. Lem You, 97 Cal. 224. People v. Von Tiedeman, 120 Cal. 128. ! People v. Green, 54 Cal. 592. is People v. Barry, 63 Cal. 62. ie People v. Hitchcock, 104 Cal. 482. " Ex parte Carpenter, 64 Cal. 263. is People v. Rodley, 131 Cal. 240. PKBJUBY. 241 an insolvency. proceeding, 19 notwithstanding that the insol- vency act makes it a misdemeanor, 20 upon the oath to be registered as a voter, 21 and upon an affidavit of proof of publication used in a probate proceeding. 22 But the crime is not shown until the affidavit is used or delivered to another for use. 23 An affidavit of justification to a bail bond containing a list of property following the affidavit of justification with no connection with the affidavit, will not sustain the charge. 24 A false oath as to ownership is not perjury where the only proof negativing ownership in the defendant was a deed to the property showing title in another man a year before. 25 Perjury does not include an estimate by a bank cashier of the standing of the bank in absence of a showing that there was a wilful failure to exercise honest judgment. 26 And a qualification on a bail bond for larcenv. where the commitment is for robbery, will not sustain a charge of perjury; 27 neither will a false oath in a land office of the United States on a prosecution in the state court. 28 It is no defense that the accused did not know the materiality of the false statement made by him, nor that it did not, in fact, affect the proceedings in or for which made. It is sufficient that it was material and might have been used to affect such proceeding. 29 PROCURING FALSE EVIDENCE. 30 To constitute this offense there must be an intent to pro- duce false evidence for a fraudulent and deceitful purpose. Carelessness, however gross, does not show such intent. 31 19 People v. Naylor, 82 Cal. 607; People v. Robles, 117 Gal. 684. 20 People v. Platt, 67 Cal. 21. 21 People v. Waite, 102 Cal. 251. 22 People v. Rodley, 131 Cal. 240. 23 People v. Robles, 117 Cal. 681; People v. Maxwell, 118 Cal. 51. 24 People v. Bartman, 81 Cal. 200. 25 People v. Strassman, 112 Cal. 683. 26 In re Howell, 114 Cal. 250. 2T People v. Strassman, 112 Cal. 683. 28 People v. Kelly, 38 Cal. 145. 20 Penal Code 123. so Penal Code 132-138. si People v. Brown, 74 Cal. 306. CRIMES--16 242 CRIMINAL LAW AND PROCEDURE. THE OATH. The form of the oath is not material, 32 but the authority 'to administer the oath is essential; and where the judge of a superior court sits as a magistrate, the clerk of the court has no authority to administer the oath. 33 The authority to administer is a question of fact to be established by the people at the trial. 84 The oath in an insolvency proceeding is taken when the papers are filed at the instance of the defendant. 36 i EVIDENCE. Evidence of circumstances alone, without positive testi- mony of a witness to facts absolutely incompatible with the innocence of the accused, is insufficient to justify a con- viction. 38 The testimony of two witnesses, or one witness and the corroborating circumstances, is essential to convic- tion. 37 One witness uncorroborated is not sufficient to con- vict, 88 but the direct evidence of two witnesses, or one wit- ness and corroborating circumstances, is required only upon the question as to the falsity of the testimony. 39 Admissions which do not go directly to the matter charged but only to collateral matters from which the jury is to draw inferences of guilt will not sustain the charge. 40 The complaint in the proceeding in which the false testimony is alleged to have been given, is admissible to show the pendency of the case. 41 Parol evidence of what the accused swore to before the magistrate is admissible. 42 For the purpose of showing the materiality of the alleged false testimony, the testimony given at the trial at which the perjury was committed may be proved by persons other than the one who gave it. 43 On a 32 People v. Rodley, 131 Cal. 240. as People v. Cohen, 118 Cal. 74. 34 People v. De Carlo, 124 Cal. 462. SB People v. Maxwell, 118 Cal. 50. 3 People v. Porter, 104 Cal. 415. 37 People v. Wells, 103 Cal. 631; People v. Porter, 104 Cal. 418; People v. Maxwell, 118 Cal. 54. 38 People v. Davis, 61 Cal. 536. 39 People v. Eodley, 131 Cal. 240. *o People v. Maxwell, 118 Cal. 50. 41 People y. Lee Fat, 54 Cal. 527. 42 People v. Curtis, 50 Cal. 95; People v. Herbert, 61 Cal. 546. 43 People v. Lem You, 97 Cal. 224. PERJURY. 243 trial of a charge for perjury, there is a presumption in favor of the validity of the election and the qualification of the justice of the peace who administered the oath and these matters cannot be questioned by the defendant. 44 The reporter's notes of the alleged false testimony, taken through an interpreter, are inadmissible, 45 but otherwise, when the interpreter was present at the trial, and testified to the cor- rectness of the deposition. 46 Jurisdiction of the court in which the false testimony was given, is determined from the record ; and, where the decree contains all the necessary recitals to show jurisdiction over the matter, an irregularity in the proceeding will not avail the accused. 47 SUBORNATION OF PERJURY. 48 All the elements constituting the crime of perjury are necessary to this crime. It is necessary to show that the issue upon which the false testimony was given was material, and that the evidence of the suborned witness was material to that issue; that the statements made by the witness were not only false in fact, but that he knew them to be false, and the party procuring him to make such statement knew that it would be intentionally and wilfully false on the part of the witness. 49 INDICTMENT. It must allege that the testimony was wilfully false, 50 and state all the essential elements of the crime. 51 A direct allegation cannot be supplied by intendment or implication; and facts stated by way of argument, recital or inference, are insufficient ; 52 they must be alleged affirmatively, directly and positively. 53 The allegation of the materiality of the oath must be made ; or facts alleged showing that it was 4* People v. De Carlo, 124 Cal. 462. 45 People v, Lee Fat, 54 Cal. 527. 46 People v. Sierp, 116 Cal. 250. 47 People v. Rodley, 131 Cal.. 240. 48 Penal Code 127. 49 People v. Ross, 103 Cal. 425. so People v. Turner, 122 Cal. 679. si People v. Ross, 103 Cal. 425. 52 People v. Jones, 123 Cal. 299. 53 People v. Dunlap, 113 Cal. 72. 244 CRIMINAL LAW AND PROCEDURE. material. 84 Allegations of jurisdiction need only be in general terms, and need not set forth the facts on which the jurisdiction depends. 55 The jurisdiction of the officer to administer the oath must also be alleged. 56 Materiality of the testimony may be alleged in general terms without speci- fying any particular issue upon which it was material, or showing how it was material, 57 unless it affirmatively appears from other averments that it was immaterial. 58 There are two modes by which the materiality of the alleged false statement may be shown in the pleading: (i) By setting forth the nature of the issue and the evidence given thereon, so that, as a matter of law, it may be said the testimony upon which the perjury is assigned is material to the issue; (2) By showing an action at issue in a court of competent juris- diction, the testimony given, its wilful and felonious falsity, coupled with the averment that it was material to the issue. 8 * The indictment must charge the defendant with false aver- ments contrary to his oath, knowing the same to be false and that he wilfully and contrary to such oath, stated as true a material matter which he knew to be false. The statement that the defendant committed wil- ful perjury is a mere conclusion of law. 60 In an indictment for subornation of perjury it is necessary not only to show that the issue upon which the false testi- mony was given was material, but also to show that the evi- dence of the suborned witness was material to that issue, either by direct averment, or by stating evidence given by the witness, which the court can judicially see was material. 01 The indictment must allege that the defendant M People v. Kelly, 59 Cal. 372; People v. Ah Bean, 77 Cal. 15. so People v. De Carlo, 124 Cal. 462. so People v. Howard, 111 Cal. 655; People v. Cohen, 118 Cal. 74. 5? People v. Rodley, 131 Cal. 240; People v. De Carlo, 124 Cal. 462. ss People v. Brilliant, 58 Cal. 214. so People v. Ah Bean, 77 Cal. 12. o People v. Turner, 122 Cal. 679. i People v. Ross, 103 Cal. 425. PERJURY. 245 was sworn, that he would testify, depose or certify truly before a competent tribunal. 02 PENALTY. Perjury and subornation of perjury, ordinarily , imprison- ment in state prison from one to fourteen years. If it pro- cures the conviction and execution of an innocent person, is punishable by death. Falsifying evidence , imprisonment in the state prison not exceeding five years, except that prevent- ing a witness from attending a trial or practicing fraud or deceit on a witness or destroying or concealing documentary evidence is punishable by imprisonment in county jail not exceeding six months or fine not exceeding five hundred dollars, or both. FORM PER J URY. Heretofore, to wit, on the day of , 190 , in the county of - , state of California, a certain criminal action known as "The People etc. v. C D, No. ," in which C D was charged with petit larceny, alleged to have been committed in said - - county on the day of , 190 , came on regularly to be tried in due form of law and was then and there tried by A C P, who was then and there the duly elected, qualified and acting justice of the peace of township, in said county and state, and a jury of said township and county in that behalf duly sworn, upon which said trial the said defend- ant, A B, appeared as a witness for and in behalf of said defendant C D, and was then and there duly sworn before said justice of the peace, and said jury, in open court, that the evidence which he, the said A B, should give to the said court then and there, and to the jury so sworn as afore- said, touching the matters then in question in the trial of said criminal action, should be the truth, the whole truth and nothing but the truth ; and on the trial of said criminal action it became material to inquire where the said C D was on the day of , 190 , at which time, as it appeared from the evidence, the said crime of petit larceny charged 02 People v. Simpton, 133 Cal. 367. 246 CRIMINAL LAW AND PROCEDURE. in the criminal complaint in said action was committed, and the said A B then and there falsely, knowingly, maliciously, wilfully and corruptly testified in substance as follows, to wit : That during all of the time between the day of , 190 , and the day of - , 190 , the said A B was in company with the said C D in the city of , in county, California, and in truth and in fact' the said A B was not in the company of the said C D in said city of , in county, California, or in the company of the said C D at all, during all of the time between the said - - day of , 190 , and the said - day of , 190 , or during any portion of the said time between said dates, as he, the said A B then and there well knew in said justice court of said township at the time of the making in court of said false statements ; And said oath was duly and legally admin-' istered to the said A B on the day of ; , 190 , in said justice court by the said A C P, who was a duly elected, qualified and acting justice o.f the peace in and for said town- ship, and who had then and there competent authority to administer such an oath in such matters and proceedings, and particularly in said criminal action known as ''The People v. C D, No. - ;" And said false statements so made as aforesaid under oath in the manner and form as aforesaid were then and there material to the issues therein involved in the trial of the said criminal action, known as the People v. C D, No. - . FORM SUBORNATION OF PERJURY. [Set out a charge of perjury as in preceding form a'nd continue as follows] : And one, E F at and in county, California, on or about the day of - , 190 , did well know the testimony so given by the said A B as aforesaid was knowingly, wil- fully and corruptly false, and did feloniously, wilfully and corruptly, suborn, incite and procure the said A B, being sworn as aforesaid, feloniously, knowingly, wilfully, cor- ruptly and falsely to testify as aforesaid ; and in truth and in fact as both the said A B and the said E F then and there PERJURY. 247 well knew, both at the time of the corrupt procurement of the said wilfully false and corrupt testimony as aforesaid by the said E F from the said A B and at the time of the giving of the said false testimony by the said A B as afore- said, the said A B was not in the company of the said C D in. the said city of - - in county, California, or in the company of the said C D at all, during all of the time between said i day of , 190 , and the said day of , 190 , or during any portion of said time between said dates, and the said E F did feloniously, corruptly, know- ingly and wilfully procure the said A B to testify falsely and corruptly as aforesaid before the said false testimony was given in said justice court as aforesaid. PERSONATION, see FALSE PERSONATION. CHAPTER XL. POLLUTION OK WATKR. [Penal Code, sec. 374.] POLLUTION OF WATER SUPPLY. Wilfully and unlawfully did keep a large number of sheep, to wit, about two thousand sheep, penned and cor- ralled in, over and on the banks of that certain stream of water known as the , so that by reason of keeping said sheep so penned and corralled as aforesaid the waters of said stream then and there became polluted ; and from which said stream water was then and there, ever since has been, and now is, drawn for the supply of the inhabitants of the town of , said town being then and there a town in the state of California. 1 PRISON, see ESCAPES. PRIZE FIGHTS, see DISTURBANCES OF THE PEACE. PROFANITY, see DISTURBANCES OF THE PEACE. PROSITUTION, see SEDUCTION. i People v. Borda, 105 Cal. 637. CHAPTER XLI. L Penal Code, sees. 261-264. J DEFINED. It is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, when such female is under the age of sixteen years, or is incapable from unsound- ness of mind of giving legal consent or when resistance is overcome by force and violence, or when will is overcome by drugs administered by the perpetrator, or when she is unconscious, or submits by reason of fraud which induces her to believe that the person committing the act is her husband. 1 CONSENT. After the prosecutrix reaches the age of consent, some force or intimidation must be shown or want of consent. 2 Force is a necessary element of the crime and distinguishes from seduction. 3 Words of solicitation and blandishments do not amount to force, and when the prosecutrix secumbs to them, she has consented, and it is not rape.* But under a charge of rape by force and violence, evidence to show com- mission by means of intoxicating and narcotic substances is admissible. 5 and when the charge is of rape of a female under age of consent, proof may be made of any other of the acts constituting the offense. 6 When the female is i Penal Code 261. - People v. Stewart, 85 Cal. 174; People v. Brown, 47 Cal. 447; People v. Fleming, 94 Cal. 312. s People v. Royal, 53 Cal. 62. * People v. Fleming, 94 Cal. 308. s People v. Snyder, 75 Cal. 323. o People v. Vann, 129 Cal. 118. 250 CRIMINAL' LAW AND PROCEDURE. under the age of consent, a want of consent need not be shown. 7 The law resists for her, 8 and force is not an element of the offense, as she is presumed incapable of conbenting. 10 Legal consent presupposes an intelligence capable of under- standing the act, its nature and probable consequences. And if the female is of unsound mind resistance and consent are immaterial. 11 The absence of outcry and immediate dis- closure of the outrage are not material when the female is under the age of consent. 1 - The object of the statute in fixing an arbitrary age of consent, is the protection of society by protecting from violation the virtue of young and unsophisticated girls. Although the assault ordinarily implies force by the assailant, and resistance by the one assaulted, it is not true where the girl is under the age of consent. 13 PENETRATION. The slightest penetration is sufficient to constitute the offense. 14 In instructing the jury, the court need not use the word sexual penetration, penetration being sufficient to describe the act. 15 EVIDENCE. To impeach her, it is proper to show that the prosecutrix had declared an intent to get the defendant into state prison. 10 The consummation of the offense may be proved by circumstances and surroundings, and the relationship of 7 People v. Stewart, 85 Cal. 174; People v. Verdegreen, 106 Cal. 211; People v. Webster, 111 Cal. 383; People v. Ranged, 112 Cal. 669; People v. Lourintz, 114 Cal. 629; People v. Gomez, 118 Cal. 328. s People v. Vann, 129 Cal. 118; People v. Gordon, 70 Cal. 467; People v. Verdegreen, 106 Cal. 211; People v. Gomez, 118 Cal. 328. People v. Benc, 130 Cal. 159; People v. Fleming, 94 Cal. 308; People v. Johnson, 131 Cal. 511; People v. Roach, 129 Cal. 33; People v. Rangod. 112 Cal. 669; People v. Lourintz, 114 Cal. 628, 10 People v. Verdegreen, 106 Cal. 214; People v. Lourintz, 114 Cal. 630. 11 People v. Griffin, 117 Cal. 383. 12 People v. Lee, 119 Cal. 84. 13 People v. Verdegreen, 106 Cal. 211. People v. Chavez, 103 Cal. 407; People v. Rangod, 112 Cal. 669. is. People v. Rangod, 112 Cal. 669. IB People v. Lambert, 120 Cal. 170. RAPE. 251 the parties may be shown to prove that the prosecutrix had a right to trust the defendant. 17 Evidence of the proportion of the false to true charges in rape cases is not proper. 18 In a prosecution where the female is under the age of con- sent, pregnancy is sufficient proof of the corpus delicti to authorize the admissions of the defendant. 10 In case of mental infirmity of the prosecutrix of long standing, the past, present and continued existence of such a condition may be shown. 20 Evidence showing merely a possible oppor- tunity for the commission of the offense by the defendant, but not excluding a reasonable opportunity for another, is not sufficient to convict. 21 AGE OF PROSECUTRIX. The age of the prosecutrix is one of. fact, and the jury is not bound to believe the testimony of the prosecutrix on that subject, even though uncontradicted. 22 To establish the age of the female, her mother may refresh her memory by aid of entries in the family bible, and the physician who attended at the birth may use his cash book for that pur- pose, 23 but such entries are not the best evidence and are admissible only where no person can speak from knowledge. 2 * Testimony of the prosecutrix is admissible not- withstanding the knowledge of her own age was gained from statements of her parents ; and entries in the family bible are admissible no matter in whose hand. 25 Alterations in the entries are questions for the court. 26 UNCORROBORATED TESTIMONY OF PROSECUTRIX. When the testimony of the female is inherently improbable if it is not corroborated, it will not support a conviction. 21 i? People v. Mayes, 66 Cal. 597. is People v. Benc, 130 Cal. 159. i(> People v. Tarbox, 115 Cal. 57. 20 People v. Griffin, 117 Cal. 583. 21 People v. Tarbox, 115 Cal. 57. 22 People v. Webster, 111 Cal. 381. 23 People v. Vann, 129 Cal. 118. 24 People v. Mayne, 118 Cal. 517; People v. Johnson, 106 Cal. 289. 25 People v. Ratz, 115 Cal. 132. 2 People v. Mayne,. 118 Cal. 516. -~ People v. Hamilton, 46 Cal. 540; People v. Ardaga, 51 Cal. 372; People v. Castro, 60 Cal. 118; People v. Kaiser, 119 Cal. 458; People v. Benson, 6 Cal. 221. CRIMINAL LAW AND PROCEDURE. But if the circumstances are probable and the story reason- able it may be sufficient alone to convict. 28 The fact that she made a public statement of the outrage soon after its occurrence, and the defendant was seen coming from her room at an unseemly hour, are sufficient corroboration. 29 COMPLAINT. The complaint of the outrage shortly thereafter by the prosecutrix is admissible but not the particulars of it. It is no part of the res gcstac ; it is only a fact corroborative of her testimony. The rule is to admit evidence of the fact of the complaint in all cases, and in no case to admit any- thing more. The evidence when restricted to this extent is not hearsay, but in the strictest sense original evidence. When, however, these limits are exceeded, it becomes hear- say in a very objectionable form. There is every reason, therefore, why it should be admitted to the extent indicated and none why it should be admitted further. The usual course is to ask the prosecutrix whether she made any com- plaint, and, if so, to whom, and, if she mentions a person to whom she made complaint, to call such person to prove the fact. But it has been the invariable practice not to permit either the prosecutrix or the person so called, to state the particulars of the complaint in chief. 30 The statement made by the assaulted child cannot be testified to by another, even though the child be incompetent as a witness by reason of tender years. 31 Absence of outcry and of indications of violence, with no immediate disclosure, are strong circum- stances tending to disprove the charge and exonerate the defendant from the charge of force. 32 But it is not con- as People v. Mayes, 66 Cal. 597; People v. Stewart, 90 Cal. 213; People v. Mesa, 93 Cal. 584; People v. Fleming, 94 Cal. 310; People v. Gardner, 98 Cal. 130; People v. Gomez, 118 Cal. 326. 20 People v. Rangod, 112 Cal. 669. so People v .Mayes, 66 Cal. 597; People v. Tierney, 67 Cal. 55; People v. Stewart, 97 Cal. 241; People v. Barney, 114 Cal. 556; People v. Lambert, 120 Cal. 172; People v. Baldwin, 117 Cal. 251; People v. Snyder, 75 Cal. 323. 31 People v. Graham, 21 Cal. 26. '2 People v. Benson, 6 Cal. 221; People v. Hamilton, 46 Cal. 543; People v. Ardago, 51 Cal. 372. RAPE. 253 elusive to disprove the charge, 33 as the reason for silence may be shown. 34 A long delayed complaint, however, is not admissible. 85 PHYSICAL CONDITION. The absence of the hymen may be testified to by an adult female who knows what the hymen is, and it is not necessary that she be a physician or skilled physiologist to render her competent. 30 The mother may state the result of an exam- ination of the child made by her. 37 The subsequent con- dition of the sexual organs may be shown, and the appear- ance of the prosecutrix, shortly after the assault, is also admissible as bearing on the effect of the acts charged. 38 OTHER ACTS OF INTERCOURSE. The evidence is not confined to one date, if the witness does not testify to acts on such date, which amount to rape, 30 but evidence of previous cruelty to prosecutrix is not admissible to prove a putting in fear. 40 The testimony of neighbors as to the beating of the prosecutrix by the defendant is admissible to corroborate her testimony as to cruel treatment and fear. 41 Where the prosecution was for crime committed on a girl under the age of consent, evidence of other acts of intercourse with the prosecuting witness is admissible. 42 When in such cases a single act is charged upon a particular date, and a series of acts of sexual inter- course proved, the prosecution must select the particular act relied upon, 42a and notify the defendant at the com- mencement of the trial as to the particular act upon which the prosecution intends to rely. Unless this is done the first evidence which tends in any degree to prove an offense 33 People v. Kuches, 120 Cal. 566. y34 People v. Mayes, 66 Cal. 597. 35 People v. Lambert, 120 Cal. 170; People v. Hamilton,. 46 Cal. 543. > People v. Barney, 114 Cal. 554. 37 People v. Baldwin, 117 Cal. 244. ss People v. Benc, 130 Cal. 159. 9 People v. Manahan, 32 Cal. 68. -40 People v. Tyler, 36 Cal. 522. 41 People v. Lenon, 79 Cal. 625. 42 People v. Ranged, 112 Cal. 669. 42a People v. Castro, 133 Cal. 11. 254 CRIMINAL LAW AND PROCEDURE. will be deemed a selection and unless proved the defendant must be acquitted. 4215 When a date is selected and notice thereof given evidence both before and after may be intro- duced as tending to sustain it. 42c . UNCHASTE CHARACTER. Previous lewdness of the proseciitrix is admissible, though proof of particular acts are preferable to geneial reputation. They are not admissible, however, to impeach her as a witness but to show consent by destroying the presumption of greatest reluctance and resistance. 43 But while the reputation for chastity and particular acts of unchastity are generally admissible for the purpose of showing the probability of consent, they are not admissible in pros- ecutions where the female is under the age of consent. 4 * Intercourse with others may also be shown for the same purpose, 48 but not indecencies of speech not, accompanied with lewd behavior. 49 The proseciitrix cannot testify as to her previous chastity on direct examination. It is inferred from absence of evidence to the contrary, and can only be admitted in rebuttal, 47 but such testimony is not admissible to prove innocence of specific acts of incon- tinence. 48 INCAPACITY TO COMMIT. If the defendant is incapable of consummating the sex- ual act it is a defense, 49 and the testimony of a physician may be admitted to show that it would have been phy- sically impossible to commit the act in the manner tes- 42b People v. Williams, 133 Cal. 165. 420 People v. Castro, 133 Cal. 11. 3 People v. Benson, 6 Cal. 221; People v. Harlan, 13a Cal. 16. 44 People v. Johnson, 106 Cal. 289; People v. Hartman, 103 Cal. 242; People v. Benc, 130 Cal. 159; People v. Har- lan, 133 Cal. 16. 45 People v. Shea, 125 Cal. 151; People v. Benson, 6 Cal. 221; People v. Johnson, 106 Cal. 289. 46 People v. Kuches, 120 Cal. 566. 47 People v. O'Brien, 130 Cal. 1; People v. Tyler, 36 Cal. 522; People v. Kuches, 120 Cal. 571. 48 People v. O'Brien, 130 Cal. 1. 4 People v. Wessel, 98 Cal. 352. RAPE. 255 tified to by the prosecutrix, 150 but not expert testimony as to possibility of forcible rape. 01 ASSAULT TO RAPE. In a charge of assault to rape a female under age' of consent, it is not necessary to show that the defendant intended to gratify his passion at all events, or to use force ; but it is enough that he intended to have intercourse and took steps towards that end. 1 But where the female is above such age, the crime is not shown unless the evidence establishes a settled purpose on the part of the defendant to use all necessary force. 2 The uncorroborated testimony of the prosecutrix is sufficient to establish the charge. 3 And the abandonment of the intent, before the consumma- tion of the act, by reason of the approach of others or by reason of the pains of a stricken conscience, is no defense. 4 The intent is a question of fact, and while a specific intent to have intercourse is necessary, indecent advances or the prostitution of the mind of a female child under the age of consent show such intent. 5 Intent is to be judged by the conduct of the defendant, not by that of the pros- ecutrix. 6 A simple assault is not an element of the offense, when whatever took place was with the willingness of the female. 7 An attempt to commit rape is distinguished from an assault with intent to commit. 8 INDICTMENT. It need not be alleged that the force and violence was so People v. Baldwin, 117 Cal. 244. si People v. Benc, 130 Cal. 59. 1 People v. Johnson, 131 Cal. 511. 2 People v. Fleming, 94 Cal. 308; People v. Stewart, 97 Cal. 240; People v. Kuches, 120 Cal. 568; People v. Gardner, 98 Cal. 130. s People v. Fleming, 94 Cal. 308; People v. Gardner, 98 Cal. 127; People v. Stewart. 90 Cal. 212; People v. Mesa, 93 Cal. 585; People v. Mayes, 66 Cal. 597. * People v. Stewart, 97 Cal. 238; People v. Johnson, 131 Cal. 511. s People v. Johnson, 131 Cal. 511; People v. Stewart, 97 Cal. 238. e People v. Roach, 129 Cal. 33. 7 People v. Gomez, 118 Cal. 326. s People v. Gardner, 98 Cal. 127. 256 CRIMINAL LAW AMD PROCEDURE. against the resistance of the female. 9 Neither is it nec- essary to allege the age of the perpetrator or any facts showing his capacity to commit the offense. These are matters of defense, unless the indictment shows on its face the contrary. 10 It is not essential to allege the female was not the wife of the accused. 11 Two offenses are not charged where a rape and an assault to commit are both charged. 12 An assault to commit the offense is not stated by alleging that the accused feloniously assaulted a female by throwing her on her back and attempting to have sexual intercourse with her with intent to outrage her. 13 PENALTY. Rape, imprisonment in state prison not less than five years; assault with intent to commit rape, imprisonment in state prison from one to fourteen years. FORM ASSAULT TO COMMIT. Unlawfully, feloniously and with force and violence did assault, with intent to commit rape, one C D, a female child under sixteen years of age, and without her consent and against her will. 14 FORM UNDER AGE OF CONSENT. Wilfully, unlawfully and feloniously did have sexual intercourse with one C D, the said C D being then and there a female child under the age- of sixteen years, and not being then and there the wife of the said A B. FORM BY FORCE. Wilfully, unlawfully and feloniously upon one C D, a female not the wife of the said A B, did make an assault, and the said C D forcibly and against her will and consent, feloniously did ravish and carnally know, the said C D then and there resisting all the time, but her resistance being overcome by the force and violence of said A B. o People v. Brown, 47 Cal. 447. 10 People v. Ah Yek, 29 Cal. 576; People v. Wessel, 98 Cal. 353. 11 People v. Estrado, 53 Cal. 600. 12 People v. Tyler, 35 Cal. 553. 13 People v. O'Neil, 48 Cal. 257. n People v. Mesa, 93 Cal. r>83. CHAPTER XLII. RECEIVING STOLEN GOODS. [Penal Code, sees. 496-497.] DEFINED. At common law, a person who for his own gain or to prevent the owner from again possessing his property buys and receives any personal property, knowing the same to have been stolen, would be an accessory after the fact to the larceny. But under our statute he is punishable in such cases for receiving stolen goods. 1 It is a different offense from either larceny or of an accessory after the fact. 2 The crime also covers the receiving of goods pro- cured by embezzlement 3 and by robbery. 4 WHAT ACTS SUFFICIENT. The defendant must have received the goods for his own gain, or to prevent the owner from again possessing hi3 property, knowing them to have been stolen. 5 The receiver is liable although he did not receive all of the property stolen ; and the grade of the offense does not depend on the value of the property received. 6 Where a foreman of a warehouse without authority to sell, sells to the defendant, who receives the goods knowing such fact, he is guilty of receiving stolen goods. 7 The guilty knowledge may be 1 People v. Stakem, 40 Cal. 599. 2 People v. Ward, 105 Cal. 652; People v. Hawkins, 34 Cal. 181. s People v. Perini, 94 Cal. 573. * People v. Shepardson, 48 Cal. 189. s People v. Avila, 43 Cal. 196; People v. Ribolsi, 89 Cal. 499; Penal Code 496. 6 People v. Fitzpatrick, 80 Cal. 538. 7 People v. Perini, 94 Cal. 573. CRIMES--17 258 CRIMINAL LAW AND PROCEDURE. inferred from the inadequate price paid, or the irresponsi- bility of the vendor and other such like circumstances. 8 The burden of proving the intent is on the prosecution throughout. 9 But when the property consists of jewelry, silver or plated ware, or articles of personal ornament, if purchased or received from a person under the age of eighteen, unless sold by such minor at a fixed place of busi- ness, carried on by said minor, or his employer, it is pre- sumptive evidence that the property was stolen. 10 Where, however, the defendant had no connection with the stealing of the property and did not know that it had been stolen at the time of his getting possession, of the same, he is not guilty. The receiving in good faith in such a case is imma- terial, and the defendant is not bound to establish it. 11 If the defendant had no knowledge of the crime prior to its commission, but afterwards received the stolen goods he cannot be convicted of larceny. 12 Where the evidence shows only the receiving of stolen goods, the question of whether the defendant knew the goods were stolen is to be determined from all the facts of the case. He is required to use the circumspection usual by persons taking goods by purchase; and this is imminently the case with dealers buying at greatly depreciated rates. That which a man in defendant's position ought to have suspected, he must be regarded as- having suspected, as far as was necessary to put him on guard and on his inquiries. The proof in any case is to be inferential, and among the inferences promi- nent are inadaquacy of price and irresponsibility of the vendor or depositor. 13 It is necessary that the goods the defendant is charged with receiving shall be shown to have been stolen goods ; but the stealing is sufficiently shown by s People v. Clausen, 120 Cal. 381. People v. Ribolsi, 89 Cal. 492; People v. Perini, 94 Cal. 575. 10 Penal Code 496. 11 People v. Ward, 105 Cal. 652. 12 People v. Maxwell, 24 Cal. 14; People v. Ward, 105 Cal. 652. is People v. Clausen, 120 Cal. 381; People v. Hertz, 105 Cal. 663. RECEIVING STOLEN GOODS. 259 the testimony of the owner and the thief. Thus, the thief may become an accomplice in receiving the stolen goods. 14 EVIDENCE. The failure to enter the purchase of the goods in a book, as required by law, is a part of the res gestae, and admis- sible. 15 The proof of the stealing is sufficiently shown by the testimony of the owner and of the thief. 16 The burden of the proof is on the prosecution throughout. 17 Guilty knowledge is inferred by inadaquacy of price or irresponsi- bility of the vendor. 18 It need not be shown that the defendant received all of the stolen property. 19 VENUE. When larceny is in one county and the stolen goods are received in another county, the receiver of the stolen goods cannot be convicted of larceny where the crime was com- mitted. 20 PENALTY. The offense is a felony or misdemeanor according to the nature of the judgment imposed by the court; and the defendant may be punished by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding six months, or by both. INDICTMENT. The indictment need not state the name of the thief, 21 nor need it allege the value of the property. 22 It is suffi- cient if it charges that the defendant received the stolen property for his own gain, knowing it to have been stolen. 23 i* People v. Clausen, 120 Cal. 381. is People v. Clausen, 120 Cal. 383. is People v. Clausen, 120 Cal. 383. IT People v. Ribolsi, 89 Cal. 49; People v. Perini, 94 Cal. 475. is People v. Clausen, 120 Cal. 381. i People v. Fitzpatrick, 80 Cal. 538. 20 People v. Stakem, 40 Cal. 599. -'i People v. Ribolsi, 89 Cal. 499; People v. Avila, 43 Cal. 196; People v. Clausen, 120 Cal. 383. 22 People v. Rice, 73 Cal. 220. 23 People v. Avila, 43 Cal. 196; People v. Ribolsi, 89 Cal. 499. 260 CRIMINAL LAW AND PROCEDURE. FORM RECEIVING STOLEN PROPERTY. Wilfully, unlawfully and feloniously, and for his own gain, did receive [or buy] one watch, of the personal prop- erty of C D, which had been previously stolen, and the said A B then and there well knowing the same to have been feloniously stolen. 24 REGISTRATION, FRAUDULENT, see ELECTION LAWS. REMOVAL FROM OFFICE, see MISDEMEANOR IN OFFICE. 24 People v. Avila, 43 Cal. 196; People v. Ribolsi, 89 Cal. 499. CHAPTER XLIII. RESISTANCE OF PUBLIC OFFICERS [Penal Code, sec. 148.] DEFINED. It is the wilfull resisting, delaying or obstructing any public officer in the discharge or attempt to discharge any duty of his office. 1 Resisting arrest does not always constitute the use of physical force ; a person may resist arrest by fleeing from an officer attempting to arrest him. 3 And this, though the officer did not inform the person to be arrested, of his intention to make the arrest, where it is clear that he knew the officer had called for that purpose.* But one who is not a peace officer has no right to arrest another for a misdemeanor not committed in his presence. And the person whom he attempts to arrest has a right to resist, and is justified in an assault made in an attempt to free himself from such illegal restraint. 4 INDICTMENT. The manner and means of the obstruction, resistance or delay need not be alleged, as they are matters of evidence. And when the information is for resisting an officer in the. service of a warrant of arrest, it is not necessary to set out the facts which constitute the offense for which the warrant was issued. 5 But it must allege that the offense was com- 1 Penal Code 148. 2 People v. Brooks, 131 Cal. 315; People v. Kilvington, 104 Cal. 86. s People v. Hawkins, 127 Cal. 372. 4 People v. Denby, 108 Cal. 54. s People v. Hunt, 120 Cal. 281. 262 CRIMINAL LAW AND PROCEDURE. mitted in the county, or show that the justice had jurisdic- tion to issue the warrant. 6 PENALTY. When no other punishment is prescribed, a fine not exceeding five thousand dollars and imprisonment in the county jail not exceeding five years. FORM. Wilfully, unlawfully and feloniously did resist, delay and obstruct one C D in the discharge and attempt to discharge his duties as a public officer, the said C D being then and there a duly elected, qualified and acting sheriff [or other officer, naming him] of the county of , and being then and there engaged as such officer in arresting one E F, who was then and there wilfully and unlawfully dis- turbing the peace, [or other duty, stating it.] 7 RIOT, see DISTURBANCES OF THE PEACE. People v. Craig, 59 Cal. 370. T People v. Hunt, 120 Cal. 281. CHAPTER XLIV. ROBBBRY. [Penal Code, sees. 211-213.] DEFINED. The crime is the felonious taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear. The fear may be either of unlawful injury to the person or property of the one robbed, or any relative or member of his family ; or of ani immediate and unlawful injury to the person or property of any one in the company of the person robbed at the time of the robbery. 1 Rob- bery is distinguished from larceny from the person, by the presence or absence of force or fear in the taking. 2 It has all the essential ingredients of larceny and more. 3 And a defendant under an indictment for robbery may be con- victed of larceny. 4 There are no degrees in robbery. 5 Robbery under the code is practically the same as at com- mon law. 6 But it may be accomplished by means of kid- napping, threats of torture and death. 7 OWNERSHIP BY ANOTHER. Ownership of property must be proved in some person 1 Penal Code 211-213. 2 People v. Church, 116 Cal. 300. s People v. Jones, 53 Cal. 58; People v. Crowley, 100 Cal. 480; People v. Ammerman, 118 Cal. 25 ;> People v. Church, 116 Cal. 300. * People v. Nelson, 56 Cal. 77; People v. Jones, 53 Cal. 58; People v. Chuey Ying Git, 100 Cal. 439; People v. Crowley, 100 Cal. 480. s People v. Gilbert, 60 Cal. 108. e People v. Shuler, 28 Cal. 490. 7 People v. Winthrop, 118 Cal. 85. 264 CRIMINAL LAW AND PROCEDURE. other than the accused. 8 And the owner of the property is not guilty of robbery in taking it from the person in pos- session. But it may be accomplished by taking property from another, although the person from whom it was taken was not the owner. 10 Where the proof show,* part of the money belonged to other persons than alleged in the indict- ment, it is no variance. 11 And a variance as to ownership does not vitiate the information for robbery. 12 VALUE OF PROPERTY. The property must, as in larceny, be alleged to have some value, but it is not necessary, as in larceny, to allege the value of the property for the purpose of determining the punishment, as the punishment does not depend upon the value of the property taken. 18 TAKING FROM THE PERSON. There must be not only a taking of the property, but it must be a taking from the person of another. 14 And where taken from the person it sufficiently shows it was taken from the possession also. 16 AGAINST THE OWNER^S WILL. Where the taking was with force, the law presumes that it was taken against the will of the party from whom it was taken. 16 INJURY TO PERSONS IN COMPANY. As was seen by the definition, where the fear of the injury is to any person in the immediate company of the person robbed, it is robbery ; so the boarding of a train with intent s People v. Shuler, 28 Cal. 494; People v. Ammerman, 118 Cal. 27. People v. Vice, 21 Cal. 344. 10 People v. Anderson, 80 Cal. 205; People v. Ammerman, 118 Cal. 25. 11 People v. Clark, 106 Cal. 32. 12 People v. Anderson, 80 Cal. 205; People v. Ribolsi, 89 Cal. 497. is People v. Chuey Ying Git, 100 Cal. 437. i* People v. Shuler, 28 Cal. 490; People v. Ammern^an, 118 Cal. 25. 15 People v. Walbridge, 123 Cal. 273. i People v. Riley, 75 Cal. 98. ROBBERY. 265 to take control thereof from the employees, by force and intimidation, and commit larceny or robbery thereon, is a robbery of the passenger train. 17 The pointing of a pistol at several persons riding with the person robbed and rob- bing them is one act of robbery. 18 THE INTENT. The intent is a question for the jury. 19 It must appear in robbery, as in larceny, that the goods were taken animo furandi, and with intent to deprive the person of them per- manently. 20 EVIDENCE. The evidence must show the locus delicti; and, where there is no evidence of the county in which the crime was committed, the conviction cannot be sustained. 21 It is proper, where evidence shows the robbery was by means of both force and fear to the person who is robbed, for the court to explain the fear by means of which the taking is constituted robbery. 22 The pointing of a pistol at several persons riding with the person robbed is a part of the res gestae and admissible. 23 The witness may testify to his understanding of the actions of the accused, even though he could not understand his language. 24 The defendant on trial may be compelled to stand up for com- parison.- 5 The possession of the stolen property may be taken into consideration in determining the guilt of the accused. 20 But the person who only receives the fruits of the robbery is not guilty of robbery. 27 And the pos- session of burglar's tools is not admissible to prove robbery i? People v. Lovren, 119 Cal. 88. is People v. Nelson, 85 Cal. 421. i People v. Woody, 48 Cal. 81. 20 People v. Reefer, 65 Cal. 232. 21 People v. Tarpey, 59 Cal. 371. 22 People v. O'Brien, 88 Cal. 483. 23 People v. Nelson, 85 Cal. 421. 24 People v. Clark, 106 Cal. 32. 25 People v. Oliveria, 127 Cal. 376; People v. Goldenson, 76 Cal. 347. 26 People v. Etting, 99 Cal. 577; People v. Abbott, 101 Cal. 647. 2" People v. Shepardson, 48 Cal. 189. 266 CRIMINAL LAW AND PROCEDURE. merely because a prior conviction of burglary is included in the indictment. 28 The possession of the stolen property recently after the robbery is a circumstance showing guilt. 29 Where all the evidence shows that defendant, if guilty of any crime, is guilty of robbery and not larceny, it is proper for the court to so instruct the jury. 30 INDICTMENT. The ownership of the property must be pleaded. 31 It must be alleged that the property taken was owned by another person. 32 But the charge that. the property was taken from one person and another person was the owner is sufficient. 33 Money may be described as lawful money of the United States. 34 The indictment must state that the property was taken from the person of another; it is not sufficient to say it was taken from another person. "' And where it is alleged the robbery was accomplished by means of force and fear, it is unnecessary to allege the property was taken without the consent of the person robbed. 38 And the allegation that it was taken from the person suffi- ciently shows that it was in his possession. 37 PENALTY. Imprisonment in state prison not less than one year. 38 FORM ROBBERY. In and upon one C D did make an assault, and thereby 28 People v. Sansome, 84 Cal. 449. -" People v. Clough, 59 Cal. 438; People v. Velarde, 59 Cal. 464. so People v. O'Brien, 88 Cal. 483. 31 People v. Ammerman, 118 Cal. 23. 32 People v. Vice, 21 Cal. 345; People v. Ammerman, 118 Cal. 25; People v. Shuler, 28 Cal. 494; People v. Hughes, 41 Cal. 237. :t3 People v. Shuler, 28 Cal. 490; People v. Ammerman, 118 Cal. 25. 34 People v. Riley, 75 Cal. 98. 35 People v. Beck, 21 Cal. 386. se People v. Riley, 75 Cal. 98. 37 People v. Walbridge, 123 Cal. 273; People v. Shuler 28 Cal. 490. ss People v. Winthrop, 118 Cal. 85; People v. Clary, 72 Cal. 59; Penal Code 213. ROBBERY. 267 did place him, the said C D, in bodily fear and danger of his life, and did then and there feloniously and unlawfully take from the said CD,- - dollars in gold and silver coin of the United States of America; all of which money was then and there in the possession of said C D, and was then and there the property, goods and chattels of said C D. That the said A B did then and there take from the person and against the will of said C D, the money aforesaid, unlawfully, wilfully, violently and forcibly, and did then and there, wilfully, feloniously, unlawfully and forcibly steal, take and carry away all of the said money. 39 ANOTHER FORM. Wilfully, unlawfully and feloniously did take from the person and possession of one C D, one watch of the per- sonal property of said C D, of the value of twenty-five dollars, lawful money of the United States, which said taking of said watch aforesaid, was then and there without the consent and 1 against the will of said C D, and was then and there accomplished by means of force used upon and against the said C D, by said A B, and by then and there putting the said C D in fear. 39 People v. Nelson, 56 Cal. 77. CHAPTER XLV. SEDUCTION. [Penal Code, sees. 266-268.] DEFINED. It is the having sexual intercourse with an unmar- ried female of previous chaste character under a promise of marriage, 1 or the inveigling or enticing of an unmarried female of previous chaste character under eighteen years of age, into a house of ill fame, or elsewhere for purposes of prostitution or procuring her to have sex- ual intercourse by means of fraud. 2 It is necessary to show that the person seduced was an unmarried female of pre- vious chaste character, and that she consented to the sexual act upon sole consideration of a promise to marry. All these elements are necessary to constitute the offense. 3 The exact date of the crime is not material. 4 PROMISE OF MARRIAGE. The purpose of the law is to protect female chastity. The promise of marriage need not be such a legal promise as would support an action for its breach, except where the woman knew the defendant was unable to perform. 5 The gist of the offense is the accomplishment of the sexual act by means of the promise. 6 But it is not essential that the express consent rested upon such consideration. And the 1 Penal Code 268. 2 Penal Code 266. 3 People v. Krusick, 93 Cal. 77; People v. Hough. 120 Cal. 540. * People v. Goodwin, 132 Cal. 368. B People v. Kehoe, 123 Cal. 224. a People v. Krusick, 93 Cal. 74. SEDUCTION. 269* statement of the prosecutrix in terms that she did not con- sent to; the act is not controlling on the jury where the evi- dence shows she did reluctantly yield. 7 And the informa- tion need not allege a promise made to the prosecutrix. It is sufficient if the language of the statute be followed and it be alleged that the defendant promised to marry her, although a direct allegation is better pleading. 8 It is no defense that he intended at the time to keep the promise, if hq afterward broke it. The female has the right to expect a fulfillment of the promise, even when made by an infant. The crime may be committed by an infant upon an infant if both parties have reached the age of puberty. 10 And the willingness of the defendant to marry the prosecutrix does not condone the offense. The woman has the power and right to decline the marriage. She; is the sole arbiter upon that question. 11 A marriage to be a defense must be upon a previous consent followed by a mutual assumption of marital rights, duties and obligations, evidenced by cohabi- tation as husband and wife. But mere copulation does not mean cohabitation. 12 CHASTE CHARACTER. The previous chaste character of the female is not pre- sumed against the innocence of the defendant. 13 It is one of the elements of the offense and must be proven. 14 The meaning of the term chaste character is simply that the female is virgo intacta. 15 And the inquiry is limited to character prior to the alleged seduction. 16 EVIDENCE. The previous chaste character is not established by the 7 People v. Wallace, 109 Gal. 611. s People v. Higuera, 122 Cal. 466. . a People v. Samonset, 97 Cal. 448. 10 People v. Kehoe, 123 Cal. 224. 11 People v. Hough, 120 Cal. 538. 12 People v. Lehmann, 104 Cal. 634. is People v. Roderigas, 49 Cal. 9. I* People v. Wallace, 109 Cal. 611; People v. Krusick, 93 Cal. 74. is People v. Kehoe, 123 Cal. 224. 16 People v. Wade, 118 Cal. 672; People v. Kehoe, 128, Cal. 224. 270 CRIMINAL LAW AND PROCEDURE. fact that the prosecutrix associated with reputable people. 17 Neither is the want of it established by the fact that the female permitted familiarities from men or was guilty of other indecencies. 18 But an acquaintance of the prosecu- trix, and of whose family she has been a member, may say whether she was chaste prior to the alleged seduction. 19 And a person who lived in the house where the prosecutrix was employed for two years, may testify to her good char- acter and reputation. 20 The testimony of the prosecutrix alone with the conceded fact of the intercourse and evi- dence establishing previous chaste character is sufficient to infer promise to marry. 21 And aj conviction may be had on the uncorroborated testimony of the prosecutrix. 22 The want of chastity of sisters of the prosecutrix cannot be shown on cross-examination, when not brought out in diief. 23 Evidence of pregnancy is admissible. 2 * ENTICING FEMALE TO HOUSE OF ILL FAME. Closely connected with the crime of seduction is the offense of enticing a female of previous chaste character, under eighteen, into a house of ill fame for the purposes of prostitution. 25 Seduction is not punishable under this law. It refers to the crime of procuring a female to have illicit carnal connection with another. But,, as in cases of seduc- tion, previous chaste character must be shown. 26 And this is a question for the jury. 27 PUTTING WIFE IN HOUSE OF ILL FAME. [Stat. 1891, p. 285.] A house of ill fame is a house used for the purposes of 17 People v. Krusick, 93 Cal. 74. is People v. Kehoe, 123 Cal. 224. i People v. Wade, 118 Cal. 672. 20 People v. Samonset, 97 Cal. 448. 21 People v. Hough, 120 Cal. 538. 22 People v. Goodwin, 132 Cal. 368; People v. Wade, 118 Cal. 672. 23 People v. Higuera, 122 Cal. 466. a* People v. Ranged, 112 Cal. 669; People v. Goodwin, 132 Cal. 371. 25 Penal Code 266. 26 People v. Roderigas, 49 Cal. 9. 27 People v. Elliott, 119 Cal. 593. SEDUCTION. 271 prostitution, and it is immaterial whether inhabited by more than one woman. 28 The gist of the offense is that the wife was in a house of ill fame with the consent of her husband. The consent may be shown by a failure to object after knowledge. 29 PENALTY. Seduction, imprisonment in state prison not more than five years, or fine not more than five thousand dollars, or both. Enticing unmarried female into house of ill fame, imprisonment in state prison not exceeding five years, or county jail not exceeding one year, or by fine not exceed- ing one thousand dollars, or both. Placing wife in house of prostitution, imprisonment in state prison from three to ten years. FORM SEDUCTION UNDER PROMISE OF MARRIAGE.' Did wilfully, unlawfully, feloniously and under the prom- ise of marriage, seduce and have carnal sexual intercourse with one C D, an unmarried female of previous chaste character. FORM ENTICING FEMALE INTO HOUSE OF ILL FAME. Wilfully, unlawfully and feloniously did inviegle and entice one C D, an unmarried female of previous chaste character and under the age of eighteen years, to wit, - years, into a house of ill fame and of assignation [or else- where, as the case may be] for the purpose of prostitution [or to have illicit carnal intercourse with one E F.] 28 People v. Slater, 119 Cal. 620. 29 People v. Bosquet, 116 Cal. 75. CHAPTER XLVL SEIZING LAND TWICE. [Penal Code, sec. 533.] DEFINED. Is the wilfull selling, bartering or disposing of land, for a valuable consideration, or the execution of an agreement therefor, after having previously sold, bartered or disposed of the same, or having executed an agreement therefor, with intent to defraud. To constitute the offense it must appear: (i) that there were two sales; (2) that) the second sale was for a valuable consideration, and (3) that it was made with intent to defraud either the first or second pur- chaser. 1 Giving a mortgage on the land by a party who has already conveyed the title is not disposing of the land within the meaning of this statute. 2 PENALTY. Imprisonment in state prison not less than one nor more than ten years. FORM. That on the day of -, 190 , to one C D did sell, barter and dispose of the following described real estate, to wit, [here describe land] and afterwards, to wit, on the day of , 190 , the said A B, for a valuable con- sideration, and with intent' to defraud one E F, wilfully, knowingly and feloniously did sell, barter and dispose of said land to said E F. 3 1 People v. Garnett, 35 Cal. 470. 2 People v. Cox, 45 Cal. 342. s People v. Garnett, 35 Cal. 470. CHAPTER XLVII. SEFMJLCHER, VIOLATION OF. [Penal Code, sec. 290.] DEFINITION. It is the mutilation, disinterment or removal from the place of sepulture of the dead body of a human being other than that of a relative or friend, removed for reinterment without authority of law. 1 FORM DISINTERMENT. Without authority of law disinterred and removed from its place of sepulture at C D cemetery, situate in said county, the dead body of one E F, a human being, the said dead body not being the dead body of a friend or relative of the said A B removed for reinterment. 2 DEFACING MONUMENT, see SEPULCHER. [Penal Code, sec. 296.] FORM DEFACING MONUMENT. Wilfully and maliciously did deface, break and destroy [or remove] a certain tomb [or monument or gravestone] standing in the C D cemetery in said county which said tomb [or monument or gravestone] had been erected over the grave of one E F, deceased, and to the memory of said E F. FORM FOR INJURING OR DESTROYING SHRUBBERY. Wilfully and maliciously did deface, break, destroy [or remove] a certain memento [or memorial, ornamental plant, 1 People v. Dalton, 58 Cal. 226. 2 People v. Dalton, 58 Cal. 226. CRIMES--18 274 CRIMINAL LAW AND PROCEDURE. tree or shrub] being in and appertaining to a placs of burial of human beings, to wit, in C D cemetery in said coumy. FORM FOR DEFACING FENCE, ETC. "Wilfully and maliciously did mark, deface, injure, destroy [or remove] a certain fence [or post, rail or wall] of the C D cemetery and graveyard, in said county. SODOMY, see CRIME AGAINST NATURE. STEAL, see LARCENY, ROBBERY and BURGLARY. SUBORDINATION OF PERJURY, see PERJURY. SUMMARY PROCEEDINGS, see MISDEMEANOR IN OFFICE. THREATENING LETTERS, see EXTORTION. THREATS, see EXTORTION. TIMBER, see TRESPASSING. TOMBS, see SEPULCHER, VIOLATION OF CHAPTER XLVIII. THROWING VITRIOIv. [Penal Code, sec. 244.] DEFINITION. It is the crime of wilfully and maliciously placing or throwing, or causing to be placed or thrown, upon the per- son of another, any caustic chemical, with intent to injure the flesh or disfigure the body of such person. An assault is a necessary element of and included in the offense. 1 PENALTY. Imprisonment in state prison from one to fourteen years. FORM. Wilfully, maliciously, unlawfully and feloniously did place, put, pour and throw upon the head, face and person of one C D, a certain caustic chemical, corrosive acid and burning substance commonly known and called vitriol [or other substance, describe by name] with intent then and there to injure the flesh and disfigure the body of the said C D. 2 NOTE. For form of indictment against one who is charged with aiding and abetting this crime, and is not charged in general terms as principal, but as an accessory, see People v. Rozelle, 78 Cal. 84. This procedure, how- over, is unnecessary, it being sufficient to charge the one aiding and abetting as a principal. 1 People v. Stanton, 106 Cal. 139. 2 People v. Rozelle, 78 Cal. 86. CHAPTER XLIX. TRAIN WRBCKINO. [Penal Code, sec. 218.] DEFINED. It is the unlawful throwing out of a switch, removing a rail, or placing any obstruction on a railroad, with the intention to derail a train; or the unlawful boarding of a passenger train with the intention of*robbing the same ; or the unlawful placing of explosive material, or other obstruc- tion on the track of a railroad with intention of blowing, up or derailing a train ; or unlawfully setting fire to any railroad bridge or trestle over which any train must pass, with intention of wrecking said train. , It was not intended to punish train robbery as such but to prevent train wreck- ing. Robbery is punished only as an incident to the train wrecking. The phrase " robbing a train " means the tak- ing from persons having charge of the train, by violence and intimidation, the control and management thereof, with intent to take from it or from some person thereon some- thing of value. 1 Train wrecking must be such a destruc- tion of a train as will endanger human life ; and the crime is not committed by one who boards an express car and, with force and violence, robs a messenger of money in his custody. 2 An information charging the defendant with throwing out a switch with intent to derail a passenger train and with boarding a passenger train with intent to rob the same, does not charge two offenses. 3 1 People v. Lovren, 119 Cal. 88; People v. Thompson, 115 Cal. 160. 2 People v. Thompson, 115 Cal. 160. a People v. Thompson, 111 Cal. 242. TRAIN WRECKING. 277 PENALTY. Punishable with death or imprisonment in state prison for life, at the option of the jury trying the case. FORM TRAIN WRECKING. Wilfully, unlawfully and feloniously did throw out a switch at - , a station on the railroad known as the railroad, with intent then and there to derail a pas- senger train ; and then and there wilfully, unlawfully and feloniously did board a passenger train on said railroad, at said, station, with intent then and there to rob said passen- ger train. 4 * People v. Thompson, 111 Cal. 242. CHAPTER L. ' TRESPASSING. [Penal Code, sec. 602.] DEFINED. Is the cutting down, destroying or injuring wood or timber on the land of another; or maliciously injuring or severing from the freehold anything attached thereto; or digging, taking or carrying away any earth, soil or stone .from a lot or street in an incorporated town or city ; or putting up printing or painting on the property of another, any advertisement, picture or sign; or entering upon lands whereon oysters or other shell fish are planted or growing ; or removing or destroying any stakes, marks, fences or signs intended to designate the boundaries of such land. 1 It is larceny to convert real estate into personal property and steal the same. 2 PENALTY. Imprisonment in county jail not exceeding six months, or fine not exceeding five hundred dollars, or both. FORM INJURING TIMBER. Then and there wilfully and unlawfully did cut down and injure certain trees, wood and timber standing and growing upon the lands of one A B. FORM SEVERING FROM FREEHOLD. Wilfully, unlawfully and maliciously did sever from [describe land] the same being then and there the freehold of one A B, [describe what was severed] the same being then and there the produce of the freehold aforesaid, and then and there attached thereto. UNLAWFUL ASSEMBLY, see DISTURBANCE OF THE PEACE. 1 Penal Code 602. 2 Statutes, 1871, 1872, pp. 282 and 435. CHAPTER LI. VAORANCY. [Penal Code, sec. 647.] DEFINED. Every person (except a California Indian) without visi- ble means of living who has the physical ability to work, and who does not seek employment, nor labor when employ- ment is offered him ; or, every healthy beggar who solicits alms as a business ; or, every person who roams about from place to place without any lawful business ; or, every person known to be a pickpocket, thief, burglar or confi- dence operator, either by his own confession, or by his hav- ing been convicted of either of said offenses, and having no visible or lawful means' of support, when found loitering around any steamboat landing, railroad depot, banking institution, broker's office, place of public amusement, auc- tion room, store, shop, or crowded thoroughfare, car or omnibus, or at any public gathering or assembly; or, every idle or dissolute person, or associate of known thieves, who wanders about the streets at late or unusual hours of the night ; or, every person who lodges in any barn, shed, shop, outhouse, vessel, or place other than such as is kept for lodging purposes, without the permission of the owner or party entitled to the possession thereof; or, every lewd or dissolute person who lives in and about houses of ill fame; or, every person who acts as a runner or capper for attorneys in and about police courts or city prisons, in incor- porated cities, or cities and counties ; or, every common prostitute and common drunkard is a vagrant. The statute makes i; an offense for a healthy beggar to solicit 280 CRIMINAL LAW AND PROCEDURE. alms as a business. For one to ask assistance on one occasion does not make him a vagrant. 1 PENALTY. Imprisonment in county jail not exceeding six months. FORM REFUSING TO LABOR. Wilfully and unlawfully did fail, neglect and refuse to seek employment, and did not labor when employment was offered to him, and was then and there without visible means of living, having at all times aforesaid the physical ability to work, he, the said C D, not being a California Indian. FORM HEALTHY BEGGAR. Was then and there a healthy beggar, and did then and there wilfully and unlawfully solicit alms as a business. FORM ROAMING ABOUT. Wilfully and unlawfully did roam about from place to place without any lawful business. FORM KNOWN CRIMINAL. Was then and there a person known to be a pickpocket, thief, burglar and confidence operator by his own confes- sion, and by having been convicted of , and having then and there no visible or lawful means of support, and was then and there wilfully and unlawfully loitering about a certain steamboat landing [or railroad depot, banking institution, broker's office, place of public amusement, auc- tion room, store, shop, or crowded thoroughfare, car or omnibus or any public gathering or assembly as the case may be.] FORM ASSOCIATE 1 OF KNOWN THIEVES. Was then and there an idle and dissolute person, an associate of known thieves, and did then and there wilfully and unlawfully wander about the streets of at late and unusual hours of the night. i People v. Denby, 108 Cal. 57. VAGRANCY. 281 FORM LODGERS IN OUTHOUSES. Did then and there wilfully and unlawfully lodge in a certain barn, shed, shop, outhouse and place other than" such as is kept for lodging purposes, without the permission of A B, the owner and party entitled to the possession thereof. FORM LIVING IN HOUSE OF ILL FAME. Was then and there a lewd and dissolute person living in and about houses of ill fame. FORM CAPPERS FOR ATTORNEYS. Wilfully and unlawfully did act as a runner and capper for attorneys in and about the police court and the city prison of the incorporated city of . FORM PROSTITUTES AND DRUNKARDS. Was then and there a common prostitute [or a common drunkard.] VOLUNTARY MANSLAUGHTER, see HOMICIDE. WATER, see FRAUDULENTLY TAKING FROM MAIN. WEAPON, DEADLY, see ASSAULTS, see DISTURBANCE OF PEACE. WOMEN, see SEDUCTION, ABORTION, RAPE. CHAPTER LII. MODKS OF FROSKCLJTING CRIME. In this state there are two modes for the prosecution of crime : ( I ) by information, after examination and . com- mitment by a magistrate, and (2) by indictment, with or without such examination and commitment. 1 Prosecution by information takes from the accused no immunity nor protection to which he is entitled under the law. 2 The two modes of prosecution, by indictment and information, are concurrent/' A preliminary examination and commit- ment by a magistrate is required before an information can be filed, and an examination by a grand jury before an in- dictment, not so much to protect the liberties of the citizen as to protect him from being prosecuted on slight evidence or mere suspicion, or at the instigation of malice. 4 These two methods of procedure will be considered in their order, and the procedure by information will be first discussed. BY INFORMATION. PREU M I X AKV KXA.M I XAT1OX. A preliminary examination may be compelled by man- damus when a person has been regularly charged with an offense, arrested and brought before a magistrate. 5 While two or more defendants have the right to separate trials, when jointly indicted, they have no such right to separate 1 Article 1, Section 8, Constitution of California. 2 Kalloch v. Superior Court, 56 Cal. 299; Hurtado v. Cal- ifornia, 110 U. S. 516. s People v. Ebanks, 120 Cal. 626. 4 People v. Beach, 122 Cal. 37. People v. Barnes, 66 Cal. 594; Ex parte Dimmig 74 Cal. 164. PROSECUTING BY INFORMATION. preliminary examinations. This is within the discretion of the district attorney. 7 A waiver of examination should not be allowed in felony cases. 8 Proceedings by informa- tion do not authorize a waiver of examination, but a waiver of examination does not bar a subsequent examina- tion. 10 The making of a written confession by the defend- ant before the magistrate is a sufficient examination for the purpose of holding him. 11 It is the duty of the court to appoint a shorthand reporter to take the testimony in homicide cases, and upon the demand of the prosecuting attorney, or the defendant or his council, in all other cases. 12 The law only requires that the person appointed be competent to do the work, and an objection to the com- petency of the reporter is waived by not being made at the time of the examination. 13 A complaint, made on informa- tion and belief before a magistrate, is of little value, 14 and will not support a warrant of arrest. 15 The complaint may be sworn to before another court or magistrate than the one before whom the examination is held. 16 The clerk of a police court may administer the oath. 17 And where the affidavit is taken before a deputy clerk he need not sign his principal's name to the jurat. 18 The complaint must state facts sufficient to constitute a public offense. 19 Where the evidence shows that a crime has been committed, and there is probable ground for belief that the defendant committed c People v. Burns, 121 Cal. 529. " People v. Piyler, 121 Cal. 160. s Ex parte Walsh, 39 Cal. 705. a Kalloch v. Superior Court, 56 Cal. 234. i" Ex parte Walsh, 39 Cal. 705. 11 People v. Cokahnour, 120 Cal. 253. i-' Penal Code 869. i" People v. Mclntyre, 127 Cal. 423. i-i People v. Smith, 1 Cal. 9. i--> Ex parte Dimmig, 74 Cal. 164; Ex parte Spears, 88 Cal. 642; People v. Staples, 91 Cal. 25. IB People v. Le Roy, 65 Cal. 613. IT People v. Burns, 121 Cal. 529; In re Mitchell, 120 Cal. 384; People v. Vasalo, 120 Cal. 168. is People v. Wheatley, 88 Cal. 114. i!' People v. Howard, 111 Cal. 655; People v. Beach, 122 Cal. 38. 284 CRIMINAL LAW AND PROCEDURE. the crime, it is sufficient cause to hold him. 20 The defend- ant complained of by fictitious name may be held to answer and informed against under his true name. 21 The defend- ant has the right to counsel at all stages of the proceedings, and a lawyer accused of crime is entitled to counsel as well as a layman. 22 The court must grant the defendant a reasonable time to procure counsel. " a ORDER OF COMMITMENT. The order of commitment must be in writing, 23 but it may be entered in the docket or endorsed om the complaint or on the depositions taken at the examination. 24 An oral order reduced to writing by the reporter and not signed by the justice is insufficient. 25 The order is sufficient if in the language of the statute. 28 If the magistrate is not com- pelled to rely on his recollection for the facts, but has any order or judgment or entry made at the conclusion of the examination to which reference can be had to guide him, an amended commitment may be issued. 27 And where the information is set aside for a failure of the magistrate to endorse the commitment, it may be sent back to the magis- trate who may commit without another examination, 28 but where the information is set aside for an illegal commit- ment, no other may be filed without an examination. 28 Any 20 Ex parte Becker, 86 Cal. 492; Ex parte Walpole, 85 Cal. 362. 21 People v. Wheeler, 73 Cal. 252. 22 People v. Napthaly, 105 Cal. 641. 22a People v. Flannelly, 128 Cal. 83. 23 People v. Wilson, 93 Cal. 379; People v. Wallace, 94 Cal. 499; Ex parte Branigan, 19 Cal. 133. 2* People v. Wilson, 93 Cal. 377; People v. Tarbox, 115 Cal. 61; People v. Wallace, 94 Cal. 499; People v. Hard- isson, 61 Cal. 378; People v. Dolan, 96 Cal. 317; People v. Sehorn, 116 Cal. 507; People v. Napthaly, 105 Cal. People v. Young, 64 Cal. 312; People v. Smith, 59 Cal. 365; People v. Hope, 62 Cal. 293. People v. Wilson, 93 Cal. 377. 20 People v. McCurdy, 68 Cal. 576. 2? Ex parte Branigan, 19 Cal. 133; People v. Keil, 85 Cal. 310; Ex parte Estrado, 88 Cal. 318. 28 People v. Lane, 101 Cal. 513; People v. Thompson, 84 Cal. 598. 20 People v. Napthaly, 105 Cal. 644; Ex parte Baker, 88 Cal. 84. PROSECUTING BY INFORMATION. 285 defect in the commitment is not fatal, if the order for the commitment, otherwise full and complete, merely omits the name of the person murdered. 30 And a commitment regu- lar on its face with an information based thereon gives the court jurisdiction. 31 The order of commitment is opera- tive when made and signed, 32 and a warrant of commitment will be presumed to have been based on a proper order therefor. 33 The information need not contain any allega- tion with reference to the examination before the magis- trate, 34 and the failure of the magistrate to return the papers after the examination, 35 or of the reporter to file a transcription of his notes, does not prevent the filing of the information. 38 Where the information is filed the same day as the order committing the defendant, the court will presume the information was filed subsequent to the order of the commitment. 37 Where the defendant is acquitted for a variance the court may order a new information when the necessity of it becomes apparent. 38 A new information cannot be filed, however, on an order sustaining a demur- rer with leave to file a new one. Leave to file is not the same as an order to file. 39 Where the jury is discharged because the facts charged do not constitute an offense, a new information can be filed without an order of court. 40 THE COMMITMENT. The term " legally committed " means only that the accused has been committed by a magistrate who had juris- diction to hold and examine him, who actually heard evi- dence and determined the cause, and held the defendant to answer. 41 Any defect in the examination, not affecting 30 Ex parte Walpole, 85 Cal. 362. 31 People v. Bawden, 90 Cal. 195. 32 People v. Tarbox, 115 Cal. 57. 33 People v. McCurdy, 68 Cal. 576. 3* People v. Shurbrick, 57 Cal. 565. 35 People v. Wickham, 113 Cal. 283. SG People v. Rilley, 65 Cal. 107. 37 People v. McCurdy, 68 Cal. 576. 38 Ex parte Nicholas, 91 Cal. 640. 39 Ex parte Williams, 116 Cal. 512. 40 People v. Ammerman, 118 Cal. 23. 41 People v. Sehorn, 116 Cal. 507; People v. Beach, 122 Cal. 37; Ex parte Baker, 88 Cal. 84; People v. Moore, 68 Cal. 500; People v. Howard, 111 Cal. 655. 286 CRIMINAL LAW AND PROCEDURE. the substantial rights of the accused, will not be grounds for avoiding a verdict of conviction. 42 The irregularity must be one of substance. 43 Thus the failure to endorse " filed " on the complaint does not cause the justice to lose jurisdiction, 44 nor commencing the examination beyond six days. 45 The legality of the commitment is presumed. 4 * An immaterial misnomer does not render the commitment illegal. 47 The justice of the peace has jurisdiction only in his own court, and cannot try or hold an examination in another forum. 48 Magistrates in conducting examinations are not distinguished as to power or rank. 49 And they have jurisdiction in examining persons charged with offenses within their own county, notwithstanding the warrant was issued by another magistrate. 00 A justice issuing a war- rant may call in another to conduct the examination, 81 and he need not set forth his reasons therefor. 52 A superior judge, acting as a magistrate, has only the same power as a justice of the peace. 53 The preliminary examination is not affected by a justice holding over on a failure to elect his successor. 54 Disqualification of a magistrate must be shown by affidavits. 58 An order admitting to bail is not essential to the commitment, 56 and the complaint alone is a sufficient deposition to sustain the warrant of arrest.* 7 42 People v. Van Horn, 119 Cal. 323. 43 People v. Sehorn, 116 Cal. 503. <4 People v. Hiltel, 131 Cal. 577. 45 People v. Van Horn, 119 Cal. 323. 46 People v. Beach, 122 Cal. 37. 47 People v. George, 121 Cal. 492. 48 Ex parte Giambonini, 117 Cal. 573. This overruled the case of Ex parte Reilly, 85 Cal. 632, where it was held that the action of a justice of the peace is valid when within his jurisdiction, although done by him as a police judge. 4 People v. Crespi, 115 Cal. 50; People v. Cohen, 118 Cal. 78. BO People v. Branigan, 19 Cal. 133. si People v. Sansome, 98 Cal. 235. 52 People v. Sehorn, 116 Cal. 506. ss People v. Cohen, 118 Cal. 74. 54 People v. Chaves, 122 Cal. 134. 55 C. C. P., 170; Patterson v. Conlan, 123 Cal. 453; In re Jones, 103 Cal. 397; McCauley v. Weller 12 Cal 524 56 People v. Thompson, 84 Cal. 598. 57 People v. Staples, 91 Cal. 23. PROSECUTING BY INFORMATION. 287 The legality of a commitment can be raised only on motion to set aside the information. 58 It is waived if not so taken, and cannot be afterwards raised by demurrer, 59 and cannot be used as a ground for a new trial or on motion in arrest of judgment. 60 Where the testimony of the witness is taken down at the preliminary examination by a shorthand reporter, the reporter must certify to the transcript of the testimony that it is a 'correct statement of such testimony, and it must be so authenticated that an inspection of it will show that it is the testimony taken at the preliminary examination of the accused. It must not depend in any respect on the memory of the magistrate or the reporter, and no oral proof can be allowed at the trial for the pur- pose of showing against what defendant, or upon what -charge, or at what time, the testimony was taken. A cer- tificate that the testimony is a true copy of the testimony instead of a correct statement thereof is not sufficient. 61 THE INFORMATION. The procedure by information is a separate mode and is not affected by the fact that the grand jury was in ses- sion when it was filed. 02 An examination and commit- ment by a magistrate is absolutely essential before the filing of the information ; 63 but an examination and commitment by a magistrate is not a prerequisite to an indictment. 84 The accused must be informed against for the crime embraced and stated in the complaint and commitment. The district attorney is not authorized to go outside of this and cull from the evidence taken at the preliminary exam- ination any offense not included therein. 65 The complaint ss Ex parte Moan, 65 Cal. 216; People v. McConnell, 82 Cal. 621; People v. Bawden, 90 Cal. 196. 59 People v. McConnell, 82 Cal. 621. eo People v. Bawden, 90 Cal. 196. 01 People v. Ward, 105 Cal. 652. 62 People v. Ebanks, 120 Cal. 626. 63 Kalloch v. Superior Court, 56 Cal. 229; People v. Mc- Curdy, 68 Cal. 579; People v. Cokahnour, 120 Cal. 254; People v. Wheeler, 65 Cal. 77; People v. Staples, 91 Cal. 26; People v. Howard, 111 Cal. 659. 64 People v. Goldenson, 76 Cal. 328. 65 People v. Christian, 101 Cal. 471. 288 CRIMINAL LAW AND PROCEDURE. must constitute the basis of the prosecution and, if insuffi- cient to charge a public offense, no information can be sus- tained. 66 SUGGESTIONS TO MAGISTRATES. In drawing complaints, either for felonies or misde- meanors, the justice of the peace should be careful to ascer- tain the name of the person against whom the offense was committed, and the true name of the defendant, and have them correctly stated in the complaint. If the name of the defendant be not known, he may be complained against under a fictitious name, with a statement that his true name is to the affiant unknown. The formal part of the com- plaint may be as follows : FORM OF COMPLAINT. " In the Justice's Court of - township, in the county of - , state of California, before , a justice of the peace in and for said township. so People v. Howard, 111 Cal. 655. It was first held in this state that the commitment might be for any offense proved by the testimony, irre- spective of the charge in the complaint. People v. Wheeler, 73 Cal. 352; People v. Staples, 91 Cal. 26 , or of the terms of the commitment; Ex parte Keil, 85 Cal. 309; Ex parte Nicholas, 91 Cal. 643, anu that no objections could be made to the complaint even where the offense described therein differed from the one in the commitment. People v. Smith, 1 Cal. 9; People v. Staples, 91 Cal. 23. And this irrespective of the endorsement by the magistrate of the crime for which he held defendant, but the court held that information must be confined to the charge in the commitment, where no depositions were returned People v. Lee Ah Chuck, 66 Cal. 662; People v. Vierra, 67 Cal. 234; People v. Giancoli, 74 Cal. 646; People v. Staples, 91 Cal. 27; People v. Parker, 91 Cal. 93; Ex parte Nicholas, 91 Cal. 443; People v. Wallace, 94 Cal. 501. It was held in People v. Parker that the information must be based on the offense stated in the commitment or on facts disclosed by the deposition. This was approved in Ex parte Nicholas, 91 Cal. 643, and People v. Wal- lace, 94 Cal. 501. And it was held in People v. Beam, 66 Cal. 394* that the commitment would not be set aside when the proceedings were regular, although it was not based on any charge for which the defendant was held to answer. But all these cases have been over- ruled and set aside by the cases of People v. Christian and People v. Howard, and the rule now is as stated in the text. FORM OF COMPLAINT. 289 The People of the state of California against . defendant. ' Personally appeared before me, this day of 190 , C D, who, being first duly sworn, complains and says, that at and in the county of , state of Califor- nia, on or about the - - day of , A. D. 190 , and before the filing of this complaint, one A B committed the crime of - - in this ; that the said A B at and in the county and state aforesaid, on or about the date aforesaid, did [here set out facts constituting the particular offense intended to be charged ;] and all of which is con- trary to the form of the statute in such cases made and provided, and against the peace and dignity of the people of the state of California. Said complainant therefore prays that a warrant may be issued for the arrest of said A B, and that he may be dealt with according to law. [Signed C D.] Subscribed and sworn to before me this day of , A. D 190 , E F, justice of the peace of township, county of , state of California." A form for the statement of the particular offense desired to be charged may be found under the head of " Specific Offenses," treated in this volume. Printed blank forms of complaint will be furnished by the district attorney. In the use of these blanks care should be exercised in charging the particular offense. WARRANT OF ARREST. If the magistrate is satisfied from his examination of the facts disclosed to him by the prosecutor and his witnesses that such facts tend to establish a public offense, 68 and there is reasonable ground to believe that the defendant has com- mitted it, he must issue a warrant of arrest. 69 The war- rant must be directed to a peace officer, 70 and must specify the name of the defendant, or if it is unknown to the magis- trate, the defendant may be designated therein by any name. It must also state the time of issuing and the es Penal Code 812. GO Penal Code 813. Penal Code 816. CRIMES IS 290 CRIMINAL LAW AND PROCEDURE. county, city or town where issued, and be signed by the magistrate with his name of office. 71 It should be in the name of the people, commanding the arrest of the defend- ant, and may be substantially in the following form: " County of . " The People of the state of California to any sheriff, con- stable, marshal or policeman of said state, or of the county of . " Information on oath having been this day laid before me by A B, that the crime of - - [designating it] has been committed, and accusing C D thereof, you are there- fore commanded forthwith to arrest the above named C D and bring him before me at, [naming the place] or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county. " Dated at - , this day of - , nineteen hundred and . " Justice of the Peace County." THE ARREST. The next step is the arrest of the defendant. It is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer. 72 It may be made by a peace officer or a private person. 73 An officer, without a warrant, has authority to make an arrest of another when he has reasonable grounds to believe that such person has committed a felony. What will consti- tute probable cause for arrest is always a question of law, 74 but want of probable cause by an officer pursuing one whom be believes has committed a felony is a question of fact. 75 An arrest without a warrant may be made for a felony, though not committed in the presence of an officer, when the criminal is fleeing from the scene of the crime. 76 It is . 7i Penal Code 815. 72 Penal Code 835. 73 Penal Code 834. 74 People v. Kilvington, 104 Cal. 86. 75 People v. Melendrez, 129 Cal. 549. 76 People v. Pool, 27 Cal. 573. PROCEEDINGS BEFORE MAGISTRATES. 291 also the duty of a citizen to aid in the arrest and capture of felons. 77 The officer making the arrest has the right to use all the force which, from the surrounding circumstan- ces, seems to him, as a reasonable man, necessary. He has the right .-to arm himself and go armed, and where the offense charged is a felony, he has the right, if apparently necessary to him as a reasonable man, to kill the person whom he is seeking to arrest. He has a right, and it is his duty, to arrest one who has committed a felony, with or without a warrant ; 78 and where the officer, under such cir- cumstances, kills a person by a mistake, he cannot be guilty of any crime greater than manslaughter. 79 The officer need not disclose his official character or the cause for which he makes the arrest, whenever taking a felon fleeing from arrest. 80 PROCEEDINGS BEFORE MAGISTRATE. When the defendant is brought before the magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magis- trate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings. 808 - He must also allow the defendant a reasonable time to send for counsel, and postpone the examination for that purpose ; 81 and must, upon the request of the defendant, require a peace officer to take a message to any counsel in the township or city the defendant may name. The officer must, without delay and without fee, perform that duty. 82 The right to have the assistance of counsel is a constitutional one. 83 If the defendant requires the aid of counsel, the magistrate must, immediately after the appearance of counsel, or if, after waiting a reasonable " People v. Raten, .63 Cal. 424. 78 People v. Adams, 85 Cal. 235. People v. Melendrez, 129 Cal. 549; People v. Kilving- ton, 104 Cal. 86. so People v. Pool, 27 Cal. 573. soa Penal Code 858. si People v. Flannelly, 128 Cal. 83. 82 Penal Code 859. ss Art. 1, sec. 13, Constitution. 2i)2 CRIMINAL LAW AND PROCEDURE. time therefor, none appears, proceed to examine the case. 8 * The examination must be completed at one session, unless the magistrate, for good cause shown by affidavit, postpone it. The postponement cannot be for more than two days at each time, nor more than six days in all, .unless by consent or on motion of the defendant, 85 and this should appear by entry in the docket. By " session " is meant the time during which the court is in fact holding court at the place appointed and engaged in business. 80 Adjournments from day to day, or from time to time, are to be construed as recesses in the sessions. 87 Recess is the time in which the court is not actually engaged in business. 88 If a post- ponement is had, the magistrate must commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money instead of bail 89 as security for his appearance at the time to which the exam- ination is postponed. 90 The commitment for examination is made by an endorsement, signed by the magistrate on the warrant of arrest, to the following effect : " The within named A B having been brought before me under this warrant, is committed for examination to the sheriff of ." If the sheriff is not present, the defendant may be committed to the custody of a peace officer. 91 At the examination, the magistrate must first read to the defendant the depositions of the witnesses examined on tak- ing the information ; he must also issue subpoenas, sub- scribed by him, for witnesses within the state, required either by the prosecution or the defense. 92 The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf. 93 When the exam- w Penal Code 860. ss Penal Code 861. SB in re Gannon, 69 Cal. 545; Falltrick v. Sullivan, 119 Cal. 617. ST Code of Civil Procedure 74. ss In re Gannon, 69 Cal. 545; Falltrick v. Sullivan, 119 Cal. 617. 8 Penal Code 1295-7. o Penal Code 862. 01 Penal Code 863. 2 Penal Code 864. 3 Penal Code 865. PROCEEDINGS BEFORE MAGISTRATFS. 293 ination of witnesses on the part o the people is closed, any witnesses that defendant may produce must be sworn and examined. 94 While a witness is under examination the magistrate may exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate, and to be prevented from conversing with each other until they are all examined. 95 The magistrate must also, upon the request of the defendant, exclude from the examination every person except his clerk, the prosecutor and his counsel, the attorney-general, the district attorney of the county, the defendant and his counsel, and the offi- cer having the defendant in custody. 96 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 endorsement on the depositions and statement, signed by him, to the fol- lowing effect: "There being no sufficient cause to believe the within named A B guilty of the offense within men- tioned, I order him to be discharged." 97 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 endorse on the deposition an order, signed by him, to the following effect: "It appearing to me that the offense, in the within deposition mentioned 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 "os if t j ie O ff ense j s no t bailable, the following words must be added to the endorsement: "And he is hereby committed to the sheriff of the county of ."" 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 dol- 94 Penal Code 866, 5 Penal Code 867. se Penal Code 868. 97 Penal Code 871. as Penal Code 872, -99 penal Code 873. 294 CRIMINAL LAW' AND PROCEDURE. lars, and is committed to the sheriff of the county of - until he gives such bail." 100 If the magistrate order the defendant to be committed he must make out a com- mitment, 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. 101 The commit- ment must be to the following effect: "County of - [as the case may be] ; The people of the state of Califor- nia 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 day of - , nineteen ," 102 The form of the commitment just given is taken from the code. The magistrate should remember that 'the order of commitment must always be made; that it must be in writing and endorsed upon the complaint, or the depositions taken at the examination, or be entered in the docket and signed by him. All these acts are absolutely necessary to a legal commitment. Care should be taken that in the commitment a sufficient description of the crime charged against the defendant should be given. It is always advisable to make the endorsement of the order of commitment on the back of the complaint, as it will then appear that the defendant is held for the crime charged therein. Under the decisions of the Supreme Court he can be held for no other. If the order is not endorsed on the complaint, but upon the depositions taken at the exam- ination or entered in the docket, it is always safer in making the order to describe the offense in the language of the complaint. By adopting such course all difficulty 100 Penal Code 875. 101 Penal Code 876. 102 Penal Code 877. PROSECUTING BY INDICTMENT. 295 and doubt as to the sufficiency of the order are removed. In describing the crime in the commitment, which is signed and delivered to the officer, the justice should use care in stating the nature of the offense and the time and place where committed. While it is not absolutely necessary to copy the language of the complaint, charging the crime, yet such practice is commendable, for the commitment then shows all the necessary facts. If stated briefly, there is always a possibility of omitting some important matter., Most of the defects in commitments and orders of com- mitment are due to an insufficient description of the offense for which the defendant is held. At the close of an exam- ination the magistrate should immediately forward to the county clerk the complaint, with the order of commitment endorsed thereon, the warrant of arrest, subpoenas and any exhibits which may have been filed in the case. No transcript of the docket is necessary. The transcript in reported cases will always be furnished by the reporter to be certified, and no other transcript is required. The magistrate should also make a commitment which he should deliver to the constable or sheriff to be left with the prisoner at the county jail. If bail is given, the bail bond must be forwarded to the county clerk. BY INDICTMENT. GRAND JURY. The second mode of prosecution is by an indictment by the grand jury, after an examination before it. An indict- ment is an accusation by the oath of twelve men of the same county wherein the offense was committed, known as the grand jury, returned to inquire of all the offenses in general in the county, and finding a bill brought before them to be true. The grand jury has no authority to pres- ent indictments for misdemeanors and a person arrested under such an indictment will be discharged on habeas corpus. 1 Its jurisdiction to investigate crimes and find i In re Grosbois, 109 Cal. 445. 296 CRIMINAL LAW AND PROCEDURE. indictments is not affected by an order of the court direct- ing the district attorney to file an information after a demurrer has been sustained. 2 Every presumption is in favor oi the regularity of its proceeding. 3 The absence ofi an order of record appointing a foreman will not invali- date an indictment, where it is endorsed by a foreman and returned to the court. 4 And the examination and dismissal of a bill by a grand jury is not a bar to subsequent pro- ceeding. 5 Nor can the submission of the matter to another grand jury affect the right of the people to appeal, nor does the dismissal by the grand jury prevent the district attorney from filing an information. 7 A defendant may voluntarily testify before the grand jury, 8 and neither the foreman nor any member of the grand jury is required to inform him of his right to counsel before testifying. A grand jury ought to find an indictment when all the evidence before them taken together is such as in their judgment would, if unexplained or uncontradicted, war- rant a conviction by a trial jury, and if such evidence unexplained or uncontradicted would not warrant such a conviction, they ought not to find an indictment. 10 The obligation to secrecy is not violated by a grand juror tes- tifying as to what witnesses testified to before the jury; 11 nor by disclosing the names of witnesses examined before it, which may be required on motion to set aside an indict- ment. 12 But he cannot be required to disclose how he voted upon the finding of the indictment. 13 A grand jury is composed of nineteen men, but the concurrence of twelve -' People v. Whelan, 117 Cal. 559. : ' People v. Mills, 17 Cal. 276. * People v. Roberts, 6 Cal. 214. 5 Ex, parte Clarke, 54 Cal. 412; Kalloch v. Superior Court, 56 Cal. 236; Ex parte Moan, 65 Cal. 219. People v. Lee, 107 Cal. 477. T Ex parte Moan, 65 Cal. 216. s People v. King, 28 Cal. 273. People v. Page, 116 Cal. 392. 10 People v. Tinder, 19 Cal. 539. 11 People v. Northey, 77 Cal. 618; People v. Youn~, 31 Cal. 564. 12 Ex parte Schmidt, 71 Cal. 212. 13 Ex parte Sontag, 64 Cal. 525. PROSECUTING BY INDICTMENT. 297 in finding an indictment is sufficient. 1 * They are selected in the same manner as petit jurors. ir> The judge may excuse any member of the grand jury without requiring him to appear and make excuses under oath in open court. 16 It is to exist until it is discharged by the court, where it is not impaneled for a particular time. 17 The fact that grand jurors wej-e in court when another person was on trial for the same offense and heard the defendant plead his privilege as a witness, is not a disqualification, if it had no effect upon them. 18 Neither does an opinion as to the guilt of the defendant, formed upon testimony taken before them, 19 nor knowledge of the corpus delicti dis- qualify. 20 And where they are prejudiced against a par- ticular defendant, the court may direct a special grand jury to pass on that case. 21 Testimony of a grand juror that he is a naturalized citizen is prima facie evidence of citizenship. 22 Neither the disqualification of members of the grand jury, 23 nor the irregularity of the impanelment can be taken advantage of on motion to set aside the indict- ment. 24 A grand jury may be summoned by a special order of court after the defendant is in custody charged with murder. 25 An additional grand jury may be summoned where the regular venire is exhausted, 26 and where a surfi- i-* People v. Hunter. 54 Cal. 65; People v. Gray, 61 Cal. 165; People 1 v. Simmons, 119 Cal. 3; People v. Gate- wood, 20 Cal. 147; People v. Butler, 8 Cal. 436; People v. Roberts, 6 Cal. 214. if' Peop'e v. Crowey, 56 Cal. 36. ie People v. Hidden, 32 Cal. 445; People v. Millsaps, 35 Cal. 48. i 7 In re Gannon, 69 Cal. 541; People v.' Leonard, 106 Cal. 302. is People v. Northey, 77 Cal. 618. i People v. Northey, 77 Cal. 618. 20 People v. Breen, 130 Cal. 73. 21 People v. Manahan, 32 Cal. 68; People v. Southwell, 46 Cal. 153. 22 People v. Freeland, 6 Cal. 96; People v. Roberts, 6 Cal. 215. -* People v. Simmons, 119 Cal. 1. 24 People v. Goldenson, 76 Cal. 328; Bruner v. Superior Court, 92 Cal. 262. 25 People v. Cuintano, 15 Cal. 328; People v. Beatty, 14 Cal. 567; People v. Rodriguez, 10 Cal. 51; People v. Moice, 15 Cal. 331. ''<. People v. Leonard, 106 Cal. 302; People v. Sehorn, 116 Cal. 509. 298 CRIMINAL LAW AND PROCEDURE. cient number of jurors fail to appear the court may sum- mon a special grand jury. 27 A grand jury summoned by an improper officer is invalid and an illegal body,- 8 and an indictment found by them is invalid.- 1 ' The court may appoint an elisor to summon the jury only where the sheriff and coroner are both disqualified. 30 CHALLENGE TO THE GRAND JURY. If the defendant is in custody, 31 or has been held for trial, 32 or has had an opportunity to object before indict- ment, 33 he must make his challenge when the jury is impan- eled, or his right is waived. But if he has not been so held, or is not in custody when the jury is impaneled, he must exercise his right to challenge on arraignment. 34 A challenge to a grand jury after its discharge cannot be allowed; but if indicted and the jury has been discharged before the defendant has had an opportunity to challenge, he may have the indictment set aside upon any ground which would have been good ground for challenge, either to the panel or to individual jurors. 35 An irregularly impaneled grand jury may properly find an indictment, 36 but a body summoned as a petit jury cannot organize as a grand jury. 37 The competency of a de facto grand jury 27 People v. M'Donnell, 47 Cal. 134; Levy v. Wilson, 69 Cal. 111. as Bruner v. Superior Court, 92 Cal. 239; People v. Leon- ard, 106 Cal 319. 29 People v. Thurston, 5 Cal. 69; Levy v. Wilson, 69 Cal. 108. 3 Bruner v. Superior Court, 92 Cal. 239; People v. Fel- lows, 122. Cal. 237. si People v. Henderson, 28 Cal. 466; People v. Gieger, 49 Cal. 643; People v. Travers, 88 Cal. 236. 32 People v. Arnold, 15 Cal. 476; People v. Colraere, 23 Cal. 632; People v. Henderson, 28 Cal. 466; People v. Phelan, 123 Cal. 551. 33 People v. Hidden, 32 Cal. 445; People v. Stacey, 3* Cal. 308. 3* People v. Beatty, 14 Cal. 567; People v. Moice, 15 Cal. 331; People v. Arnold, 15 Cal. 479; People v. Colmere, 23 Cal. 632; People v. Travers, 88 Cal. 236; People v. Turner, 39 Cal. 370. SB People v. Travers, 88 Cal. 233. ' People v. Southwell, 46 Cal. 145; People v. Gray, 61 Cal. 165. 37 People v. Earnest, 45 Cal. 29; In re Gannon, 69 Cal. 347. PROSECUTING BY INDICTMENT. 299 to act cannot be questioned by a witness in contempt for refusing to answer questions asked him by such jury. 38 Where the challenge is sustained as to some of the jurors, the remainder, if sufficient in number, is the jury. 39 A challenge to the panel is restricted to three grounds, viz : (i) That the requisite number of ballots was not drawn from the jury box of the county; (2) That the notice of the drawing was not given, and (3) That the draw- ing was not had in the presence of the officers designated by law. 40 A challenge to an individual grand juror may be interposed for one or more of the following causes only: (i) 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 undertaking as such, and (6) That state of mind existing on his part, which is known in the code as actual bias. 41 38 Ex parte Haymond, 91 Cal. 545. ss People v. Colby, 54 Cal. 37; People v. Gray, 61 Cal. 165. 40 Penal Code 895; People v. Southwell, 46 Cal. 154; Bruner v. Superior Court, 92 Cal. 253. 41 Penal Code 896. CHAPTER LIU. TUB TESTED BY CODE. All the forms of pleading and the rules by which their sufficiency is to be determined, are those prescribed, not by the common law, but by the code. 1 INDJCTMENT AND INFORMATION. The first pleading on the part of the people is the indict- ment or information. 2 It must contain the title of the action, specifying the name of the court to which the same is presented, the names of the parties and a statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended. 3 VENUE. The indictment or information must show the com- mission of the crime within the jurisdiction of the trial court. 4 It must show that the crime was committed in the county and all of the facts necessary to establish venue; 6 thus for an offense committed on a vessel on the inland waters of the state, the indictment should set forth all the facts, giving the extraterritorial jurisdiction, or evidence 1 Penal Code 948; People v. Dick, 37 Cal. 277; People v. Lopez,. 90 Cal. 569; People v. Cronin, 34 Cal. 191; Peo- ple v. Ah Woo, 28 Cal. 206; People v. Murphy, 39 Cal. 52. 2 Penal Code 949. s Penal Code 950, 959. * People v. Wong Wang, 92 Cal. 277; People v. Baker, 100 Cal. 188; People v. Craig, 59 Cal. 370. ^ People v. OTSTeil, 48 Cal. 257. INDICTMENT AND INFORMATION. 301 thereof will not be admitted, 6 but when the crime is alleged to have been committed on a car in a certain county the jurisdiction is sufficiently shown and a conviction will be sustained in the absence of evidence, regardless of the fact that jurisdiction would be in any county through which the car passed in the course of its trip. 7 And to give the court jurisdiction of the crime of burglary, rob- bery, larceny or embezzlement committed in another county, it must be alleged that the property has been brought into the county where the indictment is found. 8 It is sufficient if the indictment lays the venue within the jurisdiction of the court. 9 DESIGNATION OF THE OFFENSE. A wrong designation of the offense in the indictment or information is not material where the facts constituting the offense are fully stated. 10 Where the name given to the crime is not in accordance with the facts charged, it is a mere irregularity. 11 To designate the offense as a felony in the indictment is sufficient description of the crime. 12 It is not necessary to designate it as a felony or misdemeanor, when the facts and the name of the crime are alleged. 13 But in burglary, alleging that the defendant intended to commit a felony, without stating the particular felony, is bad. 1 * While the offense intended to be committed must be desig- nated, it need not be designated other than by name. 15 It 6 Penal Code 783; People v. Dougherty, 7 Cal. 396. ? Penal Code 783; People v. Moore, 103 Cal. 510. s People v. Scott, 74 Cal. 94; People v. Jockinsky, 106 Cal. 641. 9 People v. Lafuente, 6 Cal. 202. 10 People v. Fine, 77 Cal. 147; People v. Phipps, 39 Cal. 326; People v. Cuddihi, 54 Cal. 54; People v. Dalton, 58 Cal. 228; People v. Sheldon, 68 Cal. 436; People v. Eppinger, 105 Cal. 36. 11 People v. Cuddihi, 54 Cal. 53; People v. Phipps, 39 Cal. 326. 12 People v. Beatty, 14 Cal. 566. is People v. War, 20 Cal. 117; People v. Dalton, 58 Cal. 228. i* People v. Nelson, 58 Cal. 104; People T. Smith, 86 Cal. 238. is People v. Burns, 63 Cal. 614. 802 CRIMINAL LAW AND PROCEDURE. need not allege the facts constituting the crime, but only allege it in general terms. 16 NAME OF ACCUSED. The purpose of alleging his name is to identify him 'and there is no difference between a Christian and a surname in this respect. 17 It is the accused person himself, and not the accused person by any particular name, who is to be presented by the indictment. If indicted under a wrong name, the true name when discovered should be entered on the minutes and the accused tried as if indicted there- under. 18 Designating the defendant by a wrong name is not ground to set aside the information. 19 But where there is a material variance between the name in the indict- ment and the judgment of conviction, the judgment must be reversed. 20 It is otherwise if the variance is imma- terial. 21 A variance in the middle name is not material. 22 The omission of "Jr.," 23 or of the middle name, 24 is an immaterial variance. 25 STATING THE OFFENSE. It is a general rule that an information or indictment is sufficient if it describes the offense in the language of the statute. But the rule is subject to the qualification, fundamental in the law of criminal procedure, that the accused must be apprised with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar 16 People v. Golds-worthy, 130 Cal. 600; People v. Nelson, 58 Cal. 107; People v. Burns, 63 Cal. 614; People v Smith, 86 Cal. 238. i? People v. Kelly, 6 Cal. 210; People v. Dick, 37 Cal. 280. is People v. Kelly, 6 Cal. 211; People v. Le Roy, 65 Cal. 613; People v. Jim Ti, 32 Cal. 60. i People v. Le Roy, 65 Cal. 613. 20 People v. Ah Cow, 17 Cal. 102. 21 People v. Boggs, 20 Cal. 432; People v. Ah Kim, 34 Cal. 190. 22 People v. Smith, 103 Cal. 563. 23 People v. Oliveria, 127 Cal. 376. 24 People v. Boggs, 20 Cal. 433. 28 People v. Ah Kim, 34 Cal. 181; People v. Hughes, 29 Cal. 262. INDICTMKNT AND INFORMATION. 303 to any subsequent prosecution for the same offense. 20 And this is true even where the statute creates a new offense. 26a The statute defines robbery to be the felonious taking of the personal property in the possession of another, but does not expressly provide, as in larceny, that it must be the personal property of another, yet, the ownership of the property in some person other than the accused must be alleged in the indictment. 27 And the crime of attempt- ing to suborn prejury, not being a generic term of any class of offenses, the information charging the offense in those terms and alleging merely that the defendant attempted to procure another person to swear falsely and commit perjury in a specified suit, is not sufficient. 28 An information charging that the defendant committed wilful perjury, is a mere conclusion of law. 29 So in bribery the specific facts constituting the statutory offense must be stated. It is only a conclusion of law to say that the defendant bribed another, 30 or that an act was done fraudulently. 31 And in prosecution for use of a shotgun of 26 People v. Tomlinson, 66 Cal. 344; People v. Johnson, 71 Cal. 391; People v. Mahlman, 82 Cal. 587; People v. Martin, 32 Cal. 91; People v. Burke, 34 Cal. 663; People v. Lewis, 61 Cal. 366; People v. Sheldon, 68 Cal. 436; People v. Giacemella, 71 Cal. 48; People v. Russell, 81 Cal. 618; People v. Forney, 81 Cal. 118; People v. Harrold, 84, Cal. 570; People v. King, 125 Cal. 369; People v. Colburn, 105 Cal. 648; People v. Patter- son, 102 Cal. 239; People v. Kaiser, 119 Cal. 457: Peo- ple v. McKenna, 81 Cal. 158; People v. Turner, 65 Cal. 540; People v. Frigerio, 107 Cal. 151; People v. Vallar- ino, 66 Cal. 229; People v. Rogers, 61 Cal. 209; People v. Keeley, 81 Cal. 212; People v. Markham, 64 Cal. 157; People v. Edson, 68 Cal. 549; People v. Ward, 110 Cal. 373; People v. O'Brien, 96 Cal. 171; People v. Burke, 34 Cal. 661; People v. Rangod, 112 Cal. 672; People v. Phipps, 39 Cal. 331; People v. White, 34 Cal. 183; Peo- ple v. Girr, 53 Cal. 629; People v. Marseiler, 70 Cal. 98; People v. Shuler, 28 Cal. 490; People v. Hunt, 120 Cal. 281; People v. Dalton, 58 Cal. 228; People v. Am- merman, 118 Cal. 26; People v. Savercool, 81 Cal. 651; People v. Maguire, 26 Cal. 635. 26a People v. Saviers, 14 Cal. 29. 27 People v. Ammerman, 118 Cal. 23. 28 People v. Thomas, 63 Cal. 482. 29 People v. Turner, 122 Cal. 679. so People v. Ward, 110 Cal. 369. si People v. McKenna, 81 Cal. 158. 304 CRIMINAL LAW AND PROCKDURE. larger calibre than a particular gauge, the purpose of its , use must be alleged, as it was the evident intention of the . legislature to prohibit the use of such guns only for the purpose of killing game or other animals. 32 Neither does the rule apply to cases where particular circumstances are ' necessary to constitute the complete offense, 33 as they must be alleged. 34 But where the indictment substantially fol- lows the statute and puts the defendant upon fair notice of the offense charged, of the time, place and circum- stances of its commission, it is sufficient. 35 The defendant is entitled to be apprised with reasonable certainty of the nature and particulars of the crime. 36 Malicious mischief in! the use of poisonous substances, charged in the language of the statute, need not allege the name thereof, nor that it would kill, nor that the act was done feloniously. 87 The word "feloniously" need not be used in an indictment or information when the facts constituting the offense are charged. 38 If the ultimate facts be alleged in the language of the statute the probative facts such as intent with which the assault is made, present ability, etc., need not be alleged. 39 But where the facts stated do not constitute an offense, the court has no jurisdiction to pronounce a valid sentence and the conviction is void. 40 Such defects are not cured by verdict. 41 It is essential to an indict- ment that there be a statement of the acts constituting the offense and the particular circumstances thereof, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what 32 EX parte Peterson, 119 Cal. 578. 33 People v. Ward, 110 Cal. 369. s* People v. Neil, 91 Cal. 465. SB People v. Dalton, 58 Cal. 228; People v. Garcia, 25 Cal. 531; People v. Thompson, 4 Cal. 239; People v. Burke, 34 Cal. 662; People v. English, 30 Cal. 216. so People v. Lee, 107 Cal. 477; People v. Ward, 110 Cal. 374. 37 People v. Keeley, 81 Cal. 210. ss people v. Parsons, 6 Cal. 487; People v. Oliveria, 7 Cal. 404. 8 People v. Savercool, 81 Cal. 650. *o Ex parte Kearney, 55 Cal. 212. People v. Weaver, 47 Cal. 106. i People v. Cuff, 122 Cal. 589. 2 People v. Henry, 77 Cal. 445; People v. Smith, 86 Cal. 240. INDICTMENT AND INFORMATION. 309 der, 93 and a conspiracy to commit election frauds. 94 The same offense, however, may be charged in different forms. 98 The indictment may charge, in two separate counts, lar- ceny and conversion by a bailee. 90 In burglary, ownership of the goods in different persons may be charged in sep- arate counts if it appears it was all the same act. 97 Desig- nating the offense by the wrong name in the information does not render it open to objection of stating two offenses, 98 and two offenses are not charged where the second count refers to the first in such a manner as to show it is the same, 90 but it must show clearly on the face that it is the same offense. 1 An indictment charging as a single fact an attempt to commit two or more offenses is not bad for duplicity, 2 thus burglary may be charged by alleging an attempt to commit two felonies. 3 But in an indictment for forgery two offenses are charged, where both counts contain a copy of the instrument and are alike, without an allegation in the second count that they are the same.* A joinder of counts is permitted only where there is a joinder of offenses. An information which really contains two counts should charge the defendant in the second count as if he had committed a distinct offense. 5 NEGATIVE QUALIFICATION: A bare negative qualification need not be alleged; it is a matter of defense at the trial. 6 As in an assault with a deadly weapon with intent to inflict a bodily injury, it need not allege the offense to have been committed without a 93 People v. Beam, 66 Cal. 394. fi People v. Eagan, 116 Cal. 287. as People v. Connor, 17 Cal. 354. as People v. Bcgart, 36 Cal. 245. 7 People v. Thompson, 29 Cal. 215. 98 People v. Brennan, 121 Cal. 495. 99 People v. Ah Sam, 41 Cal. 645. 1 People v. Garcia, 58 Cal. 102; People v. Frank, 28 Cal. 513; People v. Thompson, 28 Cal. 215. 2 People v. Milne, 60 Cal. 71; People v. Hall, 94 Cal. 597. s People v. Thompson, 111 Cal. 256. * People v. Shotwell, 27 Cal. 394. s People v. Ellenwood, 119 Cal. 166. People v. Nugent, 4 Cal. 341. 310 CRIMINAL LAW AND PROCEDURE. provocation, 7 but the weapon or instrument must be alleged, 8 but not the particular acts constituting the assault, 9 nor that the defendant intended or had present ability to in- flict a violent injury. 10 In a charge of rape it need not be al- leged that the party committing the crime was of legal age to commit the same, 11 nor that the party on whom the crime was committed was not the wife of the accused, 12 nor is it neces- sary to negative the jurisdiction of the federal court. 18 But facts relied on to take the case out of the statute of limit- ations must be averred. 14 ALTERNATIVE ALLEGATIONS. A disjunctive or alternative allegation such as the accused burned or caused to be burned is not sufficient. The allegation must be positive, 15 and an allegation by way of negative pregnant is insufficient. 16 But conjunctive averments are permissible under disjunctive enumerations of the statute, 17 and conjunctive allegations of acts or intents is permitted where the statute describes them dis- junctively. 18 In perjury direct allegation cannot be sup- plied by any intendment or implication ; and where stated argumentatively, or by way of recitals or inference is insufficient. 19 Inferences of fact cannot be used to aid an indictment. The indictment must charge the crime in * People v. Nugent, 4 Cal. 341. s People v. Vanard, 6 Cal. 562. o People v. English, 30 Cal. 218. 10 People v. Forney, 81 Cal. 118. 11 People v. Ah Yek, 29 Cal. 576; People v. Wessel, 98 Cal. 352. 12 People v. Estrada, 53 Cal. 600. is People v. Collins, 105 Cal. 504. n People v. Montejo, 18 Cal. 38. 15 People v. Hood, 6 Cal. 236; People v. Tomlinson, 35 Cal. 509; People v. 'Myers, 20 Cal. 79. i People v. Griffith, 122 Cal. 212. 17 People v. O'Brien, 130 Cal. 1; People v. Ah Woo, 28 Cal. 206; People v. Tomlinson, 35 Cal. 503; People v. Thompson, 111 Cal. 242; People v. Leyshon, 108 Cal. 440. 18 People v. Ah Woo, 28 Cal. 206; People v. Tomlinson, 35 Cal. 503. 19 People v. Jones, 123 Cal. 299; People v. Dunlap, 113 Cal. 72. INDICTMENT AND INFORMATION. 311 words. 20 An ambiguous information is fatal. 21 Presump- tion in aid of the indictment cannot be allowed. All pre- sumptions are in favor of the innocence of the accused. 22 If the facts stated are consistent with innocence, a pre- sumption of innocence will overcome the accusation, 23 and where two interpretations are permissible and only one of them imports a crime, the indictment is bad. 24 ENDORSEMENTS AND SIGNATURES. The endorsements are not essential to the validity of an indictment. They are only evidence of its finding to secure authenticity and genuineness. 25 A failure to endorse indictment by a foreman of a jury must be taken advantage of by motion to set aside, or it is waived. 26 The name of the district attorney may be signed to the information by his assistant, 27 or by his deputy. 28 And a de facto assistant district attorney may sign the name of his principal by his authority. 29 The information need not specify the county of which he is the district attorney as the court will take judicial notice of this fact. 30 The purpose of the require- ment of the law that the names of the witnesses examined by the grand jury shall be endorsed upon the indictment is to inform both the people and the defendant of the names of the witnesses upon whose testimony the indictment is based and to give them both an opportunity to secure their attendance at the trial. 31 The use of the surname of the witness is sufficient if the defendant knew who was meant 20 People v. Robles, 117 Cal. 681. 21 People v. Knox, 119 Cal. 73. 22 People v. Terrill, 127 Cal. 99. 23 People v. Eppinger, 105 Cal. 36. 24 People v. Williams, 35 Cal. 671. -'5 People v. Lawrence, 21 Cal. 368. -"' People v. Johnston, 48 Cal. 549. 27 People v. Griner, 124 Cal. 19; People v. Turner, 85 Cal. 432. as People v. Etting, 99 Cal. 577; People v. Darr, 61 Cal. 554. 20 People v. Turner, 85 Cal. 432. so Peop'e v. Ashnauer, 47 Cal. 98; People v. Etoanks, 117 Cal. 652. 31 People v. Quinn, 127 Cal. 542; People v. Northey, 77 Cal. 629. 312 CRIMINAL LAW AND PROCEDURE. thereby. 32 The defendant's name need not be endorsed, although a witness. 33 The law does not require that the names of witnesses should be endorsed on an information but only on an indictment, 34 nor does it require the names of witnesses whose depositions were read before the grand jury. 35 An objection to the indictment upon the ground that it was not endorsed as required by law must be taken before demurrer or plea or in any event before the trial jury is impaneled, 30 and must be taken by motion to set aside. 37 The objection that an endorsement "a true bill" was not made must be taken in the same way. 38 but a variance in name endorsed is not ground for setting aside the indictment. 39 A failure to make such endorsement does not preclude the witness from testifying at the trial. 40 An indictment or information may be amended at any time before arraignment, 41 and the alteration after arraignment, although a dangerous practice, if not prejudicial to the substantial rights of defendant, is not error. 42 32 People v. Quinn, 127 Cal. 542; People v. Crowey, 56 Cal. 36; People v. Breen, 130 Cal. 72; People v. Northey, 77 Cal. 629. 33 People v. Northey, 77 Cal. 618; People v. Page, 116 Cal. 392. 34 People v. Neary, 104 Cal. 373. SB People v. Northey, 77 Cal. 618. so People v. Lawrence, 21 Cal. 368; People v. Symonds, 22 Cal. 354; People v. King, 28 Cal. 262; People v. Stacey, 34 Cal. 308; People v. Blackwell, 27 Cal. 67. 37 People v. Freeland, 6 Cal. 96; People v. Symonds, 22 Cal. 354; People v. Northey, 77 Cal. 629; People v. Lopez, 26 Cal. 113; People v. King, 28 Cal. 262; People v. Joce- lyn, 29 Cal. 563; People v. Stacey, 34 Cal. 308. ss People v. Lawrence, 21 Cal. 368. so People v. Crowey, 56 Cal. 36. 40 People v. Lopez, 26 Cal. 113; People v. Jocelyn, 29 Cal. 562; People v. Bonney, 19 Cal. 427. 41 People v. Rodley, 131 Cal. 240; Terrill v. Superior Court. 60 Pac. Reporter 516. 42 People v. Carroll, 92 Cal. 568. CHAPTER LIV. THE ARRAIGNMRN7~ Upon the filing of the indictment or information the defendant must be arraigned. If the charge be a felony the defendant must be personally present, but on a charge of a misdemeanor he may appear for arraignment by counsel. If the defendant appears for arraignment with- out counsel he must be informed by the court of his right to counsel and asked if he desires the aid of counsel. If he does and is unable to employ counsel the court must assign counsel to defend him. The arraignment consists in reading the indictment or information to the defendant and delivering him a copy thereof, with the endorsements thereon, including the list of witnesses and asking whether he pleads guilty or not guilty to the indictment or infor- mation. 1 OBJECTIONS TO THE INDICTMENT OR INFORMATION. All objections to the indictment must be taken before the plea,- except as to want of jurisdiction and the failure to state facts sufficient to constitute a public offense. These questions may be raised at any time. 3 MOTION TO SET ASIDE. A motion to set aside must be made before a demurrer or plea, 4 and is confined to the following grounds : If it be an indictment, that it is not found, endorsed and presented i Penal Code 976-988; People v. Corbett, 28 Cal. 328; People v. Villarino, 66 Cal. 228. z People v. Turner, 39 Cal. 370; People v. Stacey, 34 Cal. 307. s People v. Villarino, 66 Cal. 230. * People v. King, 28 Cal. 266; People v. 'Jtacey, 34 Cal. 308. 314 CRIMINAL LAW AND PROCEDURE as prescribed in the code; 5 that 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 endorsed thereon ; that a person unauthor- ized by law was permitted to be present during the session of the grand jury, and when the charge embraced in the indictment was under consideration; 7 or when the defend- ant had not been held to answer before the rinding of the indictment, on any ground which would have been good ground for challenge, either to the panel or to any indi- vidual juror. 8 The clause "found as prescribed in the code" means simply that it must be concurred in by twelve grand jurors. No objection to the selection, summoning or impaneling of the grand jury can be made on this ground. 9 And if it be an information, that before the rinding thereof the defendant had not been legally com- mitted by a magistrate or that it was not subscribed by the district attorney of the county. 10 In case of an information no objection can be based on the fact that the district attorney who filed the complaint before the magistrate had no personal knowledge of the facts. 11 When made on the ground of an illegal commitment mere errors of the magis- trate, 12 or defects in the complaint before the magistrate, 1 * & Penal Code 995; People v. Crowey, 56 Cal. 38; People v. Southwell, 46 Cal. 145. Ex parte Schmidt, 71 Cal. 212. i Penal Code 995; People v. Ah Chung, 54 Cal. 398. An interpreter is a witness and when necessary to be pres- ent must be sworn. He is not an unauthorized person within the meaning of the code. People v. Lem Deo, 132 Cal. 199. s Penal Code 995; People v. Travers, 88 Cal. 233. In re Gannon, 69 Cal. 547; People v. Colby, 54 Cal. 37; Peo- ple v. Hunter, 54 Cal. 65; People v. Simmons, 119 Cal. 2; People v. Van Horn, 119 Cal . 323. People v. Colby, 54 Cal. 37; People v. Goldenson, 76 Cal. 328. 10 People v. Tarbox, 115 Cal. 60; People v. Bawden, 90 Cal. 200; People v. More, 68 Cal. 503; Ex parte Moan, 65 Cal. 218; People v. Le Roy, 65 Cal. 614; People v. Ah Fook, 64 Cal. 382; People v. McConnell, 82 Cal. 620; Ex parte Baker, 88 Cal. 84; People v. Schmidt, 64 Cal. 261. 11 People v. Cole, 127 Cal. 545. 12 People v. Van Horn, 119 Cal. 323. 13 People v. Dolan, 96 Cal. 315. THE ARRAIGNMENT. 315 or irregularities not affecting the substantial rights of the defendant cannot be reviewed. 14 A dismissal of an infor- mation or indictment is not a bar to a further examination before the magistrate. 15 Where there is nothing in the record to show that the appearance and testimony of the defendant, before the grand jury, was not voluntary, it is not ground for a motion to set aside the indictment that the defendant was not informed of his legal rights as a wit- ness or that his name was not endorsed as a witness upon the indictment. 10 An order setting aside an indictment does not operate as an acquital of the offense charged and is not a bar to a subsequent proceeding. 17 An appeal does not lie from the order setting aside an information, 18 but when the defendant is discharged it becomes a final judg- ment and is appealable. 19 PLEAS OF DEFENDANT. The only pleading on the part of the defendant is either a demurrer or plea ; and both 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. 20 DEMURRER. Objections to the form of the indictment or information should be taken by demurrer, 21 and a failure to demur waives all defects except want, of jurisdiction and the objection that the facts stated do not constitute a public offense. 2 - A demurrer is the only remedy where the objection is that the offense is not sufficiently described, 23 and is proper i* People v. Rodrigo, 69 Cal. 602; People v. Sehorn, 116 Cal. 505. i& Patterson v. Conlan, 123 Cal. 453; Ex parte Clarke 54 Cal. 415. IB People v. Page, 116 Cal. 386. IT Ex parte Foss, 102 Cal. 347. is People v. Richter, 113 Cal. 473; People v. Higgins. 114 Cal. 64. is People v. More 68 Cal. 504. 20 Penal Code 1002-1003. 21 People v. Jim Ti, 3z Cal. 60; People v. Villarino, 66 Cal. 230; People v. Feilen, 58 Cal. 218. 22 People v. Villarino, J6 Cal. 230; People v. Bryon, 103 Cal. 675; People v. Cox, 40 Cal. 275; People v. Jim Tl, 32 Cal. 60. 23 People v. Swenson, 49 Cal. 388; People v. Villarino, 66 Cal. 230. 316 CRIMINAL LAW AND PROCEDURE. when the offense is barred by the statute of limitations. 2 * But a demurrer will not reach defects in the copy of the information served on defendant. 25 An order sustaining a demurrer to an indictment is appealable, 20 but a failure of the people to except to a ruling- ot the court sustaining a demurrer is a waiver by them of the right to appeal. 27 An order allowing a confession of demurrer to the infor- mation, with direction to the district attorney to file another is in effect an order sustaining the demurrer. 28 Upon an order to file a new information after demurrer sustained there need be no finding of the court that the objection can be overcome by the filing of a new one, 29 and upon a demurrer to an indictment being sustained the defendant is not required to be examined before a magis- trate, but the case may be referred to a second grand jury. 30 THE PLEA. There are four kinds of pleas : A plea of guilty, not guilty, a former judgment of conviction or acquittal, and once in jeopardy. 31 Every plea must be oral and entered upon the minutes of the court. 32 The plea is absolutely necessary to make an issue; and, if there be no plea, the trial is an absolute nullity and no judgment can be based upon the conviction. The defendant cannot waive this question by going to trial without it, 33 but mere irregu- larities on arraignment are waived by asking time to plead. 3 * And where a plea is withdrawn and no sub- -* People v. Ayhens, 85 Cal. 86. 25 People v. Owens, 132 Cal. 471. 26 People v. Jordan, 65 Cal. 644. 27 People v. Wooster, 16 Cal. 435; People v. Lee, 107 Cal. 478. 28 People v. Biggins, 65 Cal. 564. 29 People v. O'Leary, 77 Cal. 30. so People v. Sexton, 132 Cal 37. si Penal- Code 1016. 32 Penal Code 1017; People v. Johnson, 47 Cal. 122. 33 People v. Corbett, 28 Cal. 328; People v. Samario, 84 Cal. 484; People v. Mflnaghan, 102 Cal. 229; People, v. Gaines, 52 Cal. 479; People v. Bowman, 81 Cal. 566. 34 People v. Lightner, 49 Cal. 226. THE ARRAIGNMENT. 317 sequent plea is entered, a conviction cannot be sustained; and granting time to plead rebuts the presumption that it was understood that the original plea was to stand as the subsequent plea. 35 When the original information states no offense and there is no arraignment or plea to the amended information, no issue is joined and no conviction can be had. 36 If the record on appeal fails to show that the defendant was arraigned and pleaded, the court will assume that there was no arraignment or plea. 37 The verdict must find on each plea entered by the defendant or there can be no judgment of conviction. 38 No presumption of a with- drawal of any of the pleas will be indulged in. 39 The plea of not guilty puts in issue the locus delicti as well as all other material allegations of the information or indict- ment. 40 Upon a plea of guilty the court must determine the degree of the offense. 41 Where the defendant stands mute, it is the duty of the court to enter a plea of not guilty ; 42 but where the defendant refuses to plead, after the demurrer is overruled, the court may pronounce judgment against him, 43 or direct a plea of not guilty to be entered. 44 But the court cannot pronounce a judgment against the defendant who declines to plead, until after his demurrer is overruled. 45 A plea of guilty must be made by the defendant himself in open court, and if entered inad- vertently should be allowed to be withdrawn. 46 The court may in its discretion allow the defendant to withdraw a 35 People v. Monaghan, 102 Cal. 229. ss People v. Moody, 69 Cal. 184. 37 People v. Gaines, 52 Cal. 479. as People v. Fuqua, 61 Cal. 377; People v. Tucker, 115 Cal. 388. so People v. Fuqua, 61 Cal. 377; People v. Tucker, 115 Cal. 380. 4" Penal Code 1019; People v. Aleck, 61 Cal. 137; Peo- ple v. Bevans, 52 Cal. 470. 41 Penal Code 1192; People v. Jefferson, 52 Cal. 452. 42 Penal Code 1024; People v. McCoy, 71 Cal. 395; Peo- ple v. Samario, 84 Cal. 486. 43 People v. King, 28 Cal. 266; Penal Code 1011. 44 People v. Jocelyn, 29 Cal. 563. 45 People v. Monaghan, 102 Cal. 229. 46 People v. McCrory, 41 Cal. 458; People v. Scott, 59 CaL 341. 318 CRIMINAL LAW AND PROCEDURF. plea of guilty to interpose a demurrer. 47 All objections to irregularities on the arraignment are waived by a failure to ask leave to withdraw the plea and make the objection to the indictment. 48 The leave to withdraw a plea to inter- pose a motion to set aside the indictment rests in the dis- cretion of the court, and the record need not disclose the court's reason for a refusal. 49 A plea cannot be withdrawn after the punishment is fixed, 60 as the defendant cannot speculate on the clemency of the court by substituting a plea of guilty for a plea of not guilty, with a right to retract if, before sentence, he finds his expectations will not be realized. 51 After a juror has been discharged for sickness, the court should allow the defendant to interpose a plea of former acquittal and once in jeopardy. 52 When a plea of guilty is withdrawn, by permission of the court, and a plea of not guilty substituted, the plea of guilty becomes functus officio and cannot be proved as an admis- sion or confession of the defendant. 53 The court may in its discretion refuse to allow the records to be amended to show a lack of personal plea to the information, as the court is presumed to recollect what occurred in its presence. 54 The defendant cannot impeach the record by showing that the plea was entered by his counsel. 65 A plea of guilty, as charged in the indictment, which charges petit larceny and a previous conviction is a plea of guilty to a felony. 56 Where the defendant is charged in the indictment or information with some particular offense, and with having suffered a previous conviction of another offense, and is arraigned, he may plead simply not guilty and thus put in issue every material allegation of 47 People v. Shem Ah Fook, 64 Cal. 380; People v. Mc- Crory, 41 Cal. 458. 48 People v. Villarino, 66 Cal. 228. 49 People v. Lee, 17 Cal. 76; People v. Scott, 59 Cal. 342. so People v. Lenox, 67 Cal. 113. People v. Miller, 114 Cal. 10; People v. McCrory, 41 Cal. 458. 52 People v. Stewart, 64 Cal. 60. 53 People v. Ryan, 82 Cal. 617. 54 People v. Samario, 84 Cal. 484. SB People v. Emerson, 130 Cal. 562. SB People v. Delany, 49 Cal. 394. THE ARRAIGNMENT. 319 the indictment or information, 57 or he may plead not guilty to the present offense charged and confess the previous conviction. 68 If he confesses the previous conviction, then the clerk on reading the indictment or information to the jury, must omit therefrom all that relates to such previous conviction, and no testimony in regard to it can be offered or references had to it during the trial, 59 but the jury may have its attention called to a prior life sentence for the purpose of guiding it as to the punishment to be inflicted. 60 On arraignment the court may ask the defendant whether he has suffered a previous conviction, 61 and in reading the indictment to the jury the alias under which such con- viction was had may be read. 62 The purpose of excluding it from the jury is to prevent credibility of the defendant as a witness being affected thereby, 63 and it will be presumed in the absence of a positive showing in the record to the contrary that the conviction which was confessed was not read to the jury. 64 Where the previous conviction is not confessed and evidence is introduced to establish it, the jury is not authorized to consider it for any other pur- pose. 65 After a confession of a prior conviction on arraignment only the question of the guilt of the crime charged need be submitted to the jury. 66 No trial is " People v. Wheatley, 88 Cal. 117. 58 People v. Lewis, 64 Cal. 401; People v. Brooks, 65 Cal. 295; Ex parte Young Ah Gow, 73 Cal. 438. so Penal Code 1093; People v. Meyer, 73 Cal. 548; People v. Sansome, 84 Cal. 449; People v. Wheatley, 88 Cal. 117; People v. Thomas, 110 Cal. 43; People v. Arnold, 116 Cal. 687; People v. Brooks, 65 Cal. 295; People v. McGregar, 88 Cal. 141; People v. Fowler, 88 Cal. 140; People v. Gutierrez, 74 Cal. 83. People v. Hong Ah Duck, 61 Cal. 387; People v. Majors, 65 Cal. 147. ei People v. McGregar, 88 Cal. 140; People v. Wheatley, 88 Cal. 117. 62 People v. Maroney, 109 Cal. 277. 03 People v. Arnold, 116 Cal. 682. 6* People v. McGregar, 88 Cal. 140; People v. Douglass, 87 Cal. 281; People v. Flynn, 73 Cal. 511. 65 People v. Von, 78 Cal. 1; People v. Thomas, 110 Cal. 41. ee Ex parte Young Ah Gow, 73 Cal. 438; People v. Meyer, 73 Cal. 549; People v. Wheatley, 88 Cal. 117; People v. Brooks, 65 Cal. 295; People v. Barton, 88 Cal. 178. 320 CRIMINAL LAW AND PROCEDURE. required on a plea of guilty.' 17 The defendant is, however, estopped to deny the admission of a prior conviction with- out first withdrawing his plea thereto. 08 <" People v. Carrol ton, T7 Cal. 559; People v. Meyer, 78 Cal. 549. s People v. Appleton, 120 Cal. 250. CHAPTER LV. CONTINTJANCBS. ABSENCE OF WITNESSES. The accused person has the right to the personal attendance of witnesses on his behalf, and where they can be had without unreasonable delay, he has a right to have the - cause continued for that purpose. 1 Upon an appli- cation for a continuance on the ground of absence of wit- nesses, the application should be supported by affidavits which show that the applicant has used due diligence in his endeavor to procure the attendance of the witnesses, and in his preparation for trial. 2 And diligence must be shown also that he has tried to procure others who could testify to the same facts, 3 and that the application is not made for delay. 4 It must further show that the testimony or presence of the witness can be procured at a sub- sequent date. 5 The affidavits must be made by the party and not by his attorney. 6 It must set forth the reasons 1 People v. Dodge, 28 Cal. 445; People v. Brown, 46 Cal. 103; Willard v. Superior Court, 82 Cal. 465; People v. Francis, 38 Cal. 187. 2 People v. Baker, 1 Cal. 404; People v. Winters, 125 Cal. 325; People v. Quincy, 8 Cal. 89; People v. Gaunt, 23 Cal. 158; People v. Williams, 24 Cal. 38; People v. Sanders, 114 Cal. 216. s People v. Williams, 24 Cal. 31. * People v. Putman, 129 Cal. 258. s People v. Winters, 125 Cal. 325; People v. Ashnauer, 47 Cal. 98; People v. Leyshon, 108 Cal. 444; People v. Breen, 130 Cal. 72; People v. Jocelyn, 29 Cal. 562; Peo- ple v. Lewis, 64 Cal. 402; People v. Dodge, 28 Cal. 445; People v. Gaunt, 23 Cal. 156; People v. De Lacey, 28 Cal. 590; People v. Jenkins, 56 Cal. 4; People v. Cleve- land, 49 Cal. 577; People v. Wade, 118 Cal. 673. e People v. Jenkins, 56 Cal. 4. CRIMES--21 322 CRIMINAL LAW AND PROCEDURE. for the belief and the nature of the information upon which it is founded. 7 It should state the facts from which the court may infer that the witness may be procured. 8 An ^affidavit showing an unsuccessful search for the witness without showing that his attendance can be secured in a reasonable time, is not sufficient. 9 It must further show that the witness cannot be readily reached by an attach- ment, 10 and that a subpoena has been issued for him; 11 that the testimony is not merely cumulative and that the appli- cation is not made for delay, 12 and should. state the facts the witness would testify to if present, and show that it cannot be otherwise procured. 13 The testimony must be relevant and material. 14 The affidavit must not be made in the alternative as, that he can procure the attendance of a witness out of the state, or his deposition. 15 The accused is entitled to a continuance where he was misled by a promise of the witness to appear at the trial. 16 Upon appeal from order refusing continuance the affidavit used in support of the application must be embodied in a bill of exceptions. 16 * DISCRETIONARY WITH THE COURT. The granting or refusing of applications for continuances i People v. Brown, 46 Cal. 103; People v. Ah Yute, 53 Cal. 614; People v. Leyshon, 108 Cal. 444; People v. Francis, 38 Cal. 183. s People v. Ah Yute, 58 Cal. 614; People v. Lewis, 64 Cal. 403; People v. Leyshon, 108 Cal. 444; People v. Wade, 118 Cal. 673. o People v. Wade, 118 Cal. 672. 10 People v. Weaver, 47 Cal. 106. 11 People v. Lampson, 70 Cal. 204. 12 People v. Thompson, 4 Cal. 239; People v. Williams, 24 Cal. 38; People v. Gaunt, 23 Cal. 158; People v. Jen- kins, 56 Cal. 6; People v. Francis, 38 Cal. 183. is People v. Ah Fat, 48 Cal. 61; People v. Lampson, 70 Cal. 204; People v. Wade, 118 Cal. 673; People v. Mellon, 40 Cal. 648; People v. Quincy, 8 Cal. 89; People v. Gaunt, 23 Cal. 158; People v. Williams, 24 Cal. 38. i* People v. Williams, 43 Cal. 344. is People v. Francis, 38 Cal. 183. i People v. Brown, 46 Cal. 103. iea People v. Weaver, 47 Cal. 106. CONTINUANCES. 323 rests in the sound discretion of the court, 17 but it is an abuse of discretion to refuse a continuance when a proper showing is made. 18 It is not, however, to refuse a con- tinuance to enable the prosecution to procure witnesses. 19 And it is not an abuse of discretion where there is no show- ing- that the application is made in good faith. 20 An appli- cation in bad faith, 21 or which is too long delayed, should be denied. 22 ON WHAT PROCEEDINGS GRANTED. Where the failure to endorse the names of the witnesses on the indictment; operates as a surprise to the defendant, a continuance should be granted on a proper showing, 23 but the application must be supported by affidavits. 24 It may be had for the purpose of producing evidence upon a motion to set aside an indictment, 25 or for further time for pronouncing judgment. 26 But the trial will not be post- poned until the determination of an appeal on the issue of insanity. 27 ADMISSION OF THE FACT. If the prosecution admits the fact the applicant intends to prove by the absent witnesses, the court may refuse the continuance, 28 but to defeat the application, the people must admit the truth of the facts made in the affidavit, not merely that the witness would so testify. 29 But the IT People v. Jocelyn, 29 Cal. 562; People v. Collins, 75 Cal. 411; People v. Goldenson 76 Cal. 328; People v. Gaunt, 23 Cal. 156; People v. Jenkins, 56 Cal. 5; People v. Ley- shon, 108 Cal. 440. is People v. Plyler, 121 Cal. 160; People v. Dodge, 28 Cal. 445; People v. McCrory, 41 Cal. 458; People v. Brown, 46 Cal. 103. 19 People v. Treadwell, 69 Cal. 227. 20 People v. De Lacey, 28 Cal. 590. 21 People v. Mortimer, 46 Cal. 114. 22 People v. Beam, 66 Cal. 394; People v. Logan, 123 Cal. 414. 23 People v. Preeland, 6 Cal. 96; People v. Breen, 130 Cal. 72. 2- People v. Symonds, 22 Cal. 349; People v. Jocelyn, 29 Cal. 564. 25 People v. Travers, 88 Cal. 23?. 26 People v. Holmes, 126 Cal. 462. 27 People v. Moice, 15 Cal. 330. 28 People v. Young, 108 Cal. 8. 29 People v. Diaz, 6 Cal. 248; People v. Brown, 54 Cal. 243. 324 CRIMINAL LAW AND PROCEDURE. prosecution is not required to admit that a deposition taken at the preliminary examination is absolutely true before it can be admitted. 30 The error is not cured, in the court refusing to grant a continuance on the ground of sickness of witnesses, by the fact that the district attorney stated during the trial that the witness was well, and the counsel for the defendant answered that he was too ill to be in court. 31 ABSENCE OF COUNSEL. The absence of the counsel, on account of sickness, is sufficient ground upon which to grant a continuance, 82 but where the continuance is asked on the ground of the absence of a counsel, engaged in trying another case, it must be shown that he became employed therein before the criminal case had been set for trial. And in case of his attendance upon the state legislature, it must appear that his engagement as an attorney was made before the com- mencement of the session of legislature. 33 A continuance upon the ground of intoxication of counsel is within the discretion of the court. Counsel cannot, by becoming intoxicated, give to the defendant the right to indefinite continuance. 24 so People v. Leyshon, 108 Cal. 440. si People v; Plyler, 121 Cal. 160. 32 People v. Logan, 4 Cal. 188. 33 People v. Goldenson, 76 Cal. 328. z* People v. Warren, 130 Cal. 678. CHAPTER LVI. CHANGE OK VENTJK. BIAS OF THE PEOPLE. Where there exists such an excitement or prejudice in the whole county upon the subject as would preclude the possibility of procuring an impartial jury without diffi- culty, or would in any manner interfere with the impartial administration of the laws, and this fact is made to appear to the court by affidavits, the court should change the venue. 1 It will always be granted, on the application of the defendant, where no fair and impartial trial can be had in the county where the action is pending, 2 but the fact that a jury cannot be selected from a portion of the county who would give the defendant a fair trial is not a suffi- cient ground, 3 nor that a number of citizens united to employ counsel to prosecute the defendant. 4 SUFFICIENCY OF THE AFFIDAVITS. The affidavit of the accused alone that he cannot have a fair trial is not sufficient. 5 The affidavit should state the facts and circumstances from which the conclusion that a fair trial cannot be had is deducible. 6 The court is 1 People v. Suesser, 132 Cal. 631; People v. Yoakum, 53 Cal. 566. 2 Penal Code 1033; People v. Wong Ark, 96 Cal. 137. s People v. Baker, 1 Cal. 404. * People v. Graham, 21 Cal. 265. But it was held in Peo- ple v. Lee, 5 Cal. 3o3, that where one hundred citizens united in employing counsel to prosecute the defendant it was a sufficient showing, in the absence of a, counter- affidavit, to entitle the defendant to a change of venue. s People v. Graham, 21 Cal. 261. People v. Yoakum, 53 Cal. 566; People v. McCauley, 1 Cal. 379; People v. Congleton, 44 Cal. 92. 326 CRIMINAL LAW AND PROCEDURE. not ousted of jurisdiction to try by the mere filing of an affidavit of prejudice and bias, 7 for counter-affidavits may be filed by the people. 8 Upon the application for a change of venue, if witnesses are desired to prove the allegations of prejudice and bias, the application for a subpoena for such witnesses must be supported by affidavits. 9 An affi- davit on information and belief is insufficient. 10 The granting or denial of the application rests in the sound discretion of the court, 11 and is reviewable only in cases of gross abuse of discretion. 12 But it is not a matter of arbitrary discretion. The discretion must be warranted by the facts disclosed by the record. 13 The judge must find the facts as to the bias from the affidavits and showing made. 14 APPLICATION WHEN MADE. The application for a change of venue comes too late after the jury is obtained, 16 but the court may postpone the motion, until the impanelment of the jury is attempted, for the purpose of determining whether or not such prejudice really exists. 16 When a motion to change the venue is postponed, by the court, and the court afterwards intimates to counsel that it may be renewed and the counsel declines to renew, f Ex parte Wright, 119 Cal. 401. s People v. Yoakum, 53 Cal. 566; People v. Majors, 65 Cal. 147; People v. Goldenson, 76 Cal. 336; People v. Vincent, 95 Cal. 427; People v. Fredericks, 106 Cal. 558. o People v. Elliott,' 80 Cal. 296. 10 People v. Shuler, 28 Cal. 490. 11 People v. Vincent,; 95 Cal. 425; People v. Perdue, 49 Cal. 425; People v. Congleton, 44 Cal. 92; People v. Yoakum, 53 Cal. 567; People v. Goldenson, 76 Cal. 339; People v. Elliott, 80 Cal. 298; People v. Mahoney, 18 Cal. 181. 12 People v. Fisher, 6 Cal. 154; People v. Congleton, 44 Cal. 95; People v. Goldenson, 76 Cal. 339; People v. Elliott, 80 Cal. 298. is People v. Yoakum, 53 Cal. 568. i* People v. Mahoney, 18 Cal. 188; People v. Perdue, 49 Cal. 427; People v. Elliott, 80 Cal. 298; People v. Yoakum, 53 Cal. 568; People v. Compton, 123 Cal. 403; 1 Teople v. Rodley, 131 Cal. 240. is People v. Cotta, 49 Cal. 166. i People v. Plummer, 9 Cal. 299; People v. Goldenson, 76 Cal. 340; People v. Fredericks, 106 Cal. 558. CHANGE OF VENUE. 327 the failure of the court to change the venue is not error, 17 and the motion is properly denied where it is not renewed after leave granted to renew. 18 The failure to present a motion, at the time to which the hearing of it was con- tinued, waives the same. 19 CHANGE ON APPLICATION OF THE PEOPLE. The defendant! has the right to a trial by -a jury selected from the county where the crime is alleged to have been committed, and any statute enacted by legislature which authorizes a change of venue to be made upon the appli- cation of the people, without the consent of the defendant, is unconstitutional and void. 20 BIAS OF THE JUDGE. A change of venue cannot be granted on the ground of the disqualification of a judge to try the cause, 21 a change of judges may be had for that reason. 22 The bias or prejudice of the judge, upon an application for a change of judges, must be determined by affidavits alone. The judge is not permitted to use his own knowledge of the matter and where no counter affidavits are filed it is the duty of the judge to grant the motion. 23 An erroneous IT People v. Plummer, 9 Cal. 298. is People v. Goldenson, 76 Cal. 328. is People v. Fredericks, 106 Cal. 554. 20 People v. Powell, 87 Cal. 348. 21 People v. Shuler, 28 Cal. 490; In re Jones, 103 Cal. 398; People v. McGarvey, 56 Cal. 327; Penal Code 1033. Before the amendment of section 170 C. C. P. in 1897 to allow a change of judges for such cause, it was uniformly held that bias and prejudice of the judge did not disqualify him from trying a case. See People v. Mahoney, 18 Cal. 181; People v. Williams, 24 Cal. 35; People v. Shuler, 28 Cal. 495; In re Jones, 103 Cal. 398; In re Guerrero, 69 Cal. 102. 22 Sec. 170 C. C. P.; People v. Compton, 123 Cal. 123; People v. Rodley, 131 Cal. 240. 23 People v. Compton, 123 Cal. 403; People v. Rodley 131 Cal. 240. CRIMINAL LAW AND PROCEDURE. ruling- by the court is not evidence of bias. 24 The change of judges during trial is an irregular proceeding, 25 but after trial another judge legally presiding may pronounce sentence. 20 24 People v. Williams, 24 Cal. 31. 25 People v. Eckert, 16 Cal. 111. a People v. Henderson, 28 Cal. 466. CHAPTER LVII. THE JURY. THE SELECTION. There is no distinction to be observed in the selection of grand and petit jurors, but the names of all jurors selected are to be placed in the same box ; and it is unnecessary for the court in making its order designating the number of grand and trial jurors required for the ensuing year, to designate the separate number of each class of jurors required. 1 The object of the statute in requiring that the clerk's certificate to the list of persons drawn for jurors shall state the date of the order directing the drawing, is simply to identify such order; and where the record suffi- ciently identifies the order, the failure of the clerk' to cer- tify, is an immaterial error. 2 It is not error for a dis- qualified judge to draw the panel, as he does not thereby sit or act in any cause. 3 The order directing the "drawing of the names of thirty-five good and lawful men" to be summoned from the body of the county, is a proper order. 4 The order designating the names to be drawn need not be signed by the judge. 5 Any immaterial departure from the prescribed forms is not fatal, if the defendant has opportunity to secure a competent and impartial jury. 6 The selection of the jury, by the board of supervisors, need not be at a regular or special meeting, but may be at an 1 People v. Crowey, 56 Cal. 36. 2 People v. lams, 57 Cal. 115. ' People v. Ah Lee Boon, 97 Cal. 171. * People v. Wheeler, 65 Cal. 77. s People v. Baldwin, 117 Cal. 244. People v. Davis, 73 Cal. 355. 330 CRIMINAL LAW AND PROCEDURE. adjourned meeting, 7 and the names left in the box from a list of qualified jurors issued the previous year may be included in the drawing list by the supervisors-. 8 Where the jurors are legally drawn, but have not been legally summoned, additional jurors may be summoned. 9 THE SUMMONING. Where the sheriff and coroner are both disqualified from summoning a jury the court should appoint an elisor. 10 But the sheriff is not disqualified by reason of believing that the defendant committed the homicide, if he had no opinion as to the justification under which it was clone. The same qualification applies to the sheriff in summoning the jury as it does to a juror who is to try the defendant; and, if the sheriff is qualified as a juror, he is qualified to summon the jury. 11 The court should require a showing that the sheriff is disqualified before making an appointment of an elisor. 12 It must appear that not only the sheriff, but the coroner of a county is also disqualified. 13 But where they are both disqualified, the elisor ought to be appointed, 14 and the court should follow the statutes as closely as pos- sible in making the appointment. 15 The word "elisor" has a peculiar and appropriate meaning in law, and denotes a person appointed to serve process or return a jury when the sheriff and coroner have been challenged as incom- petent. 16 The return of the sheriff upon the venire is no part of the judgment roll, unless incorporated in a bill of exceptions. 17 7 People v. Baldwin, 117 Cal. 244. s People v. Rodley, 131 Cal. 240. 9 People v. Devine, 46 Cal. 46; People v. Sehorn, 116 Cal. 509. 10 People v. Sehorn, 116 Cal. 503. 11 People v. Ryan, 108 Cal. 581. 12 People v. Irwin, 77 Cal. 494. 13 People v. Young, 108 Cal. 8; People v. Sehorn, 116 Cal. 509; People v. Fellows, 122 Cal. 238; Bruner v. Superior Court, 92 Cal. 239; People v. Ebanks, 117 Cal. 652. i* People v. Ebanks, 117 Cal. 652; People v. Fellows, 122 Cal. 238. is People v. Irwin, 77 Cal. 499; People v. Yeaton, 75 Cal. 415. is Bruner v. Superior Court, 92 Cal. 239. 17 People v. O'Brien, 88 Cal. 483. THE JUKY. 331 THE RIGHT OF CHALLENGE. The defendant has the right to challenge for cause, and peremptorily; and the failure of the court to instruct the defendant of such right is reversible error, if prejudical to him, 18 but where he is represented by counsel, a failure to inform him of such right is not error. 19 Where, how- ever, he has no counsel, it is. 20 Defendants jointly indicted have a right to separate trials, but when tried together, they must join in the challenge to a juror. 21 An improper allowance of a challenge of the people will defeat the verdict.'-'- THE CHALLENGE TO THE PANEL. Objections to the panel must be made before the jury is sworn.- 3 They cannot be made after verdict, 24 and must be taken only on statutory grounds. A challenge to the panel may be founded only on a material departure from the forms prescribed in respect to the drawing and return- ing of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn. 25 Thus it cannot be based on the objection that some of the jurors were also on a former special venire, dismissed on the ground of bias and prejudice of the summoning officer, 26 or upon objections which merely go to the mode of service of the venire, 27 or upon the ground of non-residence of some of the jurors, 28 or that some are not qualified, 29 or because no jury has been drawn after the court has directed one is People v. O'Brien, 88 Cal. 483; People v. Moore, 103 Cal. 511. is People v. Ellsworth, 92 Cal. 594. 20 People v. Moore, 103 Cal. 508. 21 People v. McCalla, 8 Cal. 301. 22 People v. Stewart, 7 Cal. 141. 23 People v. Oliveria, 127 Cal. 376; People v. Durrant, 116 Cal. 195. 24 People v. Ah Lee Boon, 97 Cal. 171. 25 People v. Welch, 49 Cal. 174; Bruner v. Superior Court, 92 Cal. 253; People v. Wallace, 101 Cal. 283; Levy v. Wilson, 69 Cal. 111. 26 People v. Vincent, 95 Cal. 425; People v. Durrant, 115 Cal. 195; People v. Sehorn, 116 Cal. 509 27 People v. M'Kay, 122 Cal. 628. 28 People v. Wallace, 101 Cal. 281. 20 People v. Durrant, 116 Cal. 179. 332 CRIMINAL LAW AND PROCEDURE. drawn. 30 It cannot be allowed where the court has ordered the selection of a jury specially, 31 except on the ground of the bias of the officer who summoned them. 32 That the names of some of the jurors were not on the assessment roll, 33 or that some were non-residents of the county , 84 or that the appointment of an elisor was irregular, is not ground of challenge to a special venire, but such objections may be reviewed on appeal as an alleged error at law occuring during the trial. 35 Where the challenge is made on account of the bias of the officer summoning the jury, the bias of the officer must be upon a ground which would be good cause for a challenge against the juror. The test of the' sheriff's qualification is whether he would be qualified to sit as a juror. 30 The denial of the challenge on the ground of disqualification of the sheriff will not be reviewed on appeal where the evidence of the mental condition of the officer is conflicting. 37 If .the court has any doubt as to the identity of the uncertified list it should sustain the chal- lenge to the panel. 38 The challenge to the panel should be tried by oral examination of witnesses in court, and cannot be heard upon affidavits. 39 The discharge of the panel is not reversible error where the defendant is not pre- judiced. 40 IMPANELING THE JURY. In impaneling a jury twelve names must be drawn from the box, and the defendant must be allowed to examine the whole twelve before exercising his right of peremptory so People v. Davis, 47 Cal. 93; People v. Sehorn, 116 Cal. 509. si People v. Vance, 21 Cal. 401; People v. Williams, 43 Cal. 349. 32 People v. Wallace, 101 Cal. 281. 33 People v. Searcey, 121 Cal. 1; People v. Young, 108 ral. 8; People v. Durrant, 116 Cal. 194. 34 People v. Wallace, 101 Cal. 281. ss People v. Fellows, 122 Cal. 233; People v. Welch, 49 Cal. 174. se People v. Coyodo, 40 Cal. 586. 37 People v. Hartman, 130 Cal. 487. ss People v. Young, 108 Cal. 8. 39 People v. Brown, 48 Cal. 253; People v. Durrant, 116 Cal. 199. 40 People v. Murray, 85 Cal. 350. THE JURY. 383 challenge as to any, 41 or his right to challenge for cause. If any be accepted they must then be sworn, and a suffi- cient number drawn to complete the jury, and the same process repeated until the jury is completed. 42 But the names of all the jurors from which the jury is to be drawn must be in the box. 43 The court is not permitted to place a part of the panel in the box and draw the jury therefrom. If not a part of the regular panel, the court has no authority to order jurors serving in another department of the court to be brought in to try a cause, nor can they be included in a special venire. 44 The failure of one of the veniremen to respond, is not ground for delay if there are enough present without him. 45 Jurors may be sworn individually before the panel is completed. 46 Objection to the impanel- ment is waived by a failure to make it at the time. 47 A juror on a special venire does not cease to be on the panel by a failure to respond. 48 A special panel may be ordered although the special list is not exhausted. 49 Where there is no regular panel, the court may order a sufficient number of persons for a trial jury. 50 PEREMPTORY CHALLENGES. One of the chief safeguards against an unjust convic- tion is the right of the defendant to peremptorily challenge the jurors, and the courts should permit the freest exercise of this right. 51 In cases where the penalty is less than life imprisonment, the defendant is entitled to ten chal- 41 People v. Riley, 65 Cal. 107. 42 People v. Scoggins, 37 Cal. 676; People v. Russell, 46 Cal. 122; People v. Hickman, 113 Cal. 84; People v. lams, 57 Cal. 115. is People v. Edwards, 101 Cal. 543. 44 People v. Compton, 132 Cal. 484. 45 People v. Collins, 105 Cal. 504. 46 People v. Reynolds, 16 Cal. 129. 47 People v. Johnson, 104 Cal. 418. 48 People v. Collins, 105 Cal. 504. 49 People v. Durrant, 116 Cal. 179; People v. Sehorn, 116 Cal. 509. so People v. Stuart, 4 Cal. 218; People v. Vance, 21 CaL 403; People v. Williams, 43 Cal. 349. si People v. Edwards, 101 Cal. 543. 334* CRIMINAL LAW AND PROCEDURE. lenges; 52 he is entitled to twenty in other cases. 03 Where the trial is of a prior offense and robbery, 64 or the only sentence that may be imposed is life imprisonment, he is entitled to twenty. 55 In robbery, 06 and rape, 57 he is entitled to ten only. 58 The defendant must have exhausted all of his peremptory challenges before he can complain of the ruling of the court upon a challenge for cause. 69 WHEN TAKEN. It may be made at any time after the name of a juror is drawn, 00 or after all are accepted, but before being sworn. 01 The defendant should exercise his right before the procurement of a full panel as fast as the jurors are passed for cause. 02 If the prosecution pass the jury to the defendant, who declines to challenge, the prosecution may then challenge a juror peremptorily before he is sworn. 03 A peremptory challenge after a juror is sworn is not a matter of right. 04 It is within the discretion of the court, 65 82 People v. Clough, 59 Cal. 438. 63 People v. Riley, 65 Cal. 109; People v. Fultz, 109 Cal. 259; People v. Etting, 99 Cal. 578. 54 People v. Harris, 61 Cal. 136. es People v. O'Neil, 61 Cal. 435. 56 People v. Riley, 65 Cal. 107. 67 People v. Fultz, 109 Cal. 258. 68 But the court said in People v. Fultz, that they fol- lowed the Riley case, and allowed only ten challenges in rape cases merely on the ground of stare decisis. People v. Logan, 123 Cal. 415; People v. Clough, 59 Cal. 438; People v. Riley, 65 Cal. 107; People v. Fultz, 109 Cal. 259. 69 People v. Gatewood, 20 Cal. 147; People v. Gaunt, 23 Cal. 158; People v. Durrant, 116 Cal. 196; People v. McGungill, 41 Cal. 429; People v. Well, 40 Cal. 268; People v. Winthrop, 118 Cal. 88. eo People v. Ah You, 47 Cal. 121. 81 People v. Kohle, 4 Cal. 199. 82 People v. Russell, 46 Cal. 121; People v. lams, 57 Cal. 125; People v. Scoggins, 37 Cal. 676; People v. Riley, 65 Cal. 108; People v. Dinsmore, 102 Cal. 382. es People v. McCarty, 48 Cal. 557; People v. Majors, 65 Cal. 148; People v. Dolan, 96 Cal. 319. a* People v. Reynolds, 16 Cal. 129; People v. Durrant, 116 Cal. 198; People v. Scoggins, 37 Cal. 690. eo People v. Ward, 105 Cal. 335. THE JURY. 335 and may be allowed for good cause shown. 60 Where a juror is excused on account of sickness, the defendant is allowed the whole number of his peremptory challenges to any new juror or any of the original eleven. 67 EXCUSING FOR CAUSE. The court has a broad discretion in excusing of its own motion without a challenge. The defendant has no absolute right to have any particular juror and is only entitled to a lawful jury. 08 It can excuse a juror after the jury is impaneled and before the introduction of evidence on account of illness, 60 but excusing a juror for illness is proper, only where the defendant is given another per- emptory challenge. 70 The court is not bound to excuse a juror for a sickness that does not incapacitate him. 71 The court may also excuse a juror who does not understand the English language. 72 EVIDENCE UPON A CHALLENGE. If the juror is challenged for implied bias he cannot be asked whether he believes the defendant guilty or not guilty, 1 but where he is challenged for actual bias he can be asked if the opinion entertained by him be fa,vorable or unfavorable to the defendant. 2 This is for the purpose ee People v. Rodriguez, 10 Cal. 51; People v. Scoggins, 37 Cal. 677; People v. Russell, 46 Cal. 121; People v. Montgomery, 53 Cal. 576; People v. Jenks, 24 Cal. 11; People v. Durrant, 116 Cal. 198; People -v. Bemmerly, 87 Cal. 120; People v. Reynolds, 16 Cal. 129. 67 People v. Stewart, 64 Cal. 60; People v. Brady, 72 Cal. 492; People v. Wong Ark, 96 Cal. 128. ss People v. Lee, 17 Cal. 76; People v. Arceo, 32 Cal. 40; People v. Manahan, 32 Cal. 72; People v. Murray, 85 Cal. 356; People v. Collins, 105 Cal. 511; People v. Durrant, 116 Cal. 199; People v. Hickman, 113 Cal. 80; People v. Searcey, 121 Cal. 1. ea People v. Van Horn, 119 Cal. 324. "o People v. Brady, 72 Cal. 490; People v. Wong Ark, 96 Cal. 128; People v. Van Horn, 119 Cal. 332. 71 People v. Brown, 76 Cal. 573. 72 People v. Arceo, 32 Cal. 40; People v. Brown, 76 Cal. 573. 1 People v. Hamilton, 62 Cal. 377. 2 People v. Kunz, 73 Cal. 317; People v. Brown, 72 Cal. 390; People v. Ward, 77 Cal. 114; People v. Hamilton, 62 Cal. 377; People v. Car Soy, 57 Cal. 102; People v. Backus, 5 Cal. 277. 336 CRIMINAL LAW AND PROCEDURE. of discovering facts to the defendant from which he can determine whether he will make a peremptory challenge or not. 3 The defendant may put questions for actual bias without first challenging for cause. 4 Errors in allowing evidence on i-oir dire is cured by the defendant sub- sequently challenging the juror peremptorily and the court allowing him another peremptory challenge^ The juror's answers to hypothetical questions do not disqualify him. 8 It is not proper to ask the juror how many murder cases he has sat on. 7 Leading questions may be put to the juror within the discretion of the court. 8 The juror may be asked if he believes in the right of a defendant to take the law into his own hands, and if he answers in the affirmative, he is disqualified. Prejudice in law has no degree, the law contemplates that the mind of a juror shall be free from bias and prejudice; to ascertain which resort may be had to his declarations to others, and his statements under oath. It is competent to ask any questions calculated to elicit this ; for instance he may be asked if he is a member of a secret society in which an obligation is taken not to give a fair trial to a certain class of persons. 10 When evidence on a challenge to a juror presents a question of fact, and not of law, the appellate court will not review it. 11 ACTUAL BIAS. Actual bias is the existence of that state of mind on the part of the juror in reference to the case, or to either of the parties, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights 3 People v. Car Soy, 57 Cal. 102; People v. Han Tin, 57 Cal. 142; People v. Hamilton, 62 Cal. 382. * People v. Backus, 5 Cal. 277; People v. Hamilton, 62 Cal. 381. s People v. Freeman, 92 Cal. 359. e People v. Copsey, 71 Cal. 548. T People v. Brittan, 118 Cal. 409. s People v. Ah Lee Boon, 97 Cal. 172. o People v. Plyler, 126 Cal. 379; People v. Car Soy, 57 Cal. 102; People v. Hamilton, 62 Cal. 378. iu People v. Reyes, 5 Cal. 347. 11 People v. Flannelly, 128 Cal. 83; People v. Fredericks, 106 Cal. 554. THE JURY. 337 of either party. 12 It is a question of fact. 13 Impressions of guilt or innocence do not disqualify; there must be a fixed opinion, 14 but an unqualified opinion which requires proof to change is a disqualification, 15 whether for or against the defendant, 10 and notwithstanding the juror asserts he can try the case impartially, 17 and believes it is not an unqualified opinion, if in fact, it is. 18 A juror is not to be the judge of his own disqualification, and where he is chal- lenged as incompetent, he is not rendered competent by statement that he will try the case fairly. 19 Notwith- standing the fact that he says he could give a fair trial to the defendant, if he be disqualified, he should be rejected. 20 But the possession of an unqualified opinion is no longer a ground for a challenge, 21 if the juror has no feeling of malice or ill will to the defendant. 22 If it is founded on newspaper reports, public rumor, or common notoriety it does not disqualify where the juror declares that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters submitted to him. 23 But where a juror who has an opinion that the defendant is guilty, which it would require evidence to remove, he is disqual- ified, no matter what was the source of his knowledge of the facts of the case. The discretion given in applying the test whether newspaper reports preclude the impartiality of 12 People v. Wong Ark, 96 Cal. 125; Penal Code 1073. is People v. Wells, 100 Cal. 22. I* People v. Symonds, 22 Cal. 349; People v. McCauley, 1 Cal. 379; People v. Brown, 59 Cal. 354. is People v. Cottle, 6 Cal. 227; People v. Gehr, 8 Cal. 361; People v. Edwards, 41 Cal. 643; People v. Brother- ton, 43 Cal. 431;; People v. Murphy, 45 Cal. 142; People v. Welch, 49 Cal. 184; Penal Code 1073. 16 People v. Williams, 6 Cal. 207; People v. Hamilton, 62 Cal. 379. 17 People v. Gehr, 8 Cal. 359. is People v. Edwards, 41 Cal. 640. is People v. Woods, 29 Cal. 636. 20 People v. Weil, 40 Cal. 268. 21 People v. Cochran, 61 Cal. 548. 22 People v. Welch, 49 Cal. 174. 23 People v. Owens, 123 Cal. 482; People v. Durrant, 116 Cal. 179; People v. Wells, 100 Cal. 227; People v. Collins, 105 Cal. 511; People v. Fredericks, 106 Cal. 559; People v. Irwin, 77 Cal. 495. CRIMES--22 338 CRIMINAL LAW AND PROCEDURE. & juror, is not intended to deprive a defendant of the right to be tried by a jury which is in fact unprejudiced. 24 But an impression of guilt, that will require evidence to remove, where the juror is not conscious of any prejudice, does not disqualify. 25 Neither does a hypothetical opinion qualified upon the truth of the report upon which it is based. 26 When there is no evidence to support the finding of the court, that the juror's opinion is founded upon public rumor, etc , it will be reversed.- 7 The challenge for actual bias will be allowed when the juror, in addition to newspaper reports, has heard facts from persons he had known for years, who said they were true, and he believed them, and would commence the trial with an unfavorable opinion. 28 An opinion on the insanity defense when that is not the defense relied upon is not a disqualification. -' A juror who declared before the trial that "the prisoner should be taken out of jail by the people and hanged," is incompetent. 30 But accepting a juror, knowing him to be disqualified, estops the person from afterwards objecting thereto. 31 Challenges must be based upon the ground specified in the code, 82 and must state the specific ground therefor. A general chal- lenge is not good. 33 The decision of the court upon the challenge for actual bias is final, 34 and cannot be reviewed 24 People v. Suesser, 132 Cal. 631. 25 People v. Mahoney, 18 Cal. 181; People v. King, 27 Cal. 512. 26 People v. Williams, 17 Cal. 142; People v. King, 27 Cal. 512; People v. Brown, 59 Cal. 354; People v. Mc- Gungill, 41 Cal. 429. 27 People v. Wells, 100 Cal. 227. 28 People v. Miller, 125 Cal. 44. 29 People v. Collins, 105 Cal. 505. so People v. Plummer, 9 Cal. 299. si People v. Stonecifer, 6 Cal. 406; People v. Sanford, 43 Cal. 32. 32 People v. Darr, 61 Cal. 554. 33 People v. Owens, 123 Cal. 482; People v. Cochran, 61 Cal. 548; People v. Dick, 37 Cal. 277; People v. Ren- frow, 41 Cal. 37; People v. Reynolds, 16 Cal. 129; Peo- ple v. McGungill, 41 Cal. 429; People v. Durrant, 116 Cal. 196; People v. Buckley, 49 Cal. 241; People v. Cotta, 49 Cal. 166; People v. Walsh, 43 Cal. 447; People v. Hardin, 37 Cal. 259. 34 People v. Vasquez, 49 Cal. 560; People v. Taing, 53 Cal. 603; People v. Riley, 65 Cal. 108; People v. Gold- enson, 76 Cal. 340; People v. Bemmerly, 87 Cal. 120. THE JURY. 339 on appeal, 35 except where a question of law is presented, 36 as where exception is taken to the admission or rejection of testimony upon the trial of the challenge, 37 or where there is an entire absence of evidence to support the finding of the court that the opinion is based on rumor or common notoriety. 38 A failure to deny the challenge is a waiver of any exception to it. 39 Exemption from jury duty is a personal privilege and is not a ground for challenge. 40 IMPLIED BIAS. A challenge for implied bias may be taken for all or any of the following causes, and for no other: Consanguinity or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant ; stand- ing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employ- ment on wages ; being a party adverse to the defendant in a civil action, or having complained against or been accused by him in a criminal prosecution ; 41 having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death ss People v. Bemmerly, 87 Cal. 117; People v. Owens, 123 Cal. 482; People v. Ward, 77 Cal. 113; People v. Col- son, 49 Cal. 679; People v. Cochran, 61 Cal. 549; Peo- ple v. Murphy, 45 Cal. 137; People v. Fredericks, 106 Cal. 555; People v. Taing, 53 Cal. 602; People v. Gotta, 49 Cal. 166; People v. Vasquez, 49 Cal. 560; People v. Riley, 65 Cal. 108; People v. Brotherton, 43 Cal. 530; People v. Goldenson, 76 Cal. 346; People v. Atherton, 51 Cal. 495; People v. Durrant, 116 Cal. 199. se Penal Code 1170; People v. Scott, 123 Cal. 434; People v. Evans, 124 Cal. 206; People v. Fredericks, 106 Cal. 559; People v. Collins, 105 Cal. 511; People v. Owens, 123 Cal. 482; People v. Wells, 100 Cal. 227. ST People v. Boling, 83 Cal. 380. 38 People v. Wells, 100 Cal. 227. ss People v. Cochran, 61 Cal. 548. 40 People v. Owens, 123 Cal. 482. 41 Penal Code 1074. 340 CRIMINAL LAW AND PROCEDURE. is the subject of the indictment or information; 42 having served on a trial jury which has tried another person for the offense charged; having been one of a jury formerly sworn to Iry the same charge, and whose verdict was set aside, or which was discharged without a verdict, after the case was submitted to it; having served as a juror in a civil action brought against the defendant for the act charged as an offense ; 43 or if the offense charged be pun- ishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty ; 4 ' 1 although the punishment need not necessarily be death. 45 But mere opposition to capital punishment, with- out conscientious scruples against it, is not a disqualifica- tion. 46 The challenge for implied bias must specify the particular ground upon which it is based. 47 WHEN MADE. The disqualification must be urged at the time of the trial. It cannot be taken advantage of for the first time on appeal, 48 or after verdict rendered, 40 whether the grounds therefor were known before or not. 50 Neither can it be taken advantage of for the first time on motion for a new trial or in arrest of judgment, 51 nor after the jury is sworn. 52 To pass the juror is a waiver of right to challenge 42 Penal Code 1074; People v. Ebanks, 117 Cal. 666; Peo- ple v. Sehorn, 116 Cal. 509; People v. Young, 108 Cal. 13. 43 Penal Code 1074. 44 Penal Code 1074; People v. Ah Chung, 54 Cal. 398; People v. Goldenson, 76 Cal. 346. 4- r > People v. Majors, 65 Cal. 148. 46 People v. Stewart, 7 Cal. 141; People v. Gehr, 8 Cal. 361; People v. Murphy, 45 Cal. 143. 47 People v. Cotta, 49 Cal. 166; People v. Welch, 49 Cal. 178; People v. Cochran, 61 Cal. 548. 48 People v. Evans, 124 Cal. 207; People v. Chung Lit, 17 Cal. 321; People v. Mortimer, 58 Cal. 267. 40 People v. Fair, 43 Cal. 137; People v. Mortimer, 46 Cal. 120; People v. Samsels, 66 Cal. 100. so People v. Chung Lit, 17 Cal. 321; People v. Coffman, 24 Cal. 234; People v. Henderson, 28 Cal. 469; People v. Mortimer, 58 Cal. 267; People v. Sanfofd, 43 Cal. 29. si People v. Samsels, 66 Cal. 99. 52 People v. Goldenson, 76 Cal. 328. THE JURY. 341 for cause, 53 but the court may in its discretion permit the juror to be challenged after he is sworn. 6 * ADMONISHING THE JURY. The court must at each adjournment of the court, whether the jury is permitted to separate or is kept in charge of the officers, admonish the jury that it is their duty not to converse among; themselves, or with any one else, on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them. 55 The court cannot be too strict in complying with this statute. The failure to do so 1 is an objectionable prac- tice; yet where the failure occurs prior to the introduction of evidence it is not of sufficient importance to demand a reversal, 56 as some injury must be shown by the defend- ant. 67 MISCONDUCT OF JURORS DRINKING LIQUORS. Suitable food for the jury does not include intoxicating liquors. 58 Treating the jurors to liquors by an officer, 59 or drinking liquor by a juror, 60 without the permission of the court, or consent of the accused, is improper, and will war- rant a reversal of the verdict. 01 But where the drinking does no injustice to the accused, it is not misconduct suffi- cient to warrant a reversal. 62 It must be shown that the verdict was affected by the drinking, 63 or that some of the jurors were intoxicated, 64 or affected during the delibera- tions. 65 If a juror is intoxicated in court the defendant ss People v. Stonecifer, 6 Cal. 405. 54 People v. Owen, 123 Cal. 482. 55 Penal Code 1122. 56 People v. Coyne, 116 Cal. 295. 57 People v. Colmere, 23 Cal. 632. 58 People v. Gray, 61 Cal. 164; People v. Pratt, 78 Cal. 345; People v. Azoff, 105 Cal. 632. 59 People v. Myers, 70 Cal. 582. eo People v. Lee Chuck, 78 Cal. 317; People v. Deegan, 88 Cal. 607; People v. Leary, 105 Cal. 492. 61 People v. Gray, 61 Cal. 164. 62 People v. Leary, 105 Cal. 486; People v. Van Horn, 119 Cal. 333. es People v. Bemmerly, 98 Cal. 299. 64 People v. Van Horn, 119 Cal. 323. s People v. Deegan, 88 Cal. 602. 342 CRIMINAL LAW AND PROCEDURE. should object to his service before he retires to deliberate, 86 as drinking pending submission, when the juror is not affected thereby, is not misconduct. 67 READING NEWSPAPERS. Reading by jurors editorial comments on the trial, which would be at all likely to influence them in the performance of duty, will warrant a new trial, 68 and evidence is inadmis- sible that the jurors were not influenced by newspapers read. 69 Where the article might be calculated to inju- riously affect their minds, the presumption of improper influence arises and the jury will not be permitted to testify that they were not influenced thereby. 70 But the jurors may testify that they did not read newspapers, and adhered to the admonition of the court. 71 Their affidavits may be used also to explain or disprove their alleged misconduct. 72 SEPARATION OF THE JURY. Where the jury separates, without leave of the court, whereby they might have been improperly influenced, a new trial will be granted, 73 but a momentary separation before submission by reason of the fainting of a witness, 74 or a separation after the jury has retired to answer the calls of nature, in custody) of the sheriff, when no communication is had with any one, 75 or being kept securely guarded in sepa- rate rooms is not misconduct. 7li The consent of the defendant to allow the jury to separate is not a waiver of objection ee People v. Sansome, 98 Cal. 240; People v. Leary, 105 Cal. 493. 67 People v. Sansome, 98 Cal. 240; People v. Leary, 105 Cal. 498; People v. Van Horn, 119 Cal. 333. es People v. McCoy, 71 Cal. 395; People v. Stokes, 103 Cal. 199; People v. Leary, 105 Cal. 490. 69 People v. Stokes, 103 Cal. 193. 70 People v. Leary, 105 Cal. 490; People v. Azoff, 105 Cal. 634; People v. Conkling, 111 Cal. 62.8. 71 People v. Durrant, 116 Cal. 179. ".People v. Azoff, 105 Cal. 632. 73 People v. Backus, 5 Cal. 275; People v. Thornton, 74 Cal. 484; People v. Bonney, 19 Cal. 444. 7* People v. Lee, 17 Cal. 76. 75 People v. Bonney, 19 Cal. 447. 76 People v. Bush, 68 Cal. 635. THE JURY. 343 thereto. 77 Separation of the jury, not shown to be preju- dicial, is not ground for a new trial, 78 but when done with- out permission is presumed to be prejudicial. 79 A separa- tion after having retired to deliberate is irregular, 80 but a separation before the jury retires, when the presump- tion of improper influence is overcome by an affirmative showing to the contrary, is not error. 81 A separation during trial and before the jury retires to deliberate is within the discretion of the court, 82 but it is the duty of the court to admonish the jury upon such a separa- tion, and this duty should always be strictly complied with by the court. 83 It is not misconduct to leave the jury in a room accessible to strangers in the absence of an officer, 8 * nor to leave it in the charge of a deputy when the court ordered it in charge of the sheriff. 85 RECEIVING EVIDENCE OUT OF COURT. The jury has no right to receive evidence out of court. 1 Making experiments out of court with powder marks 77 People v. Hawley, 111 Cal. 78. It was held in People v. Kelly, 46 Cal. 356, that the court, with the consent of the defendant, might permit the jury to separate after delivering a sealed verdict to the sheriff. This seems to be a violation of section 1128 Penal Code, which provides that after retiring to deliberate upon their verdict the jury must be kept together. People v. Tarm Poi, 86 Cal. 230 seems also to hold that the defendant may consent to a separation. 78 People v. Tarm Poi, 86 Cal. 230; People v. Hawley, 111 Cal. 78; People v. Wheatley, 88 Cal. 114. 79 People v. Mitchell, 100 Cal. 328; People v. Stokes, 103 Cal. 193; People v. Creegan, 121 Cal. 558. so People v. Brannigan, 21 Cal. 339; People v. Leary, 105 Cal. 494; People v. Thornton, 74 Cal. 484; People v. Symonds, 22 Cal. 352; People v. Turner, 39 Cal. 375; People v. Lee Chuck, 78 Cal. 334. 81 People v. Symonds, 22 Cal. 349; People v. Wheatley, 88 Cal. 119; People v. Leary, 105 Cal. 494; People v. Colmere, 23 Cal. 633; People v. Hughes, 29 Cal. 262. 82 People v. Ebanks, 117 Cal. 652; People v. Chaves, 122 Cal. 140. 83 People v. Thompson, 84 Cal. 598. 8-t People v. Kelly, 46 Cal. 356; People v. Thornton, 74 Cal. 487. as People v. Hughes, 29 Cal. 258. i People v. Thornton, 74 Cal. 482; Penal Code 1181. 344 CRIMINAL LAW AND PROCEDURE. amounts to receiving evidence, 2 but the examination of the horns of a stolen cow, 3 or visiting the locus in quo does not.* Conversation with witnesses, while reprehensible, is not reversible error, 5 nor is misconduct shown by conversation of jurors with other persons, when no injustice is done the accused and the conversations are innnocent. 7 A mere pass- ing remark by a third person in the presence of the jurors, although detrimental to the accused and meriting punish- ment as for contempt, is not misconduct of the jury. 8 IMPEACHING THE VERDICT. A juror is not allowed to impeach his own verdict, 9 except where the jurors resorted to chance in arriving at it. 10 Neither can affidavits of others as to statements made by a juror be used for such purpose. 11 This is upon the ground of public policy, but a juror may be a witness, how- ever. 12 His affidavit may be used to support the verdict when attacked for misconduct of the jury, 13 and is conclu- sive; upon that question ; 14 or it may be used to disprove or explain any alleged misconduct, but not to show that the jurors were not influenced by admitted misconduct. 18 2 People v. Conkling, 111 Cal. 618. s People v. Tipton, 73 Cal. 405. * People v. Hope, 62 Cal. 291. 5 People v. Dunne, 80 Cal. 34. e People v. McCurdy, 68 Cal. 576. T People v. Boggs, 20 Cal. 432; People v. Symonds, 22 Cal. 353. . s People v. Brannigan, 21 Cal. 338; People v. Durrant, 116 Cal. 179. People v. Deegan, 88 Cal. 602; People v. Gray, 61 Cal. 164; People v. Baker, 1 Cal. 404; People v. Azoff, 105 Cal. 633; People v. Pratt, 78 Cal. 345; People v. Kloss, 115 Cal. 567; People v. Hughes, 29 Cal. 258; People v. Wyman, 15 Cal. 70; People v. Holmes, 118 Cal. 444; People v. Sprague, 53 Cal. 491. 10 People v. Soap, 127 Cal. 408; People v. Azoff, 105 Cal. 632. 11 People v. Azoff, 105 Cal. 632; People v. Kloss, 115 Cal. 579. 12 People v. Doyell, 48 Cal. 85. is People v. Hunt, 59 Cal. 430; People v. Goldenson, 76 Cal. 352; People v. Murray. 94 Cal. 217. i* People v. Goldenson, 76 Cal. 328; People v. Murray, 94 Cal. 217; People v. Dye, 62 Cal. 523; People v. Hunt, 59 Cal. 430. is People v. Azoff, 105 Cal. 632. THE JURY. 345 Every presumption is in favor of the regularity of the pro- cedure, and the due performance by the jury of their duty. Misconduct must be affirmatively shown 16 by positive and direct testimony. 17 An affidavit on information and belief is not sufficient. 18 Affidavits, depositions and oral testimony may be used on the motion. 19 Where it is sought to intro- duce newly discovered evidence of the misconduct of the jury, the affidavits must show what the evidence is. 20 The court may determine, in its discretion, whether the matter will be tried upon affidavits or oral testimony. 21 A motion to subpoena jurors, based upon affidavits, is addressed to the sound discretion of the court, but it is wise fully to investigate the matter. 22 Discussion among jurors before submission of the cause is not reversible error, where the defendant is not prejudiced, 23 and improper conduct of the jurors is not sufficient to set aside a verdict, if it appears the defendant was not prejudiced. 24 But where there is an admitted irregularity, the successful party must show that it did not influence the verdict, 25 as clear and undisputed proof of misconduct will always entitle to a new trial. 26 If the evidence is conflicting, the ruling of the trial court will not be disturbed. 27 is People v. Kramer, 117 Cal. 647; People v. Rodgers, 71 Cal. 565. i? People v. Williams, 24 Cal. 31; People v. Leary, 105 Cal. 494; People v. Kramer, 117 Cal. 650; People v. Rodgers, 71 Cal. 565. is People v. Tarm Poi, 86 Cal. 231. is People v. Sullivan, 129 Cal. 557; People v. Tucker, 117 Cal. 229. 20 People v. Winthrop, 118 Cal. 85. 21 People v. Tucker, 117 Cal. 229. 22 People v. Phelan, 123 Cal. 551. 23 People v. West, 73 Cal. 345; People v. Kramer, 117 Cal. 649. 2-4 People v. Dennis, 39 Cal. 625; People v. Moore, 41 Cal. 238; People v. Leary, 105 Cal. 494. as People v. Turner, 39 Cal. 370; People v. Lee Chuck, 78 Cal. 334; People v. Stokes, 103 Cal. 198. 2G People v. Lee Chuck, 78 Cal. 334. 27 People v. Dye, 62 Cal. 523; People v. Goldenson, 76 Cal. 352; People v. Murray, 94 Cal. 217. CHAPTER LVIII. WITNESSES. A witness is a person whose declaration under oath is received as evidence for any purpose, whether such declara- tion be made on oral examination or by deposition or affi- davit. 1 COMPETENCY. The competency of a witness must be strictly construed in favor of life, liberty and public justice. 2 All persons, with the exceptions hereafter named, who having organs of sense, can perceive and, perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded ; nor those who have been convicted of a crime ; 3 nor persons on account of their opinions on matters of religious belief. 4 The law rejects the testimony of persons of unsound mind at the time of their production for examination, and children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are exam- ined, or of relating them truly. 5 Competency of children as witnesses is not determined by age alone, but by the de- gree of their intelligence and understanding. It is essen- tial that they possess sufficient intelligence to receive impressions and have sufficient capacity to relate them cor- rectly and understand the nature and obligation of an oath. 9 1 Sec. 1878 C. C. P. 2 People v. Awa, 27 Cal. 638. 3 Sec. 1879 C. C. P. * Sec. 1879 C. C. P.; People v. Copsey, 71 Cal. 548. s Sec. 1880 C. C. P. People v. Bernal, 10 Cal. 67. WITNESSES. 347 Their competency is within the discretion of the court, and where the court examines as to competency on a previous trial, it is not necessary to re-examine. 7 It is to be deter- minded upon the voir dire or by evidence aliunde, if the party objecting adopt the former, he makes the witness his, and is concluded by his testimony, unless the question is still in doubt, when he may show incompetency by others. 8 Except with the consent of both, or in cases of criminal violence upon one by the other, neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties. 9 But the disability of the statute applies only when one or both are parties to the criminal action, 10 and does not extend to cases where the parties are living together as husband and wife without the existence of a marriage relation. 11 CREDIBILITY. A witness is presumed to speak the truth. 12 This pre- sumption, however, may be repelled by the manner in which he testifies, 13 by the character of his testimony, or by evi- dence affecting his character for truth, honesty or integrity, or his motives, or by contradictory evidence. 14 The credi- bility of the witness may be thus drawn in question, 15 but the jury are the exclusive judges of his credibility. 16 Where the defendant offers himself as a witness, in determining his credibility, it is proper to take into consideration the consequences, inducements and temptations which would ordinarily influence a person in his situation. 17 The court 7 People v. Baldwin, 117 Cal. 244; People v. Welsh, 63 Cal. 167; People v. Craig, 111 Cal. 460. s People v. Anderson, 26 Cal. 130. a Penal Code 1322. 10 People v. Langtree, 64 Cal. 256. 11 People v. Alviso, 55 Cal. 230. 12 Sec. 1963, subdivision 1, C. C. P. is Sec. 2061, subdivision 2, C. C. P. ^ Sec. 1847 C. C. P. is Sec. 1879 C. C. P. is Sees. 1847 and 2061 C. C. P.; People v. Hertz, 105 Cal. 660; People v. Shattuck, 109 Cal. 681; People v. Wal- lace, 89 Cal. 158; People v. Van Ewan, 111 Cal. 151. i' People v. Morrow, 60 Cal. 147; People v. Nichols, 62 Cal. 622; People v. O'Neal, 67 Cal. 379; People v. Mur- 348 CRIMINAL LAW AND PROCEDURE. should allow cross-examination for the purpose of testing the credibility of a witness. 18 For this purpose the witness may be cross-examined as to statements made to others showing animus; 19 as to his interest, bias, prejudice, ill feeling or hostility ; 20 as to relationship to the defendant, 21 or anything which tends to show interest or feeling.- 2 Thus the fact that the witness expects leniency for testi- fying, 23 his employment of special counsel, 24 and of detec- tives, may be shown,- 5 but not the amount paid, 28 nor the employment of counsel to defend himself in another criminal action in which the defendant was prosecuting witness. 27 Bias may be shown on cross-examination by proving that while the witness informed the prosecution of his knowledge, he refused to inform the defendant, 28 but not by asking him if he and defendant were not imprisoned together. 20 The immoral conduct of the defendant, when unconnected with the charge, is immaterial; 30 while the common experience of mankind is that there is rarely found united in the character of prostitutes any regard for ray, 86 Cal. 35; People v. Lang, 104 Cal. 368; People v. Cronin, 34 Cal. 191; People v. Faulke, 96 Cal. 20; People v. Newcomer, 118 Cal. 268; People v. Fehren- bach, 102 Cal. 394; People v. Hitchcock, 104 Cal. 486; People v. Van Ewan, 111 Cal. 149; People v. Ellen- wood, 119 Cal. 171. is People v. Bullard, 51 Cal. 551. is People v. French, 69 Cal. 169; People v. Murray, 85 Cal. 350; People v. Wong Chuey, 117 Cal. 628. 20 People v. Wong Chuey, 117 Cal. 624; People v. Lee Ah Chuck, 66 Cal. 662; People v. Ward, 105 Cal. 652; People v. Wasson, 65 Cal. 538; People v. Bird, 124 Cal. 32; People v. Anderson, 105 Cal. 33. 21 People v. Bush, 71 Cal. 602; People v. Wong Ah Foo, 69 Cal. 180. 22 People v. Gregory, 120 Cal. 16; People v. Thomson, 92 Cal. 506; People v. Gillis, 97 Cal. 544; People v. Wong Chuey, 117 Cal. 627. 23 People v. Langtree, 64 Cal. 256. 24 People v. Blackwell, 27 Cal. 65; People v. Lee Ah Chuck, 66 Cal. 662; People v. Gillis, 97 Cal. 544. 25 People v. Breen, 130 Cal. 72. 26 People v. Breen, 130 Cal. 72. 27 People v. Ryan, 108 Cal. 581. 28 People v. Shaw, 111 Cal. 171. 29 People v. Lynch, 122 Cal. 501; People v. Kuches, 120 Cal. 566. so People v. Tiley, 84 Cal. 651; People v. Wallace, 89 Cal. 162. WITNESSES. 349 truth, their testimony is not to be disregarded on that account. 81 Where the witness' own testimony shows she is a prostitute, it is proper to refuse permission to prove that she is such. 32 Eavesdropping does not discredit a wit- ness, though an offense at common law. 33 Neither does the conviction of a misdemeanor, 34 nor proof that he was confined in jail. 35 The fact that the prosecuting attorney is a witness is sufficient to show bias and prejudice against the defendant. 36 IMPEACHMENT. A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth, honesty and integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the wit- ness, or the record of the judgment, that he has been con- victed of a felony. 37 The court may put a reasonable limit on the number of witnesses to be called for purposes of impeachment. 38 A person convicted of a felony is not 'enti- tled to full credit as a witness, 39 and the evidence of an impeached witness may be disregarded. 40 CONVICTION OF A FELONY. The judgment against the witness of a prior conviction of a felony may be introduced, or he may be asked if he has not been so convicted, for the purpose of impeachment ; 41 but it is not permissible to ask the witness the nature of the felony. 42 The defendant, if a witness, may also be asked 31 People v. Ross, 115 Cal. 233. 32 People v. Reed, 48 Cal. 553; People v. Westlake, 62 Cal. 310. ss People v. Cotta, 49 Cal. 166. 34 People v. Griner, 124 Cal. 19. ss People v. Ah Who, 49 Cal. 32; People v. Silva, 121 Cal. 668. ss People v. Hamberg, 84 Cal. 468. 37 Sec. 2051 C. C. P. ss People v. Murray, 41 Cal. 66. 39 People v. McLane, 60 Cal. 412. 40 People v. Phillips, 70 Cal. 61. 41 People v. Sears, 119 Cal. 267. 42 People v. Putman, 129 Cal. 258; People v. Chin Hane, 108 Cal. 607. 350 CRIMINAL LAW AND PROCEDURE. if he has been convicted of a felony, but the question goes only to his credibility. 43 The verdict of the jury is a conviction, even though a judgment has not been entered. 4 * A pardon, however, removes all disability which follows the conviction of a felony ; but an executive act restoring to the rights of citizenship is not a pardon, and does not remove the legal infamy. 40 A witness cannot be impeached for want of religious belief. 40 Where it has been known that a witness was arrested for a crime, he may show the subse- quent disposal of the case. 47 If one party shows that a wit- ness was convicted of a felony, the other may show good character for truth and integrity. 48 But evidence of a par- ticular wrongful act cannot be used to impeach. 49 As, for instance, it cannot be shown that the witness has been con- victed of a misdemeanor, unless the record of the convic- tion shows moral turpitude or infamy, 50 nor that he has been guilty of immoral conduct, 51 or of living with a woman not his wife. 52 GENERAL REPUTATION. A witness may be impeached on the ground that his gen- 43 People v. Johnson, 57 Cal. 571; People v. Crowley, 100 Gal. 482. It was formerly held in People v. Reinhart, 39 Cal. 449, that a witness could not be examined as to a conviction of a felony, for the reason that the rec- ord is the best evidence. See also People v. Melvane, 39 Cal. 617; People v. McDonald, 39 Cal. 698; People v. Schenick, 65 Cal. 626, but such is no longer the rule. People v. Crowley, 100 Cal. 481; People v. Sears, 119 Cal. 267. 44 People v. Ward, decided Oct. 13, 1901. 45 People v. Bowen, 43 Cal. 439. 46 People v. Copsey, 71 Cal. 548. 47 People v. Chin Hane, 108 Cal. 597. 48 People v. Amanacus, 50 Cal. 233. 4 People v. Chin Hane, 108 Cal. 597; People v. Hainolin, 68 Cal. 101; People v. O'Brien, 96 Cal. 180; People v. Un Dong, 106 Cal. 88; People v. Arrighini, 122 Cal. 121; People v. Silva, 121 Cal. 668; People v. Mayes, 113 Cal. 618. so People v. Carolan, 71 Cal. 195. si People v. Crandall, 125 Cal. 129; People v. Silva, 121 Cal. 668; Sharon v. Sharon, 79 Cal. 673; People v. Un Dong, 106 Cal. 88; People v. Wells, 100 Cal. 462. 62 People v. Clarke, 130 Cal. 642; People v. Crandall, 125 Cal. 135. WITNESSES. 351 eral reputation for truth, honesty and integrity is bad. 83 The impeaching evidence is not restricted to the personal knowledge of the witness as to his reputation, 54 and per- sonal knowledge of his veracity is not sufficient; it must be general knowledge. 55 Neither is evidence of bad charac- ter admissible. The question is limited to general reputa- tion for truth, honesty and integrity ; it cannot be restricted to truth and veracity.. 56 It is not necessary to show that the witness would not believe him under oath, 57 and such a question is improper. 58 The impeaching evidence may be rebutted by a showing .of good character for truth and veracity, 59 but it is not admissible until good character is attacked. 60 The defendant may be impeached the same as any other witness by general reputation. 61 CONTRADICTORY STATEMENTS. A witness may also be impeached by evidence that he has made at other times, statements inconsistent with his pres- ent testimony ; 62 but before this can be done the statements must be related to him, with the 1 circumstances of the times, places and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. 03 And the question should use the particular words 53 People v. Markham, 64 Cal. 157; People v. Webster, 89 Cal. 573; People v. Hickman, 113 Cal. 80; People v. Silva, 121 Cal. 669; People v. Prather, 120 Cal. 666; People v. Bentley, 77 Cal. 7. 54 People v. Webster, 89 Cal. 572. 55 People v. Methvin, 53 Cal. 68; People v. Webster, 89 Cal. 574; People v. Ramirez, 56 Cal. 538. (so People v. Silva, 121 Cal. 668; People v. Hickman, 113 Cal. 86; People v. Yslas, 27 Cal. 631. " People v. Tyler, 35 Cal. 553; People v. Methvin, 53 Cal. 68. ss People v. Ramirez, 56 Cal. 533. 59 People v. Ah Fat, 48 Cal. 61. <<> People v. Bush, 65 Cal. 129; People v. Cowgill, 93 Cal. 596. 01 People v. Hickman, 113 Cal. 80; People v. Mayes, 113 Cal. 624; People v. Arnold, 116 Cal. 687; People v. Prather, 120 Cal. 666; People v. Gleason, 122 Cal. 372. 02 Sec. 2052 C. C. P.; People v. Ah Lee Chuck, 66 Cal. 662; People v. Roemer, 114 Cal. 51; People v. Durrant, 116 Cal. 179. es Sec. 2052 C. C. P.; People v. Garnett, 29 Cal. 622; Peo- ple v. Jenkins,' 56 Cal. 4; People v. Salorse, 62 Cal. 139; People v. Rushing, 130 Cal. 449; People v. Devine, 44 352 CRIMINAL LAW AND PROCEDURE. of the statement if such a thing is possible. 04 It must appears that the contradictory statements were directly in contradiction, and not by inference where another inference might be drawn in favor of consistency. 65 He may be cross-examined whether he has not given a different account. 00 After the witness is impeached by showing he has made contradictory statements, he cannot be sustained by showing that he has made to others the same statements as those to which he testified. But it may be introduced to show that it is not a fabrication of late date. 67 He may be impeached by evidence of statements made as to his motive for the prosecution. 08 After the foundation has been laid for the impeachment by showing the time, place, circumstances and the persons to whom the statements were made, the deposition before a coroner's jury, 09 or an affidavit made in a civil case may be used to contradict them. 70 When a witness gives a negative answer to the impeaching question which is neither favorable nor unfavorable to either side, it cannot be shown that he made contradictory state- ments to others. 71 The defendant may be impeached in the same way as other witnesses. 72 As, for instance, by a deposition at a preliminary examination. 73 But only con- tradictory parts are admissible. 74 The time of the state- Gal. 452; People v. Bosquet, 116 Cal. 80; People v. Lam- bert, 120 Cal. 176; People v. Turner, 65 Cal. 540; Peo- ple v. Nonella, 99 Cal. 333; People v. Chin Hane, 108 Cal. 597. e* People v. Lee Ah Yute, 60 Cal. 95; People v. Nonella, 99 Cal. 335. 65 People v. Collum, 122 Cal. 186. ee People v. Robles, 29 Cal. 44; People v. Ebanks, 117 Cal. 665. 67 People v. Doyell, 48 Cal. 85. es People v. Gardner, 98 Cal. 127; People v. Lambert, 120 Cal. 176. 69 People v. Devine, 44 Cal. 452; People v. Lambert, 120 Cal. 175; People v. Irwin, 77 Cal. 494; People v. Bush- ton, 80 Cal. 160. 70 People v. Samonset, 97 Cal. 448. 71 People v. Goodwin, 123 Cal. 374. 72 People v. Beck, 58 Cal. 212; People v. Hickman, 113 Cal. 87; People v. Prather, 120 Cal. 666; People v. O'Brien, 66 Cal. 604; People v. Rozelle, 78 Cal. 94; People r. Crowley, 100 Cal. 481. 73 People v. Hawley, 111 Cal. 78. 7* People v. Lambert, 120 Cal. 170. WITNESSES. 353 ment need not be specially definite, when otherwise the con- versation is sufficiently identified. 75 Impeachment may be founded upon the question as to whether the defendant had endeavored to get witnesses to prove an alibi. 76 If the statements be in writing, they must be shown to him before any question is put concerning them; 77 but contradictory statements not in writing need not be read to him. 78 The right of examination of the testimony is one of justice, 79 for the purpose of explaining it, if possible. 80 Defendant may be impeached by testimony in his own behalf. 81 Not- withstanding the question tends to prove another offense, if it is for the purpose of laying the foundation for impeach- ment as to contradictory statements, it is proper. 82 There is no inflexible rule as to the form of question on impeach- ment; it is only necessary that the proper foundation be laid. 83 A recognized rule, or rather qualification of the rule, governing the impeachment of the credit of a witness by proof of contradictory statements elsewhere made by him is that the matter involved in the supposed contradic- tion must not itself be merely collateral in its character but must be relevant to the issue being tried. 84 Where he is examined as to collateral and irrelevant matters not in issue in the case, his answers thereto binds the party asking the questions. 85 75 People v. Bosquet, 116 Cal. 75; People v. Lambert, 120 Cal. 176. 76 People v. Louie Foo, 112 Cal. 17. 77 Sec. 2052 C. C. P.; People v. Ching King Chang, 74 Cal. 389. TS People v. Kruger, 100 Cal. 523. 79 People v. Shaver, 120 Cal. 354. so People v. Lambert, 120 Cal. 170; People v. Shaver, 120 Cal. 354. si People v. Mayes, 113 Cal. 618; People v. Gleason, 122 Cal. 372. 82 People v. Little Pete, 123 Cal. 373. ss People v. Roberts, 122 Cal. 377. 84 People v. Furtado, 57 Cal. 346; People v. Webb, 70 Cal. 121; People v. Chin Mook Sow, 51 Cal. 597; People v. Kalkman, 72 Cal. 212; People v. Dice, 120 Cal. 189; People v. Collins, 105 Cal. 504; People v. Devine, 44 Cal. 452; People v. Dye, 75 Cal. 108; People v. Tiley, 84 Cal. 651; Faulkner v. Rondoni, 104 Cal. 148. ss People v. McKellar, 53 Cal. 65; People v. Bell, 53 Cal. 120; People v. Durrant, 116 Cal. 211; People v. Webb, CRIMES--23 354 CRIMINAL LAW AND PROCEDURE. IMPEACHING OWN WITNESSES. The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contra- dict him by other evidence, and may also show that he has made at other times, statements inconsistent with his pres- ent testimony. 1 The party calling cannot impeach the wit- ness by proof of declarations made contradictory to the tes- timony given 2 unless he has been actually surprised by such testimony, 3 and the evidence is damaging to his cause. 4 Even where the testimony of a party's own witness is unex- pected, if it is not unfavorable, it cannot be contradicted. 5 A party cannot impeach his own witnesses by evidence of his declarations produced contrary to a stipulation as to the testimony of such witness. 6 PRIVILEGE OF WITNESSES. A witness need not give an answer which will have a tendency to subject him to punishment for a felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for a felony. 7 Where the answer to the question would subject the witness to a criminal punish- ment, he is not privileged from answering, on the ground that the answer would disgrace him, but solely that it will incriminate him ; in other words, the grounds taken for the' 70 Cal. 121; People v. Crandall, 125 Cal. 129; People v. Tiley, 84 Cal. 651; People v. Worthington, 105 Cal. 166. 1 Sec. 2049 C. C. P. 2 People v. Wallace, 89 Cal. 158; In re Kennedy. 104 Cal. 429. s People v. Johnson, 131 Cal. 511; People v. Crespi, 115 Cal. 50. 4 People v. Mitchell, 94 Cal. 550; People v. Conkling, 111 Cal. 624. People v. De Witt, 68 Cal. 586; People v. Conkling, 111 Cal. 624; People v. Wallace, 89 Cal. 164; People v. Mitchell, 94 Cal. 556; People v. Jacobs, 49 Cal. 384; People v. Crespi, 115 Cal. 55. 6 People v. Hawes, 98 Cal. 648. v Sec. 2065 C. C. P. WITNESSES. 355 privilege claimed must be specified, and the witness is con- fined to the grounds named. 8 The rule does not extend to cases where the law protects a witness from the prosecu- tion if he testifies. 9 If he has the protection of the statute that the testimony cannot be used against him, he is bound to answer. 10 Where a witness with knowledge of his right testifies to a fact, he can be examined by the opposite party fully. 11 He is not the judge of whether the evidence will tend to incriminate him, but the court must decide. 12 The right to call the witness is not affected by the fact that the witness may exercise his privilege and refuse to testify. 13 He cannot claim the privilege and refuse to be sworn, but may refuse to answer -questions after he is sworn which will incriminate him ^ in other words, he cannot claim the privilege until the question is put to him. 14 It is only when the question is not pertinent to the issue that the wit- ness may assign, as a refusal. for the answer, that it tends to disgrace him. 13 The witness must claim the privilege himself; the defandant cannot do it for him. 16 The defend- ant when testifying in his own behalf, is not entitled to a greater privilege than any other witness. 17 The privilege is not waived, however, by the witness testifying to the same fact elsewhere. 18 DEFENDANT AS A WITNESS. No person can be compelled, in a criminal action, to be a witness against himself ; 19 but if the defendant offers himself s Ex parte Rowe, 7 Gal. 184. o People v. Cohen, 104 Cal. 524; People v. Sternberg, 111 Gal. 8. 10 Ex parte Rowe, 7 Cal. 184. 11 People v. Freshour, 55 Cal. 375. 12 Overend v. Superior Court, 131 Cal. 280; Ex parte Stice, 70 Cal. 53; In re Rogers, 129 Cal. 468; Ex parte Zee- handelaar, 71 Cal. 238. is People v. Plyler, 121 Cal. 160; Ex parte Stice, 70 Cal. 51. 14 Ex parte Stice, 70 Cal. 51; People v. Plyler, 121 Cal. 160. is Ex parte Rowe, 7 Cal. 184. ifi People v. Rodundo, 44 Cal. 538. i- People v. Reinhart, 39 Cal. 449; People v. Beck, 58 Cal. 212; People v. O'Brien, 66 Cal. 604; People v. Rozelle, 78 Cal. 94. is Overend v. Superior Court, 131 Cal. 280. 19 Penal Code 688. 356 CRIMINAL LAW AND PROCEDURE. as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. His neglect or refusal to be a witness cannot in any manner prejudice him, nor be used against him on the trial or proceeding. 20 The fact that the defendant offers himself as a witness in his own behalf does not modify or change the rules as to the limits of cross-examination; he cannot be made a witness against himself without his con- sent. 21 It is proper to consider the relationship and situa- tion under which he testifies ; the consequences to him from the result and the inducements to influence his own posi- tion, 22 and the jury may be cautioned as to his interest as bearing on the weight of his evidence. 23 The defendant may be cross-examined as to a prior conviction of a felony or as to any matter tending to discredit him. 24 But it must be limited to the matters brought out on the direct examina- tion. 25 It may be had for two purposes, to show express malice, and to lay the foundation for impeachment. 28 The right should be liberally construed. 27 The court is not 20 Penal Code 1323. 21 People v. McGungill, 41 Cal. 429; People v. Rozelle, 78 Cal. 93; People v. Sanders, 114 Cal. 238. 22 People v. Morrow, 60 Cal. 147; People v. Wheeler, 65 Cal. 77; People v. O'Neal, 67 Cal. 379; People v. Fehren- bach, 102 Cal. 402. 23 People v. O'Neal, 67 Cal. 378; People v. Fehrenbach, 102 Cal. 402; People v. Wheeler, 65 Cal. 78; People v. Ferry, 84 Cal. 31. 24 People v. Arnold, 116 Cal. 387; People v. Meyer, 75 Cal. 383; People v. Rozelle, 78 Cal. 94; People v. Dole, 122 Cal. 497. 25 People v. Rozelle, 78 Cal. 84; People v. O'Brien, 66 Cal. 602; People v. Gallagher, 100 Cal. 475; People v. Crow- ley, 100 Cal. 481; People v. Warner, 117 Cal. 639; Peo- ple v. Baird, 104 Cal. 462; People v. Deegan, 88 Cal. 602; People v. Yeaton, 75 Cal. 416; People v. Brown, 76 Cal. 574; People v. Wong Ah Leong, 99 Cal. 442; Peo- ple v. Un Dong, 106 Cal. 88; People v. Bishop, 81 Cal. 113; People v. Sehorn, 116 Cal. 504; People v. Miller, 33 Cal. 99; People v. Wong Ah L/eong, 99 Cal. 442; Peo- ple v. Johnson, 57 Cal. 573; People v. Holmes, 118 Cal. 444; People v. Wong Chuey, 117 Cal. 624; People v. Valiere, 123 Cal. 576; People v. Denby, 108 Cal. 55. a People v. Dennis, 39 Cal, 625; People v. Crowley, 100 Cal. 481; People v. Rozelle, 78 Cal. 94. 27 People v. Westlake, 124 Cal. 452; People v. Gallagher, 100 Cal. 476. WITNESSES. 357 allowed that discretion as to the extent of the scope of the cross-examination which it is permitted to exercise in the examination of other witnesses, but as to all matters about which he was examined in chief he may be cross-examined as fully as any other witness. 28 The defendant has the constitutional right to be protected from forced examination as to any matters concerning which he has not voluntarily testified in his own behalf, and no evidence can be wrung from him. 29 Offering himself as a witness does not waive the right, nor alter or change the rule against making him- self a witness against himself. 30 Wide latitude should be granted, however, in murder cases where the defendant denies the killing. 31 The defendant may be asked on cross- examination how the deceased could have reached him with a knife at the distance between them, 32 and it may be shown that the conduct of the defendant was inconsistent with his direct testimony. 33 And where the defendant admits that he was in the neighborhood of the place where the crime was committed at the time, he may be asked his business there. 34 If he testifies as to his birth, parentage, education, etc., he may be asked whether he was ever arrested before. 36 COMPELLING ATTENDANCE. A bench warrant for absent witnesses will not be issued without a showing that the evidence expected from them is material to the defense. 30 An order for the attendance of witnesses in the state prison does not issue as a matter as People v. O'Brien, 96 Cal. 171; People v. Crowley, 100 Cal. 482; People v. Arrighini, 122 Cal. 126; People v. Dole, 122 Cal. 486; People v. Gallagher, 100 Cal. 466; People v. Gordon, 103 Cal. 572; People v. Bidleman, 104 Cal. 615; People v. Mayes, 113 Cal. 624; People v. Durrant, 116 Cal, 219. 29 People v. Arrighini, 122 Cal. 126. so People v. Gallagher, 100 Cal. 466; People v. McGungill, 41 Cal. 429; People v. Devine, 44 Cal. 452; People v. Arrighini, 122 Cal. 121. si People v. Mullings, 83 Cal. 138. 32 People v. Gleason, 127 Cal. 323. 33 People v. Bidleman, 104 Cal. 608. a* People v. Clark, 106 Cal. 32. 35 People v. Fong Ching, 78 Cal. 169. se People v. Marseiler, 70 Cal. 98. 358 CRIMINAL LAW AND PROCEDURE. of right ; the 1 court may refuse it in its discretion, and order their depositions taken. 37 The order compelling the attend- ance of such a witness cannot be procured by mandamus. 88 Such a proceeding is in the nature of a writ of habeas corpus ad tcstificandum, and there must be a showing of good faith, etc. 89 EXCLUSION OF WITNESS DURING TRIAL. If either party requires it, the judge may exclude from the court room any witness of the adverse party, not at the. time under an examination, so that he may not hear the tes- timony of other witnesses. 40 The exclusion of a witness during a trial rests in the sound discretion of the court, 41 and the court may make exceptions to the rule. 42 A dis- obedience of the order of court excluding the witness can- not be punished by rejecting the testimony of such wit- ness. 43 UNDERTAKING FOR WITNESS. 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 at the court to which the depositions and statements are to be sent. 44 Infants and married women who are material witnesses against the defendant, also may be required to procure sureties for their appearance. 45 A witness can be required to give an undertaking for his appearance only when he has ST People v. Putman, 129 Cal. 258; Willard v. Superior Court, 82 Cal. 456; Willard v. Superior Court, 9? Cal. 486. ss Willard v. Superior Court, 82 Cal. 456; Willard v. Superior Court, 92 Cal. 485. s Willard v. Superior Court, 92 Cal. 482. 40 Sec. 2043 C. C. P. People v. Garnett, 29 Cal. 622. 42 People v. Sam Lung, 70 Cal. 517; People v. Hong Ah Duck, 61 Cal. 387; People v. McCarty, 117 Cal. 65. 43 People v. Boscovitch, 20 Cal. 436. 44 Penal Code 879. 45 Penal Code 880. WITNESSES. 359 been examined before the magistrate. 46 And upon his fail- ure to give an undertaking to appear, his' deposition should be taken conditionally. 47 EXAMINATION OF WITNESSES. The court must exercise a reasonable control over the mode of interrogation, so as to make it as rapid, as distinct, as little annoying to the witness, and as effective for the extraction of the truth as may be; but subject to -this rule the parties may put such pertinent and legal questions as they see fit. The court, however, may stop the production of further evidence upon any particular point when the evi- dence upon it is already so full as to preclude reasonable doubt. 48 The examination of a witness by the party pro- ducing him is denominated the direct examination ; the examination of the same witness, upon the same matter, by the adverse party, the cross-examination. The direct examination must be completed before the cross-examina- tion begins, unless the court otherwise direct. 49 Cross- examination on immaterial matters may be stopped by the trial court. 50 A witness may be 'interrogated as to any matters which tend to show bias, 51 or animus, 32 and cross- examination of the witnesses on the part of the prosecution should be allowed wide latitude, 53 but where cross-examina- tion is improperly rejected, it is not reversible if the error was immaterial. 54 For the purpose of proving animus it 46 Ex parte Shaw, 61 Cal. 58. 47 People v. Lee, 49 Cal. 37, and Penal Code 882. This is authorized by sec. 13 Art. I, Constitution which pro- vides that "The legislature shall have power to pro- vide for the taking, in the presence of the party accused and his counsel of depositions of witnesses in criminal cases, other than cases of homicide, when there is reason to believe that the witness, from inability or other cause, cannot attend at the trial." 48 Sec. 2044 C. C. P. *9 Sec. 2045 C. C. P. so People v. Durrant, 116 Cal. 182. si People v. Benson, 52 Cal. 380; People v. Wasson, 65 Cal. 538; People v. O'Brien, 66 Cal. 604. 52 People v. Worthington, 105 Cal. 166. 53 People v. Baldwin, 117 Cal. 244. 54 People v. Greening, 102 Cal. 384; People v. Prather, 120 Cal. 665. 360 CRIMINAL LAW AND PROCEDURE. may be shown on cross-examination that the witness had caused defendant to be> arrested and tried, and that he was acquitted, but on redirect examination he cannot be per- mitted to state facts in connection with the charge. 55 If a witness is cross-examined on conflicting statements made by him, he is entitled to have the same read to him before being interrogated thereon. 50 Redirect examination must be con- fined to evidence given on the cross-examination, 57 but a witness may be recalled for further examination within the discretion of the court, 58 or he may be withdrawn to connect his testimony. 59 On redirect examination he may be allowed to remove inferences left by the cross-examina- tion. 60 The recalling of witnesses, 01 and the reopening of the case for further evidence, is within the discretion of the court. 62 The court may allow testimony to be repeated, 63 and may receive evidence on the faith of the counsel's state- ment that he will subsequently show its relevancy, but if it is not connected, the court should strike it out and caution the jury against considering it. 04 55 People v. Webster, 89 Cal. 572. so People v. Lee Chuck, 78 Cal. 318. 57 People r. Van Ewan, 111 Cal. 144. ss People v. McNamara, 94 Cal. 509. as People v. Prather, 120 Cal. 660. eo People v. Smallman, 55 Cal. 185. ei People v. Moan, 65 Cal. 532. 2 People v. Ross, 65 Cal. 104; People v. Christensen, 85 Cal. 570; People v. Benc, 130 Cal. 159; People v. Keith, 50 Cal. 137. 63 People v. Clark, 84 Cal. 573; People v. Emerson, 130 Cal. 562. * People v. McLean, 84 Cal. 480. CHAPTER LIX. Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact. 1 Proof is the effect of evidence, the establishment of a fact by evidence. 2 The law does not require demonstrations ; that is, such degree of proof as, excluding possibility or error, produces absolute certainty, because such proof is rarely possible. Moral certainty only is required, or that degree of proof which produces con- viction in an unprejudiced mind. 3 CIRCUMSTANTIAL EVIDENCE. There are two classes of evidence recognized and admit- ted in courts of justice, upon either of which the jury may lawfully find an accused guilty of crime. One is direct or positive testimony of an eye-witness to the commission of the crime, and the other is proof by testimony of a chain of circumstances pointing sufficiently strong to the commis- sion of the crime by the defendant, and which is known as circumstantial evidence. Such evidence may consist of admissions by the defendant, plans laid for the commission of the crime, such as putting himself in a position to com- mit ; threats previous to the commission of the crime tending to show hostility, etc. ; in short, any acts, declarations or circumstances admitted in evidence tending to connect the defendant with the commission of the crime. 4 Circumstan- 1 Sec. 1823 C. C. P. 2 Sec. 1824 C. C. P. 3 Sec. 1826 C. C. P. 4 People v. Neary, 104 Cal. 373; People v. Anthony, 56 Cal. 397; People v. Morrow, 60 Cal. 142. 362 CRIMINAL LAW AND PROCEDURE. tial evidence includes any fact which may tend to prove the issue, 5 or connect the accused with the commission of the crime. 6 It is essential that in the chain of facts relied upon each fact must be established to a moral certainty or beyond* a reasonable doubt. 7 A reasonable doubt as to any link in the chain of circumstantial evidence entitles the defendant to an acquittal. 8 The proof must be consistent not only with the guilt of the defendant, but it must be inconsistent with any other rational theory. 9 All the circumstances should not only tend to, but should establish the defendant's guilt. 10 But it need not be absolutely incompatible with innocence and incapable of explanation upon other reasonable hypothe- sis than guilt. 11 And where the circumstantial evidence is persuasive of guilt, a conviction on it will not be disturbed. 12 But the verdict is not dependable upon a superior number of probabilities on either side. 13 It need not exclude every other hypothesis than guilt. 14 Where the chain of circum- stances leads to two opposite conclusions, one of which must be wrong, it does not necessarily imply the defendant's innocence, as both may lead to conclusions of his guilt. 15 In order to convict, the circumstances must be such as to pro- s People v. Sullivan, 129 Cal. 557; People v. Hill, 123 Cal. 571. People v. Rolfe, 61 Cal. 540; People v. Armstrong, 114 Cal. 574; People v. Ebanks, 117 Cal. 663. i People v. Phipps, 39 Cal. 326; People v. Ah Chung, 54 Cal. 403; People v. Smith, 106 Cal. 78. s People v. Smith, 106 Cal. 73. People v. Strong, 30 Cal. 151; People v. Davis, 64 Cal. 441; People v. Lachanais, 32 Cal. 435; People v. Ram- irez, 56 Cal. 538; People v. Dick, 32 Cal. 213; People v. Murray, 41 Cal. 67; People v. Gosset, 93 Cal. 644; People v. Eckman, 72 Cal. 582; People v. Ward, 105 Cal. 342; People v. Padillia, 42 Cal. 539; People v. Cronin, 34 Cal. 191; People v. Morrow, 60 Cal. 146; People v. Hardisson, 61 Cal. 380; People v Sansome, 84 Cal. 456; People v. Shuler, 28 Cal. 490. 10 People v. Paulsell, 115 Cal. 6. " People v. Murray, 41 Cal. 66; People v. Eagan, 116 Cal 287; People v. Nelson, 85 Cal. 421; People v. Rushing; 130 Cal. 449; People v. Dole, 122 Cal. 495. 12 People v. Gibson, 106 Cal. 458. is People v. Sansome, 84 Cal. 449; People v. Dilwood, 94 Cal. 90. i* People v. Ward, 105 Cal. 335. is People v. Clarke, 130 Cal. 642. EVIDENCE. 363 duce nearly the same degree of certainty as direct evidence. 18 There is nothing in its nature which renders it any less reliable than other classes of evidence, 17 and the court should not instruct the jury that circumstantial evidence is not likely to be fabricated, or make any declarations as to the relative probative force of direct and circumstantial evi- dence. 18 If it produces in the minds of the jury a conclusion of defendant's guilt beyond a reasonable doubt, is is suf- ficient. 10 Circumstantial evidence may be rebutted by evi- dence tending to fasten the crime on some other person than defendant. 20 The court may instruct the jury against attaching too much importance to certain cases called to its attention by counsel for defendant showing instances in which innocent persons have been convicted upon circum- stantial evidence, 21 but the jury has a right to consider that innocent men have been convicted. 22 ACCOMPLICE. An accomplice is an accessory before the fact and not after. 23 Thus a party receiving stolen goods is not an accom- plice with 1 the thief, 24 and cannot be convicted of larceny as is People v. Padillia, 42 Cal 535. IT People v. Urquidas, 96 Cal. 239; People v. Durrant, 116 Cal. 179; People v. Morrow, 60 Cal. 142. is People v. Vereneseneckockockhoff, 129 Cal. 497. This case overrules: People v. Cronin, 34 Cal. 191; People v. Morrow, 60 Cal. 142; People v. Urquidas, 96 Cal. 241; People v. Durrant, 116 Cal. 179; People v. Hardisson, 61 Cal. 378; where in each case the court instructed the jury as to the relative value of direct and circum- stantial evidence. Indeed, the Cronin case has been overruled so often and upon so many different points that about the only thing that has been left is the suf- ficiency of the indictment for murder. 19 People v. Kelly, 28 Cal. 424; People v. Kerrick, 52 Cal. 447; People v. Carrillo, 70 Cal. 645; People v. Ferry, 84 Cal. 34; People v. Beck, 58 Cal. 213; People v. Hardis- son, 61 Cal. 380. 20 People v. Myers, 70 Cal. 582; People v. Sanders, 114 Cal. 234. 21 People v. Ah Fook, 64 Cal. 380. 22 People v. Travers, 88 Cal. 237; People v. Cronin, 34 CaL 191. 23 People v. Collum, 122 Cal. 186. 24 People v. Clausen, 120 Cal. 381. 364 CRIMINAL LAW AND PROCEDURE. an accessory after the fact. 25 The betting at a game does not make the person an accessory to the crime of carrying on such game. 20 The evidence of the acts of an accomplice are admissible, even though he is not on trial. 27 The state- ments of an accomplice are also admissible, 28 but not state- ments made extra judicially and outside of defendant's pres- ence and not in furtherance of the object of the criminal enterprise ; 29 nor his declarations made after the offense was consummated. 30 Neither is the flight of the accomplice admissible to rebut evidence of self-defense, nor does his hiding tend to disprove an alibi of defendant. 31 The flight is not a part of the res gestae and is not admissible against the accomplice, unless it is in furtherance of the crime. 82 Neither is the acquittal of the accomplice 1 of the charge evi- dence of his not having been an accomplice. 33 An opinion of the accomplice is not admissible. 34 CORROBORATION OF THE TESTIMONY, OF AN ACCOMPLICE. A defendant cannot be convicted upon the uncorroborated testimony of an accomplice. 35 There must be other evidence which tends to prove defendant's complicity in the crime, 36 .aside from, and without the aid of the testimony of the 25 People v. Stakem, 40 Cal. 599. 26 Ex parts Ah Yem, 53 Cal. 246. 27 People v. Murphy, 39 Cal. 52. 28 People v. Garcia, 63 Cal. 19. 2 People v. Moore, 45 Cal. 19; People v. Stanley, 47 Cal. 118; People v. Oldham, 111 Cal. 653. so People v. English, 52 Cal. 212; People v. Aleck, 61 Cal. 139; People v. Gonzales, 71 Cal. 577; People v. Irwin, 77 Cal. 505. si People v. Lee Chuck, 78 Cal. 317. 32 People v. Stanley, 47 Cal. 113; People v. Collins, 48 Cal. 278; People v. Wong Ah Ngow, 54 Cal. 153; Peo- ple v. Ramirez, 56 Cal. 537; People v. Welch, 63 Cal. 168; People v. Giancoli, 74 Cal. 644; People v. Irwin, 77 Cal. 506. sa People v. Creegan, 121 Cal. 554; People v. Mitchell, 100 Cal. 328. 3* People v. Mitchell, 100 Cal. 328. SB People v. Smith, 98 Cal. 218; People v. Main, 114 Cal. 634; People v. Koening, 99 Cal. 574. People v. Ribolsi, 89 Cal. 492. EVIDENCE. 365 accomplice. 37 In order to convict upon the testimony of an accomplice with corroborating evidence, the corroboration must connect the defendant with the offense charged, and not merely show the fact of the commission of the crime by some one. 38 He must be corroborated to show the existence of a conspiracy, and that the defendant was a member of that conspiracy. 39 The corroborating evidence need not tend to establish the precise facts testified to by the accom- plice, 40 and strong corroboration is not necessary. 41 Admis- sions made by defendant are sufficient, 42 and so is the rinding of the stolen property on the accused sufficient to connect him with the burglary. 43 But the corroboration must do more than tend to raise a mere suspicion of guilt. 44 It must tend to connect the defendant with the crime, 45 but it need not be corroborated in every detail. 46 Evidence of the accomplice is inadmissible to impeach the defendant. 47 The court will permit wide latitude in the cross-examination of an accomplice. 48 The sufficiency of the evidence is a ques- tion for the jury. 49 And also it is for the jury to determine 37 People v. Ames, 39 Cal. 403; People v. Melvane, 39 Cal. 615; People v. Clough, 73 Cal. 351; People v. McLean, 84 Cal. 482; People v. Cregan, 121 Cal. 554; People v. Koening, 99 Cal. 576; People v. Warren, 39 Cal. 661. as People v. Eckert, 16 Cal. Ill; People v. Ames, 39 Cal. 405. ss People v. Compton, 123 Cal. 403; People v. Irwin, 77 Cal. 502. 40 People v. Cloonan, 50 Cal. 449; People v. Grundell, 75 Cal. 305; People v. Barker, 114 Cal. 620. 41 People v. Cleveland, 49 Cal. 577. 42 People v. Grundell, 75 Cal. 305; People v. Zimmerman, 65 Cal. 307. 43 People v. Getty, 49 Cal. 58. 44 People v. Thompson, 50 Cal. 480; People v. Ames 39 Cal. 403; People v. McLean, 84 Cal. 482; People v. Smith, 98 Cal. 218; People v. Main. 114 Cal. 634. 45 People v. McLean, 84 Cal. 480; People v. Sternberg, 111 Cal. 6; People v. Clough, 73 Cal. 348; People, v. Lynch, 122 Cal. 501; People v. Barker, 114 Cal. 620; People v. Ribolsi, 89 Cal. 498. 46 People v. Kunz, 73 Cal. 313; People v. Grundell, 75 Cal. 303; People v. Barker, 114 Cal. 620. 47 People v. Conkling, 111 Cal 616; People v. Collum, 122 Cal. 188. 48 People v. Williams, 18 Cal. 187. 49 People v. Barker, 114 Cal. 617; People v. Whelan, 117" Cal. 561. 366 CRIMINAL LAW AND PROCEDURE. whether the witness was an accomplice. 50 The testimony of an accomplice should be viewed with distrust and oral admis- sions of the party received with caution, 51 but a person who feigns to be an accomplice, under the direction of an officer, and acts for the purpose of ferreting out crime, is not an accomplice and need not be corroborated. 52 Evidence of the defendant attempting to alien witinesses against him is admissible as corroboration, but the rule is otherwise as to similar attempts by third persons. 53 When the testimony is shown to correspond with that of other witnesses or com- port with facts otherwise proved, the corroboration is suffi- cient. 54 Evidence of the condition in which an accomplice was found on the day after an assault to rob is admissible against the prisoner after there is evidence tending to con- nect him with the accomplice. 53 CONSPIRACY. A conspiracy is an agreement between two or more per- sons to do an unlawful act, or to do a lawful act unlaw- fully. 56 No agreement, except to commit a felony upon the person of another, or to commit arson, or burglary, amounts to a conspiracy, unless some act, beside such agreement, be done to effect the object thereof, by one or more of the parties to such agreement. 57 Co-conspirators are jointly lia- ble for the acts of each other done in pursuance of the con- spiracy. 58 Where several join in a crime and resisting arrest therefor, whatever is said or done in the furtherance so People v. Bolanger, 71 Cal. 17; People v. Creegan, 121 Cal. 558; People v. Kraker, 72 Cal. 459. 51 People v. Bonney, 98 Cal. 278.1 52 People v. Barric, 49 Cal. 342; People v. Bolanger, 71 Cal. 17; People v. Fong Ching, 78 Cal. 169; People v. Farrell, 30 Cal. 316. 53 People v. Dixon, 94 Cal. 255; People v. Sternberg, 111 Cal. 16; People v. Wong Chuey, 117 Cal. 628. 54 People v. Hong Tong, 85 Cal. 171; People v Sternberg, 111 Cal. 6; People v. Armstrong, 114 Cal. 574; People v. Grundell, 75 Cal. 3(U. 55 People v. Ward, 77 Cal. 113. 66 People v. Richards, 67 Cal. 412; People v. Daniels, 105 Cal. 267; Penal Code 182. 57 Penal Code 184. 58 People v. Holmes, 118 Cal 445. EVIDENCE. 367 of the common design, is the act of all, 59 and where all are present aiding or abetting a common design, the act of one is the act of all. 00 But the conspiracy must be first estab- lished by independent proof. 01 The order of proof, how- ever, is in the discretion of the court. 02 But the declarations of a co-conspirator made after the act are not admissible. 63 Falsehood, evasion or silence of conspirators after the act is not admissible in evidence under any circumstances. 84 This is on the principle that the acts or declarations of a con- spirator to be admissible in evidence, must be in pursuance or furtherance of the conspiracy. 05 Acts or declarations of conspirators pending or prior to the commission of the crime are admissible against all, 00 even in the absence of the accused. 07 And the declarations of those not prosecuted are equally admissible with those under indictment. 68 After the conspiracy is established', any act or 'declaration in the course or carrying out of a common design and until the crime is fully consummated, is admissible. 09 And for the purpose of one crime, declarations of a co-conspirator are admissible of anoth'er crime (committed in the execution of the common design, 70 but under an indictment for arson 59 People v. Pool, 27 Cal. 573. eo People v. Woody, 45 Cal. 299. ei People v. Compton, 123 Cal. 403. 62 People v. Fehrenbach, 102 Cal. 394; People v. Van Horn, 119 Cal. 330. 03 People v. Dilwood, 94 Cal. 89; People v. Oldham, 111 Cal 653; People v. Collum, 122 Cal. 188; People v. Prather, 120 Cal. 665; People v. Holmes, 118 Cal. 458; People v. Opie, 123 Cal. 295; People v. Moore, 45 Cal. 19; People v. Winters, 125 Cal. 331; People v. Irwin, 77 Cal. 495. e* People v. Irwin, 77 Cal. 494. 65 People v.j Gregory, 120 Cal. 16; People v. Geiger, 49 Cal 643; People v. Brown, 59 Cal. 352; People v. Stevens', 68 Cal. 115; People v. Dixon, 94 Cal. 257. ee People v. Brown, 59 Cal. 346; People -v. Trim, 39 Cal. 75; People v. Lovren, 119 Cal. 88; People v. Majors, 65 Cal. 138; People v Estrado, 49 Cal. 171; People v. Cotta, 49 Cal. 166. 67 People v. Dixon, 94 Cal. 255. 68 People v. Fehrenbach, 102 Cal. 394. 69 People v. Rodley, 131 Cal. 240; People v. Lovren, 119 Cal. 88. People v. Collins, 64 Cal. 293; People v. Dixon, 94 Cal 257 368 CRIMINAL LAW AND PROCEDURE. to defraud, the acts of a conspirator in an attempt to collect insurance are not admissible. 71 The testimony of declara- tions made fay one party to the witness are not disproved by testimony tthat such declarations were not true. 72 A con- spiracy may be established by circumstantial evidence. 73 Indeed, 'it is not often that ( the direct facts of a common design, which is the essence of a conspiracy, can be proved otherwise than by the establishment of independent facts, bearing more or less remotely upon the main central object, and tending to convince the mind reasonably and logically of the existence of the conspiracy. If 'it be 1 proved that the defendants pursued by their acts the same object, often by the same means, one preforming one part and another another part of the same, so as\ to, complete it, with a view to the attainment of the same object, the jury will be jus- tified in the conclusion that they were engaged in a con- spiracy to effect that object. 74 The fact that the defendant was standing by and saw a crime committed is not evidence of a conspiracy, 75 but the resolutions of a trade union are admissible to show conspiracy of its mfembets. 76 The con- spiracy must always be satisfactorily proved before the declarations are admissible, 76a and error in the admission of such testimony is not; cured by instructing the jury to dis- regard it. 77 CONFESSIONS, ADMISSIONS AND DECLARATIONS. A confession, in criminal law, is the voluntary declaration made, by a person who has committed a crime, to another, of the agency or participation he had in the same. The word "confession" is not the mere equivalent of the words "statement" and "declaration." 78 The term is restricted 71 People v. Trim, 39 Gal. 75. 72 People v. Mitchell, 94 Cal. 550. TS People v. Lane, 101 Cal. 513; People v. Bentley, 75 Cal. 407; People v. Dixon, 94 Cal. 257. T* People v. Bentley, 75 Cal. 409; People v. Bentley, 77 Cal. 7; People v. Rodley, 131 Cal 240. 75 People v. Stevens, 68 Cal. 113. 76 People v. Holmes, 118 Cal. 444. 76a People v. Geiger, 49 Cal. 643. 77 People v. Oldham, 111 Cal. 648. 78 People v. Strong, 30 Cal. 158; People v. Velarde, 5d Cal. 461. EVIDENCE. 369" to acknowledgements of guilt. 70 It does not include state- ments not amounting to a confession of guilt, 80 and admis- sion of facts that may tend to show guilt is not- a con- fession. 81 It is a well established law that extrajudicial confessions and verbal admissions should be received with caution, 82 and viewed with distrust. 83 A confession alone, made extrajudicially, will not sustain a conviction. 84 But confessions to be, admissible at all, must be freely and volun- tarily made, 85 and not under the influence of threats, 86 or fear, 87 or induced by any improper means. 88 But where the confession is made under the expectation that the punish- ment will be lessened under a plea of guilty, it is admis- sible. 89 A subsequent confession is presumed to have been made and influenced by the same hopes and fears which induced the first confession, 90 and it is an open question in this state whether the inducement must be made by one having authority, such as a constable, sheriff, prosecutor People v. Parton, 49 Cal. 637; People, v. Velarde, 59 Cal. 461; People v. Le Roy, 65 Cal. 614; People v. Am- merman, 118 Cal. 32. so people v. Hickman, 113 Cal. 86; People v. Miller, 122 Cal. 87. si People v. Hickman, 113 Cal 80; People v. Ashmead, 118 Cal. 509. 82 People v. Sanders, 114 Cal. 216; People v. Rodley, 131 Cal. 240; People v. Van Horn, 119 Cal. 332; People v. Tarbox, 115 Cal. 65. ss People v. Sternberg, 111 Cal. 11; Section 2061 Code of Civil Procedure. s* People v. Thrall, 50 Cal. 415; People v. Simonsen, 107 Cal. 348; People v. Jones, 31 Cal. 565; People v. Elliott, 90 Cal. 586. 85 People v. Hawes, 98 Cal. 648; People v. Rodriguez, 10 Cal. 51; People v. Jim Ti, 32 Cal. 60; People v. Ro- dundo, 44 Cal. 538; People v. Goldenson, 76 Cal. 350; People v. Barric, 49 Cal. 342; People v. Thompson, 84 Cal. 606; People v. Fredericks, 106 Cal. 554; People v. Long, 43 Cal. 444; People v. Johnson, 41 Cal. 452; Peo- ple v. Eckman, 72 Cal. 583; People v. Eslabe, 127 Cal. 243; People v. Neary, 104 Cal. 373; People v. Yeaton, 75 Cal. 415. ss People v. Oliveria, 127 Cal. 377. ST People v. Rodriguez, 10 Cal. 51. 88 People v. Long, 43 Cal. 444; People v. Barric, 49 Cal. 342; People v. Thompson, 84 Cal. 606; People v. Smith, 15 Cal. 409. 8 People v. Eckman, 72 Cal. 582. 90 People v. Eckman, 72 Cal. 583. CRIMES--24 370 CRIMINAL LAW AND PROCEDURE. -and the like. 01 But the rule that confessions must be volun- tary is limited to confessions of guilt, and has no application to admissions of fact which merely tend to show guilt, 9 - or statements which show innocence made to an officer. 93 Thus statements voluntarily made before a coroner's jury are admissible at the trial, 94 and so, are declarations made two years before the act as to what he would do in certain cases. 95 Statements made by defendant in respect to an inquiry as to the whereabouts of his partner, when it is shown that the deceased was his partner, are admissible. 96 His admission of a fact at the trial also may be read against him, and the admission of his attorney is his admis- sion, when made in his presence without objection. 97 The exclamation of the wife of the defendant at the time of the homicide, if made inj his presence, is admissible against him, 98 and likewise, conversations with the defendant, and false explanation given by him, 99 , and yoluntary admissions in civil cases, where the witness was not in custody, and not charged with the crime, 1 admissions in another trial, 2 writ- ten confessions at the preliminary examination, are com- petent evidence against a defendant in a criminal case. 3 But the admission of a writtein confession does not preclude oral admissions. 4 A confession may be corroborated by circumstances. 5 Thus a confession of larceny and the find- si People v. Smith, 15 Cal. 409. 92 People v. Parton, 49 Cal. 632; People v.Wreden, 59 Cal. 396; People v. Velarde, 59 Cal. 461; People v. Le Roy, 65 Cal. 614; People v. Hickman, 113 Cal. 86; Peo- ple v. Ammerman, 118 Cal. 32; People v. Knowlton, 122 Cal. 357; People v. Young, 102 Cal. 411; People v Miller, 122 Cal. 84. as People v. Ashmead, 118 Cal. 508. 4 People v. Martinez, 66 Cal. 278; People v. Taylor, 59 Cal. 640; People v. Wheeler, 60 Cal. 590; People v. Herbert, 61 Cal. 544. 95 People v. Irwin, 77 Cal. 496. 96 People v. Bowman, 81 Cal. 566. 9T People v. Garcia, 25 Cal. 531. 98 People v. Murphy, 45 Cal. 137. 99 People v. Cuff, 122 Cal. 589. 1 People v. Weiger, 100 Cal. 352. 2 People v. Mitchell, 94 Cal. 550. s People v. Cokahnour, 120 Cal. 252. * People v. Cokahnour, 120 Cal. 252. s People v. Jones, 32 Cal. 81. EVIDENCE. 371 ing of the ,stolen property at the place named, in the con- fession renders it admissible, and takes it out of the rule that confessions obtained by threats are not admissible. It precludes a possibility of the testimony being false, which is the ground for the rule. 6 While the witness may testify to finding the property at the place indicated, he may not testify that the defendant, in pointing it out, said he had placed it there, as that would amount to a confession and would be within the rule. 7 Declarations to be admissible must in all cases be connected with the subject of the inquiry. 8 Words uttered by the defendant while sleeping, 9 or while insane, are not admissible against him, 10 but con- fessions when made under the influence of liquor furnished defendant with the consent of the officer, if uninfluenced bv anything said by the officer, are admissible. 11 A volun- tary confession by a defendant who is held in custody and not taken before a magistrate within twenty-four hours of his arrest is not rendered inadmissible thereby. 12 The con- fession of an accomplice after the commission of the crime is not admissible against the defendant. 13 If the confession be voluntary, it is admissible, although 'made with the pur- pose of releasing another also imprisoned. 14 The burden of showing the confession was voluntary is on the prosecu- tion, who seeks to introduce it. 15 The defendant should object to the admission of a confession on the ground that it was not shown to be voluntary, but if he fails to object, and it is admitted, the burden is then on him to show that it was not voluntarily made. 16 But the defense may show s People v. Ramirez, 56 Cal. 533; People v. Ah Ki, 20 Cal. 178; People v. Ah How, 34 Cal. 224; People v. Hoy Yen, 34 Cal 176. 7 People' v. Hoy Yen, 34 Cal. 176. s People v. Irwin, 77 Cal. 494. o People v. Robinson, 19 Cal. 41. 10 People v. Wreden, 59 Cal. 392. 11 People v. Ramirez, 56 Cal. 533. 12 People v. Devine. 46 Cal. 46. 13 People v. Aleck, 61 Cal. 137; People v. Uwahah, 61 Cal. 142; People v. Gonzales, 71 Cal. 577; People v. Irwini 77 Cal. 505. i* People v. Smalling, 94 Cal. 112. is People v. Castro, 125 Cal. 521. i6 People v. Rodriguez, 10 Cal. 51. 372 CRIMINAL LAW AND PROCEDURE. that it was not voluntary before it is admitted. 17 Statements made in an action, if not objected to and answer is not refused on the ground that they would incriminate, are voluntarily made. 18 The admission of a written confession of a defendant, is without prejudice where the defendant himself testifies to the same fact. 19 Declarations and state- ments of the defendant, if admitted, should be given in full. 20 A part of a conversation is not admissible, 21 the whole of the confession must be put in, if a part is admitted. 22 The jury may believe a confession in part and disbelieve in part, as other evidence. 23 Where the witness does not perfectly understand the language in which the confession was given, he cannot testify to it. 24 If the state- ment has a qualification not fully understood which is essential to a full understanding of the confession, it is not sufficient to convict. 25 Where the indictment contains two counts, one of which is bad, and the other good, and a verdict of guilty is rendered on both, declarations made by defendant which were admissible under only one count renders the verdict and judgment erroneous. 26 The admis- sions of the district attorney, made at the trial to the effect that a witness for the prosecution was indicted for receiv- ing stolen property, is admissible to affect the credibility of the witness and is binding on the prosecution. 27 His admissions as to the acts of the prosecuting witness made during the trial are as relevant as if proven by the tes- timony. 28 The admissibility of a confession is a question IT People v. Soto, 49 Cal. 67. is People v. Weiger, 100 Cal. 352. is People v. Smalling, 94 Cal. 112. 20 People v. Strong, 30 Cal. 151. 21 People v. Keith, 50 Cal. 137; People v. Irwin, 77 Cal. 506; People v. Tarbox, 115 Cal. 65. 22 People v. Murphy, 39 Cal 52; People v. Navis, 3 Cal. 106. 23 People v. Wyman, 15 Cal. 70; People v. Strong, 30 Cal. 158; People v. Graham, 21 Cal. 261. 24 People v. Gelabert, 39 Cal. 663; People v. Tarbox, 115 Cal. 65; People v. Ah Wee, 48 Cal. 238; People v. Keith, 50 Cal. 139. 25 People v. Tarbox, 115 Cal 57. ze People v. Smith, 103 Cal.' 563. 27 People v. Robles, 34 Cal. 591. 28 People v. Tyler, 36 Cal. 522. EVIDENCE. 373 for the court, 29 and the proper foundation must be laid before it is admitted. 30 Declarations by the defendant in his own favor are not admissible, 31 except where they form a part of the res gestae. 32 Neither can statements by the defendant to third parties be proved in his own favor. 88 CORPUS DELICTI. The corpus delicti involves the elements of the crime; and, in order to prove it, all of the elements of the crime must be made to appear before the defendant's confession is admissible for any purpose. The confession/ cannot be used to establish any necessary element of the commission of the crime. 34 The confession will not establish the corpus delicti, 35 nor is an admission sufficient proof of the corpus , delicti to admit a confession. 30 It must be established independent of the evidence which merely tends to connect the defendant with the crime. 37 It is the duty of the court to instruct the jury as to the independent proof necessary to establish the corpus delicti. 39 It is made up of certain facts forming its basis, and the existence of criminal agency as the -cause of them. 39 Generally it must be proven by direct testimony, but it may be proven by circumstances or inference. 40 Thus in a charge of ( rape 'under the age of consent, pregnancy is sufficient proof of corpus delicti to admit the admission of the defendant. 41 But in obtaining money under false pretenses, admissions of the defendant are not sufficient to prove the corpus delicti.* 2 The admis- 29 People v. Ah How, 34 Cal. 218. so People v. Chaves, 122 Cal. 134. si People v. Prather, 120 Cal. 660; People v Chin Hane, 108 Cal. 597. 32 People v. Kalkman, 72 Cal. 212. 33 People v. Hill, 116 Cal. 562. s* People v. Simonsen, 107 Cal. 345. 35 People v. Baird, 105 Cal. 126. se People v. Harris, 114 Cal. 575. 37 People v. Tapia, 131 Cal. 647; 'People v. Thrall, 50 Cal. 415. 38 People v. Tapia, 131 Cal. 647. 39 People v. Jones, 123 Cal. 65. 40 people v. Alviso, 55 Cal. 230; People v. Simonsen, 107 Cal. 348. 41 People v. Tarbox, 115 Cal. 57. 42 People v. Simonsen, 107 Cal. 345. 374 CRIMINAL LAW AND PROCEDURE. sions of the editorship or proprietorship of a paper in a prosecution for criminal libel are not proof of the corpus deliciti, nor do the defendant's acts or admissions in relation thereto amount to a confession. 48 Full proof of the body of the crime independently of a con- fession, is .not required, however. It is sufficient if the corroborative facts with the confession show the existence of the offense of which the defendant is guilty. 44 The evidence of the corpus delicti need not be of conclusive character, nor should it connect the defendant with the crime in order to justify its admission. 45 The admission in evidence of the confession before proof of the corpus delicti will not justify a reversal where the defendant is not prejudiced. 46 The failure to require preliminary proof that the confession was voluntary is not prejudicial, where cir- cumstances show no inducements were held out. 47 ACTS AND DECLARATIONS IN THE PRESENCE OF THE ACCUSED. Conversations in the presence of the accused are not hearsay, 48 and are admissible against him. 49 Likewise admissions by the defendant at the same time are admis- sible, 50 but only so far as the defendant asserted, 51 or did not controvert. 52 His acquiescence in statements by others may be shown to establish admissions of guilt. 53 It is admitted not as evidence of the truth of the facts stated, but to show the conduct of the defendant. 54 But such con- 43 People v. Miller, 122 Cal. 84. 44 People v. Jones, 123 Cal. 65. 45 People v. Jones, 31 Cal. 566; People v. Thrall, 50 Cal. 415; People v. Jones, 123 Cal. 65. 46 People v. Jones, 123 Cal. 65. 47 People v. Kamaunu, 110 Cal. 609. 48 People v. Mayes, 113 Cal. 618. 49 People v. Mayes, 113 Cal. 618; People v. Young, 10 Cal. 8; People v. Ah Fook, 64 Cal, 380; People v. Louie Foo, 112 Cal. 24. so People v. Ah Fook, 64 Cal. 380; People v. i-ouie Foo, 112 Cal. 24. 51 People v Estrado, 49 Cal. 171; People v. An Yute, 53 Cal. 615; 'People v. Ah Yute, 54 Cal. 90. 52 People v. Mallon, 103 Cal. 513; People v. Young, 108 Cal. 13; People v. Chin Hane, 108 Cal. 603. 53 People v. McCrea, 32 Cal. 98; People v. Mallon, 103 Cal. 514. 54 People v. Ah Yute, 53 Cal 614; People v. Ah Yute, 54 Cal. 90; People v. Louie Foo, 112 Cal. 24. EVIDENCE. 375 versation must be connected with the defendant, 55 as those made out of his presence are not admissible. 58 It is for the jury to decide whether the defendant heard and understood the same. 57 Declarations of the guilt of the defendant are inadmissible unless they be dying declarations. 58 And if made by others, even in the presence of the accused, they are not admissible in his favor. 59 Where the conversations are connected with the assault, and are mentioned on the day of the fight they are admissible. 60 Conversations with a Chinese defendant, who is sufficiently acquainted with English to understand what was said, are admissible. 61 The rule as to part conversations not being admissible, does not apply to cases where the witness heard only a part ; he may relate what he heard, 62 and where it was in two languages it may be proven as to each part by persons understanding that one part only. 63 But a prosecuting witness cannot tes- tify as to conversations had with others and the report he made to the chief of police. 64 Acts done in the presence of the defendant by others and showing a conspiracy between the defendant and some person, are admissible, in larceny cases, although no conspiracy to steal is shown. 65 CONDUCT OF THE ACCUSED. The flight of the accused is a circumstance to be con- sidered by the jury, with other evidence, 1 to show con- ss People v. Powell, 87 Cal. 348. ss People v. Griffin, 52 Cal. 616. 57 People v. Chin Mook Sow, 51 Cal. 597. ss People v. Hall, 94 Cal. 595. 5 People v. Louie Foo, 112 Cal. 17. BO People v'. Madden, 76 Cal. 521. ei People v. Cnin Hane, 108 Cal. 597. 62 People v. Daniels, 105 Cal. 262. es People v. Ah Wee, 48 Cal. 236; People v. Keith, 50 Cal. 139; People v. Lee Fat, 54 Cal. 530; People v. Ir- win, 77 Cal. 506. e* People v. McNamara, 94 Cal. 510. es People v. Wilson, 66 Cal. 370. i People v. Choy Ah Sing, 84 Cal. 276; People v. Forsythe, 65 Cal. 101; People v. Mayes, 66 Cal. 595; People v. Fine, 77 Cal. 147; People v. Wong Ah Ngow, 54 Cal. 151; People v Mitchell, 55 Cal. 238; People v. Messer- smith, 61 Cal. '249; People v. Welsh, 63 Cal. 168. 376 CRIMINAL LAW AND PROCEDURE. sciousness of guilt. 2 It may be shown notwithstanding it tends to prove another crime, 3 but there is no presumption of guilt from such a circumstance. 4 The arrest of the defendant in another state is not proof that he fled from justice. He may have gone there on business or pleasure. 5 But where there is no evidence to establish a guilty flight and no claim is made that the flight was guilty, evidence in rebuttal of guilt is inadmissible. The question of the guilt of the flight is for the jury. 7 Pursuit and capture of defendant are admissible, 8 bvit not the advice of third per- sons to the defendant to fly; 9 nor letters containing such advice, found on his person. The bad character of the society writing the advice is not admissible, unless the defendant is shown to be a member thereof. 10 ' The willing- ness of the accused to surrender is not admissible, where no evidence of flight is offered, 11 and a failure to fly by one having an opportunity is not proof of innocence. 12 Other evidence of the conduct of the accused is admissible, such as a breach of parole, 13 an attempt to bribe a pros- ecuting witness, 14 and concealment and disguise. 15 But the conduct of the accused showing his objection to being dis- graced by arrest cannot prejudice him. 16 An offer to plead guilty to a lesser crime may be shown, when it was not induced by hope or fear. 17 The silence of the defendant 2 People v. Bushton, 80 Cal. 160; People v. Giancoli, 74 Cal. 642; People v. Strong, 46 Cal. 303; People v. Welsh, 63 Cal. 168. s People v. Flannelly, 128 Cal. 83. 4 People v. Wong Ah Ngow, 54 Cal 151; People v. Mitchell, 55 Cal. 238; People v. Mes'sersmith, 61 Cal. 249; People v. Welsh, 63 Cal. 168. s People v. Page, 116 Cal. 386. People v. Clark, 84 Cal. 573. 7 People v. Armstrong, 114 Cal. 570. s People v. Fredericks, 106 Cal 554. o People v. Lee Dick Lung, 129 Cal. 491. 10 People v. Lee Dick Lung, 129 Cal. 491. " People v. Shaw, 111 Cal. 171. 12 People v. Montgomery, 53 Cal. 576. is People v. Ashmead, 118 Cal. 508. i* People v. Choy Ah Sing, 84 Cal. 276; People v. Wong Chuey, 117 Cal. 628. is People v. Winthrop, 118 Cal. 85. i People v. Fitzpatrick, 80 Cal. 538. " People v. Carroll, 92 Cal. 568. EVIDENCE. 377 under accusation of guilt, cannot be proved against him; out silence in not explaining the possession of a forged check, testified to in chief, can be proved on cross-examin- ation. 18 His conduct to show intent is admissible both before and after the fact, but not as res gestae. The evidence of the flight of one defendant to a joint crime may be introduced against the others, to show that he had an opportunity to throw away the fruits of the crime. 20 Evidence may be introduced to the effect that the defend- ant, a short time before the offense, called himself by another name, 21 but the accused may, at all times, explain his conduct. 22 PRIVILEGED COMMUNICATION. There are particular relations in which it is the policy of the law to encourage confidence and preserve it inviolate. Therefore, an attorney cannot be examined as a witness without the consent of his client, as to any communication made by the client to him, or his advice given thereon, in the course of professional employment. 23 But the defend- ant may be! asked whether he had prepared a statement and addressed it to his attorneys. 24 The rule as to a privileged communication between patient and physician or surgeon has no application to criminal actions. 25 Neither a husband nor wife can be examined in a criminal action, without the consent of the other spouse, as to any communication made by one to the other during the marriage, except for a crime committed by one against the other. 26 The testimony can- not be given even after divorce. No disclosures can be forced from either spouse, 27 but the testimony of the wife is People v. Dole, 122 Cal. 486 19 People v. Welsh, 63 Cal. 167. ^o People v. Collins, 48 Cal. 277; People v. Welsh, 63 Cal. 168. 21 People v. Hope, 62 Cal. 291. '-'- People v. Williams, 17 Cal. 142; People v. Scoggins, 37 Cal. 687. 23 People v. Atkinson, 40 Cal. 284. 24 People v. Durrant, 116 Cal. 179. 25 People v. West, 106 Cal. 89; People v. Warner, 117 Cal. 639; People v. Lane, 101 Cal. 513. 26 People v. Warner, 117 Cal. 637. -'" People v Mailings, 83 Cal. 138; People v. Warner, 117 Cal. 639.' 878 CRIMINAL LAW AND PROCEDURE, against the defendant is presumed to be with his consent, where he afterwards testifies to the same facts, 28 and the error in permitting the testimony is cured thereby. 29 OTHER OFFENSES. Evidence connecting the defendant with other offenses is admissible, if it tends to show a material fact or motive in the casei at issue, 30 is a part of the same transaction, 31 tends to connect the defendant with the crime charged, 32 or is con- nected with the crime charged. 33 But the connection from which the crime is inferred must be clear. 34 It is also ad- missible to show motive, 35 intent and guilty knowledge, 3 * and to rebut the claim of good faith. 37 Thus in forgery cases, evidence of other forgeries may be introduced about 28 People v. Fultz, 109 Cal. 258. 29 People v. Ketchum, 73 Cal. 635. so People v. Rogers, 71 Cal. 565; People v. Lane, 101 Cal. 518; People v. Smith, 106 Cal. 82; People v. Craig, 111 Cal. 460; People v. Ebanks, 117 Cal 664; People v. Wil- son, 117 Cal. 692; People v. Walters, 98 Cal. 138; Peo- ple v. Winthrop, 118 Cal. 85. si People v. Walters, 98 Cal. 138; People v. Bidleman, 104 Cal. 613; People v Wilson, 117 Cal. 692; People v. Smith, 106 Cal. 82; People v. Ebanks, 117 Cal. 663; Peo- ple v. Lee Chuck, 66 Cal. 662. 32 People v. McGilver, 67 Cal. 55; People v. Rogers, 71 Cal. 568; People v. Lane, 101 Cal. 518; People v. Smith, 106 Cal. 82; People v. Ebanks, 117 Cal. 664. 33 People v. Cunningham, 66 Cal. 668; P'eople v. Walters, 98 Cal. 142; People v. Patterson, 102 Cal. 244; People v. Sanders, 114 Cal. 231;: People v. Ebanks, 117 Cal. 664. 34 People v. Lane, 101 Cal. 379; People v. Tucker, 104 Cal. 443; People v. Bidleman, 104 Cal. 613. 35 People v. Lane, 101 Cal. 514; People v. Tomlinson, 102 Cal. 24; People v. Fultz, 109 Cal. 262; People v. Sanders, 114 Cal. 231; People v. Ebanks, 117 Cal. 664; People v. Wilson, 117 Cal. 688. 36 People v. Bidleman, 104 Cal. 608; People v. Ebanks, 117 Cal. 664; People v. Wilson, 117 Cal. 688; People v. Walters, 98 Cal. 142'; People v. Lattimore, 86 Cal. 402; People v. Fehrenbach, 102 Cal. 394; People v. Baird, 105 Cal. 126; People v. Cobler, 108 Cal. 538; Peo- ple v. Van Ewan. Ill Cal. 144; People v. Gray, 66 Cal. 271; People v. Bibby, 91 Cal. 476; People v Shainwold, 51 Cal. 468; People v. Smith, 106 Cal. 81; People v. O'Brien, 66 Cal. 605; People v. Cunningham, 66 Cal. 671; People v. Neyce, 86 Cal. 395. 37 People v. Tomlinson, 102 Cal. 19; People v. Fultz, 109 Cal. 262. EVIDENCE. 379 the same time to prove guilty knowledge, although the defendant was acquitted thereon. 38 Evidence of other larcenies committed in the neighborhood may be admitted to show why a witness had feigned complicity in the offense. 30 And prior and similar embezzlements against the same party are admissible. 40 In robbery cases evidence showing motive is admissible, although it tends to show a distinct offense. 41 In larceny evidence of other offenses is admissible where the property stolen is found with that on which the prosecution is had. 42 And in burglary the possession of stolen property may be shown, although it also appears that some of the property was the result of another crime. 43 To show the pendency of a case in which perjury is alleged to have been committed, the complaint in that case is admissible. 44 In an assault to murder, com- mitted in an attempt to escape from jail, it may be shown that the defendant was in jail for the purpose of showing motive, although it tends to prove another distinct offense. But, yet, it is connected with the one on trial. 45 Upon a charge of rape under the age of consent, proof of another offense is not generally admissible, 46 but it may be shown to explain the absence of outcry and laceration of parts. 47 Evidence otherwise irrelevant is admissible when part of a narrative material to the issue, 48 but evidence of other offenses wholly unconnected with the case on trial are not admissible. 49 To be admissible, it must be shown that it is in some way connected witn SB People v. Frank, 28 Cal. 507; People v. Garnett. 2 Cal. 631; People v. Bibby, 91 Cal. 476. 39 People v. Bolanger, 71 Cal. 17. 40 People v. Neyce, 86 Cal. 393. 41 People v. Gleason, 127 Cal. 323. 42 People v. Robles, 34 Cal. 591; People v. Lopez, 59 Cal. 363; People v. Cunningham, 66 Cal. 669. 43 People v. Sears, 119 Cal. 267. 44 People v. Lee Fat, 54 Cal. 527. 45 People v. Valliere, 123 Cal. 576; People v. Lane, 101 Cal. 513. 46 People v. Rangod, 112 Cal. 669. 47 People v. Fultz, 109 Cal. 258. 48 People v. Kuches, 120 Cal. 566; People v. Lynch, 122 Cal. 503. 49 People v. Cuff, 122 Cal. 589. U80 CRIMINAL LAW AND PROCEDURE. the case on trial, and a part of the same tran- saction or of the res gestae. 50 In incest cases, other dis- tinct offenses are admissible, 51 but the previous prostitution of a daughter, cannot be shown against the defendant, to prove' that he lived off her earnings as such. 52 Evidence of another crime, which is only incidental to the rebuttal of material evidence of the defendant, is admissible. 53 Thus a magistrate may testify that a person who had been charged with an assault to murder the defendant was found not guilty on the same day that the deceased was killed, 54 and the declarations of a co-defendant as to other offenses are inadmissible. 55 The declarations of the defendant as to other offenses than the one for which he is held for trial are inadmissible, except so far as they refer to a general scheme to commit the particular crime with which he is charged. 50 The judgment of the conviction of a person jointly indicted with the accused, is not admissible in evi- dence against him, for any purpose. 57 In forgeries the evidence of other offenses is not admissible, unless there is evidence tending to connect the defendant therewith, and the finding of a check upon his desk is not sufficient evidence. 58 The corpus delicti must be established before other forgeries may be shown. 59 In such cases it cannot be admitted to show guilty knowledge unless it appears that the check described in the indictment was itself a for- gery. 60 Evidence of distinct offenses which are not con- nected with the case on trial, or in no way tend to prove any of the issues therein, or to establish intent or guilty knowledge, etc., are not admissible. 61 Thus it cannot be so People v. Teixeria, 123 Cal. 297; People v. Wong Ark, 96 Cal. 129; People v. Lane, 100 Cal. 379. 51 People v. Patterson, 102 Cal. 239. 52 People v. Beniot, 97 Cal. 249. as People v. Piggott, 126 Cal. 509. 54 People v. Chin Hane, 108 Cal. 597. 55 People v. Williams, 127 Cal. 212. 56 People v. Dixon, 94 Cal. 255. 57 People v. Bearss, 10 Cal. 68. 58 People v. Bird, 124 Cal. 32. so People v. Whiteman, 114 Cal. 338. eo People v. Whiteman, 114 Cal. 338. i People v. Lynch, 122 Cal. 501; People v. Tyler, 36 Cal. 522; People v. Vidal, 121 Cal. 221; People v. Hurley, 126 EVIDENCE. 381 introduced to prove larceny, 02 unless there is a connection- between the offenses ; 0:s nor to prove guilt, 64 nor to impeach a witness, 05 as the testimony cannot extend to collateral matters. 65a But it may be admissible as explanatory of the prior offense. 66 The fact of defendant's previous arrest cannot be shown to prove guilt of another crime, 67 nor the testimony of an officer that he had been searching for defendant for other offenses. 68 The evidence of subsequent offenses is not admissible. 69 CHARACTER. Evidence of the character of the defendant is to be considered in connection with the facts proven to establish his guilt or innocence. 70 Good character is a circumstance that may tend to rebut the presumption of evil intent, 71 and is to be considered in determining guilt. 72 The good character of the accused, when proven, is itself a fact of the case. It is a circumstance tending in a greater or less degree to establish his innocence. 73 In murder cases it may be considered for the purpose of determining who fired the first shot. 74 But bad character of the defendant is inadmissible against him, 75 unless the defendant begins the Cal. 351; People v. Lane, 100 Cal. 385; People v. Stew- art, 85 Cal. 174; People v. Elliott, 119 Cal. 594; People v. Smith, 106 Cal. 81; People v. McNutt, 64 Cal. 116; People v. Valliere, 127 Cal. 65. 02 People v. Hartman, 62 Cal. 562. 63 People v. Cunningham, 66 Cal. 672; People v. Smith, 106 Cal. 81. 64 People v. Jones, 31 Cal. 566; People v. Willard, 92 Cal. 482; People v. Sanders, 114 Cal. 230. 65 People v. O'Brien, 96 Cal. 171. "-a People v. Tyler, 36 Cal. 529. ee People v. Lenon, 79 Cal. 625. 67 People v. McCauley, 45 Cal. 146. es People v. Vidal, 121 Cal. 221. eo People v. Baird, 104 Cal. 462; People v. Lane, 100 Cal. 379. TO People v. Shepardson, 49 Cal. 631; People v. Doggett, 62 Cal. 29; People v. Raina, 45 Cal. 292. 71 People v. Casey, 53 Cal. 360. 72 People v. Bowman, 81 Cal. 566. 73 People v. Ashe, 44 Cal. 291; People v. Raina, 45 Cal. 292; People v. Shepardson, 49 Cal. 629. 74 People v. Soto, 63 Cal. 165. 75 People v. Dye, 75 Cal. 108; People v. Wallace, 89 Cal.. 162; People v. Webster, 89 Cal. 573. 382 CRIMINAL LAW AND PROCEDURE. inquiry. 70 It is not a step in proof of guilt, 77 and cannot be shown by the prosecution in its case in chief, 78 but it may be inquired into on cross-examination. 79 The bad character of a deceased person is not a legitimate subject of inquiry, 80 except in cases of homicide where the accused relies on self-defense. 81 Evidence to sustain his character for peace and quiet cannot be introduced until it is attacked. 82 Good character will not warrant an acquittal, if the defendant is otherwise shown to be guilty. 88 The jury may find a verdict of guilty notwithstanding the good character of the defendant. 84 Good character, like all other facts, should be proven by competent evidence. 88 A dis- charge certificate from the army is not evidence of good character, 80 neither is a letter of recommendation. 87 A person who has never heard the reputation of the defend- ant discussed cannot testify as to it. 88 Immoral conduct of the accused cannot be admitted to prove bad character. 89 The law presumes for the defendant a character of ordinary fairness, 00 and in the absence of evidence, he is not required to offer witnesses in support of good character, but has a right to have the jury assume his character unimpeached. 91 Good character can be considered only in reference to the 78 People v. Fair, 43 Cal. 137; People v. Wallace, 89 Cal. 162. 77 People v. Whiteman, 114 Cal. 338. 78 People v. Arlington, 123 Cal. 356; People v. Denby. 108 Cal. 56; People v. Meyer, 75 Cal. 386; People v Chin Mook Sow, 51 Cal. 597. 78 People v. Gordon, 103 Cal. 568. so People v. Anderson, 39 Cal. 703; People v. Bezy, 67 Cal. 224; People v. Powell, 87 Cal. 362. si People v. Edwards, 41 Cal. 640. 82 People v. Powell, 87 Cal. 362. ss People v. Samsels, 66 Cal. 99; People v. Kalkman, 72 Cal. 217. 84 People v. Mitchell, 129 Cal. 584; People v. Smith, 59 Cal. 602. ss People v. Velarde, 59 Cal. 457. so People v. Eckman, 72 Cal. 582. 87 People v. Duchow, 87 Cal. 113. ss People v. Moan, 65 Cal. 532. ss People v. Wallace, 89 Cal. 158. 90 People v. Fair, 43 Cal. 137; People v. Johnson, 61 Cal. 142. 31 People v. Gleason, 122 Cal. 370. EVIDENCE. 383 whole case, and not to any isolated fact of the case. 02 It should be restricted to the trait of the character in issue. 93 The defendant may always prove good character, 94 but such evidence is not conclusive of his innocence, even in cases otherwise doubtful upon the evidence. 95 The admission of counsel that any number of witnesses will testify to the bad reputation of the deceased for peace and quiet, is equi- valent to an admission that his reputation was bad. 96 HEARSAY EVIDENCE. A witness can testify of those facts only which he knows of his own knowledge; that is, which are derived from his own perceptions, except in those few express cases in which his opinions or inferences, or the declarations of others, are admissible. 1 Hearsay evidence includes statements in a letter found in defendant's possession, 2 and statements of the person robbed, as to the character and description of the robber ; 3 statements made by persons to a witness as to the place where the body lay, 4 the testimony of the arrest- ing officer as to the description of the defendant given by the prosecuting witness, 5 and entries in a register kept at the station of a railroad company showing the time of the arrival and departure of trains. 6 EXPERIMENTS. The admission of evidence of experiments made by a 92 People v. Milgate, 5 Cal. 127; People v. Roberts, 6 Cal. 217. 93 People v. Josephs, 7 Cal. 129. 94 People v. Ashe, 44 Cal. 288; People v. Bell, 49 Cal. 485; People v. Fenwick, 45 Cal. 288; People v. Raina, 45 Cal. 293; People v. Shepardson, 49 Cal. 631; People v. Casey, 53 Cal. 361; People v. Smith, 59 Cal'. 607; Peo- ple v. Doggett, 62 Cal. 29. ss People v. Streuber, 121 Cal. 431. ss People v. Shaver, 120 Cal. 354. 1 Sec. 1845 Code of Civil Procedure. 2 People v. Colburn, 105 Cal. 648. 3 People v. McCrea, 32 Cal. 98; People v. McLaughlin, 44 Cal. 439. * People v. Hill, 123 Cal. 571. s People v. Johnson, 91 Cal. 265; People v. ' McNamara, 94 Cal. 514. e People v. Mitchell, 94 Cal. 550; People v. Wong Chuey, 117 Cal. 627. 384 CRIMINAL LAW AND PROCEDURE.* witness is entirely within the discretion of the court. 7 The court may permit experiments applicable to facts in proof to be made in the presence of the jury. 8 Evidence of exper- iments as to the hearing of sounds under certain conditions, and the result thereof, is admissible in rebuttal. 9 , EXPERT EVIDENCE. There are certain matters upon which the law allows experts, or men versed therein, to give opinion. For instance, an expert may, in a forgery case, testify as to the means of removing writing, and a non-expert may testify to the effect of putting acid on a check. 10 An opinion may also be given as to cattle-brands, 11 as to the texture of cloth, 12 and the ground upon which the opinion is based may be stated. 13 But the character of a house is a question of fact, not of opinion, 14 and a witness cannot express an opinion as to any fact to be passed upon by the jury. 15 Thus expert testimony is not admissible to show whether a cartridge had been in aj certain pistol, 16 as to the eyesight of two persons relatively, unless the eyes have been tested and examined ; 1T as to the meaning of a word used by another, 18 or as to what the witness judged from what he saw. 19 Nor is expert opinion of the innocence of the defendant admissible, based upon the fact that the defend- ant, while under the influence of hypnotism, denied his guilt. 20 Expert testimony as to the character and description of a game is not admissible. 21 One witness cannot testify that a series of acts which were testified to by another 7 People v. Woon Tuck Wo, 120 Cal. 294. s People v. Levine, 85 Cal. 39. People v. Phelan, 123 Cal. 551. 10 People v. Brotherton, 47 Cal. 388. 11 People v. Fitzpatrick, 80 Cal. 538. 12 People v. Lovren, 119 Cal. 88. is People v. Bird, 12f Cal. 32. i* People v. Lock Wing, 61 Cal. 380. is People v. Ah Own, 85 Cal. 580. is People v. Mitchell, 94 Cal. 550. 17 People v. Marseiler, 70 Cal. 98. is People v. Moan, 65 Cal. 532. i People v. Elliott, 119 Cal. 593. 20 People v. Ebanks, 117 Cal. 652. 21 People v. Rose, 85 Cal. 378; People v. Shaugnessey, 110 Cal. 601; People v. Cosset, 93 Cal. 641. EVIDENCE. 385' witness, constituted a particular game. 22 These are ques- tions of law of which the court takes judicial notice. 23 The jury need not be cautioned against expert evidence. 24 A person who is not an expert may give an opinion as to whether or not the defendant, from appearances, was intox- icated. 25 DEPOSITIONS TAKEN AT THE PRELIMINARY EXAMINATION. The evidence of a witness given at a former trial is not admissible, 2G but the testimony at the preliminary exam- ination may be read where the witness is dead ; 27 but the death must be proved as any other fact, by relevant and competent evidence, and cannot be shown by ex parte affi- davits. 28 It may be read also when it is shown that the witness cannot be found in the state, after due diligence. 29 But a deposition taken on a preliminary examination for another charge, is not admissible for the offense on trial by reason of the death of the witness. 30 It is not admissible except where the witness is dead, insane or cannot, with due diligence be found in the state. 31 Where an officer who has been requested to serve a subpoena on- a witness, states that after following every source of inquiry, he was informed by various persons acquainted with the witness that he had left the state, and could not tell when he would return ; that it was said by one person that he was liable to return upon business at any time, but after further efforts to locate him, the officer could not find him, is a sufficient 22 People v. Gosset, 93 Cal. 641. 23 People v. Carroll. 80 Cal. 153. 24 People v. Smith, 106 Cal. 73. 25 People v. Sehorn, 116 Cal. 503; People v. Monteith, 73 Cal. 7; Ellen v. Lewison, 88 Cal. 260; San Diego Co. v. Neale, 78 Cal. 77. 26 People v. Gordon, 99 Cal. 227; People v. Gardner, 98 Cal. 127; People v. Chong Ah Chue, 57 Cal. 567; Peo- ple v. Qurise, 59 Cal. 344. 27 People v. Douglass, 100 Cal. 1. 28 People v. Plyler, 126 Cal. 379. 20 People v. Reilly, 106 Cal. 648; People v. Sierp. 116 Cal. 249; People v. Cady, 117 Cal. 10; People v. Nelson, 85 Cal. 421; People v. Oiler, 66 Cal. 101; People v. Chin Hane, 108 Cal. 597. 30 People v. Brennan, 121 Cal. 495. si People v. Bojorquez, 55 Cal. 463. CRIMES--25 3*6 CRIMINAL LAW AND PROCEDURE. showing of absence from the state. 32 Such depositions are -admissible also when taken through an interpreter, 33 but "when so taken the interpreter must be present at the trial and testify. 34 They are not admissible, however, unless they are taken and certified as required by the code, 35 but a substantial compliance with the statute is all that is required. 36 A deposition, taken before the magistrate, of a witness who is unable to procure sureties pending an information for a void commitment which is set aside, can- not be read in evidence on the second prosecution. 37 The evidence of a preliminary examination may be read at the trial, if not objected to. 38 Part of the evidence being intro- duced by the defendant, the people are entitled to the remainder explaining it. 39 The testimony of the accused may be used against him on the trial when freely and voluntarily given. 40 It cannot be objected to on the ground that the reporter had failed to file his notes. 41 It is suffi- cient if they be filed before the trial is ended. 42 REPORTER'S NOTES. The reporter's notes and the testimony based thereon is incompetent to prove the testimony of a witness given in a foreign language, through an interpreter, 43 and are not admissible in evidence to prove testimony of a witness given at a former trial, 44 but may be used to refresh the memory 32 People v. Mclntyre, 127 Gal. 423. 33 people v. Sierp, 116 Gal. 249. s* People v. Cady, 117 Gal. 10. 35 People v. Morine, 54 Gal. 575; People v. Mitchell, 64 Gal. 87; People v. Ward, 105 .Gal. 657; People v. Riley, 75 Gal. 101; Willard v. Superior Court, 82 Gal. 456; People v. Cunningham, 66 Gal. 677. 36 People v. Mclntyre, 127 Gal. 423. a? People v. Thompson, 84 Gal. 598. ss People v. Cunningham, 66 Cal. 668; Reid v. Reid, 73 Gal. 207; People v. Carty, 77 Cal. 216. so People v. Arthur, 93 Cal. 536. 40 People v. Keller, 47 Cal. 125; People v. O'Brien, 66 Cal. ' 605. 41 People v. Eslabe, 127 Cal. 243. 42 People v. Grundell, 75 Cal. 301. 43 People v. Ah Yute, 56 Cal. 119; People v. Sierp, 116 Cal. 250; People v. Lee Ah Yute, 60 Cal. 96; Reid v. Reid, 73 Cal. 207. 44 People v. Qurlse, 59 Cal. 343; People v. Gardner, 98 Cal. 132; People v. Gordon, 99 Cal. 233. EVIDENCE. 387 of the witness. 45 The reporter may testify from his notes as to testimony in a former trial, subject to cross-exam- ination. 46 The stenographer at the preliminary exam- ination need not be sworn, 47 but unless properly authenti- cated a transcript of his notes is not admissible. The court may, however, allow him to refresh his memory from his notes and testify orally as to what occurred at the exam- ination. 48 The reporter's notes are admissible, although not certified, if sworn to, for the purpose of impeachment. 49 A transcription of the notes of the testimony at a prelim- inary, properly certified, is admissible, like depositions upon the same footing. 50 PRESUMPTIONS. The identity of the person is presumed from the identity of the name, and is prima facie evidence thereof. 51 The presumption of innocence does not cease on the submission of a cause to the jury, 52 but continues all through the trial until the jury have reached a verdict of conviction. 53 It prevails over a presumption of the continuances of a fact once shown to exist, 54 over the presumption of the contin- uance of life, 55 of the continuance of marriage, 56 and of knowledge. 57 It is the only presumption allowed in crim- inal cases. 58 It is never overcome by another presumption. 45 Burbank v. Dennis, 101 Cal. 104; People v. Gordon, 99 Cal. 233; People v. Gardner, 98 Cal. 132; People v. Ammerman, 118 Cal. 23; People v. Carty, 77 Cal. 213. 46 People v. Lem You, 97 Cal. 224. *' People v. Riley, 75 Cal. 98. 4 People v. Carty, 77 Cal. 213; People v. Ward, 105 Cal. 658. 40 People v. Morine, 61 Cal. 367. so People v. Grundell, 75 Cal. 301. 51 People v. De Winton, 113 Cal. 403; People v. Rolfe, 61 Cal. 540; People v. Chin Mook Sow, 51 Caf. 600; People v. Riley, 75 Cal. 98; People v. Thompson, 28 Cal. 215. 52 People v. McNamara, 9. Cal. 509; People v. O'Brien, 106 Cal. 105; People v. Winthrop, 118 Cal. 92. People v. Arlington, 131 Cal. 231; People v. O'Brien, 106 Cal. 104; People v. McNamara, 94 Cal. 509. 34 People v. Strassman, 112 Cal. 683. ss People v. Feilen, 58 Cal. 218. 58 People v. Stokes, 71 Cal. 263. ST People v. Blackman, 127 Cal. 248. 58 People v. Douglass, 100 Cal. 1; People v. fctrassman 112 Cal. 687. 388 CRIMINAL LAW AND PROCEDURE. Two presumptions cannot stand together. 59 No presump- tion is raised against the defendant by the law, if he does not attempt to explain suspicious circumstances. 60 But the consent of the husband to the wife's remaining in a house of prostitution is presumed from his failure to object after knowledge. 61 For all purposes except that of the trial of the defendant, his indictment by the grand jury raises a presumption of guilt, as in fixing the bail, the defendant is presumed to be guilty. 62 JUDICIAL NOTICE. The court will take judicial notice of a change of judges, 83 of the time of the rising of the moon, 04 and of the sun, and may resort to an almanac to determine such questions. 85 It takes knowledge of the facts which constitute a banking game, 66 but it will not take judicial notice that a "pool" necessarily involves gambling for money. 67 The knowledge of a trial judge extends to the fact that he admonished the bailiff, and he may refuse to be sworn to testify on such a point. 68 BURDEN OF PROOF. The burden of proof is on the prosecution throughout the trial to prove the 1 criminal acts beyond a reasonable doubt, 89 but the doctrine of reasonable doubt does not apply where the defense is insanity. The burden of proof is there on the 59 People v. Sanders, 114 Cal. 216; People v. O'Brien, 130 Cal. 1; People v. Douglass, 100 Cal. 1; People v. Strass- man, 112 Cal. 687; People v. Krusick, 93 Cal. 79; Peo- ple v. Roderigas, 49 Cal. 11. so People v. Streuber, 121 Cal. 431. 6i People v. Bosquet, 116 Cal. 75. 2 Ex parte Ryan, 44 Cal. 555; Ex parte Duncan, 53 Cal. 411; In re Williams, 82 Cal. 183. es People v. Ebanks, 120 Cal. 626. 64 People v. Mayes, 113 Cal. 618. es People v. Chee Kee. 61 Cal. 404. e People v. Carroll, 80 Cal. 153; People v. Rose, 85 Cal. 382; People v. Gosset, 93 Cal. 645. 67 Ex parte Bernert, 62 Cal. 531. es People v. Azoff, 105 Cal. 632. 69 People v. Rodrigo, 69 Cal. 601; People v. Knapp, 71 Cal. 9; People v. Gordon, 88 Cal. 423. EVIDENCE. 389 defendant and he must, like other affirmative offenses, es- tablish it by a preponderance of evidence. The law presumes sanity. 70 Proof beyond a reasonable doubt is necessary to establish any fact against the accused, 71 but a mere pre- ponderance of proof is sufficient to establish a fact in his favor. 72 The jury must be satisfied beyond a reasonable doubt and for a certainty of the guilt of the defendant; it cannot act on probabilities. 73 The burden of proof does not shift to the defendant to deprive him of the doctrine of reasonable doubt, 74 but in homicide cases where the com- mission of the homicide by the defendant is proved, the burden of proving circumstances of mitigation, or those which justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. 75 But this rule applies only to homicide cases. 70 In assault to murder, the 70 People v. Coffman, 24 Cal. 230; People v. Wilson, 49 Cal. 14, same case, 57 Cal. 575; People v. Messersmith, 61 Cal. 248; People v. Pico, 62 Cal. 5o; People v. Travers, 88 Cal. 238; People v. McNulty, 93 Cal. 443; People v. Ward, 105 Cal. 343; People v. Bawden, 90 Cal. 199; Peo- ple v. Bemmerly, 98 Cal. 304; People v. Hettick, 126 Cal. 425; People v. Barthleman, 120 Cal. 7; People v. Allen- der, 117 Cal. 81; People v. McCarthy, 115 Cal. 255; Peo- ple v. Eubanks, 86 Cal. 295; People v. Kernaghan, 72 Cal. 609; People v. Bushton, 80 Cal. 160; People v. Mc- Donell, 47 Cal. 134; People v. Hamilton, 62 Cal. 384; People v. Elliott, 80 Cal. 296; People v. Myers, 20 Cal. 518; People v. Ferris, 55 Cal. 591; People v. Schmidt, 106 Cal. 48; People v. Marshal, 59 Cal. 386; People v. Smith, 59 Cal. 608; People v. Cheong Foon Ark, 61 Cal. 529; People v. Bell, 49 Cal. 485; People v. Wreden, 59 Cal. 395. "i People v. Millgate, 5 Cal. 127; People v. Rodrigo, 69 Cal. 605. -2 People v. Millgate, 5 Cal. 127; People v. Stonecifer, 6 Cal. 410; People v. Coffman, 24 Cal. 236; People v. Hong Ah Duck, 61 Cal. 395; People v. Knapp, 71 Cal. 9; People v. Rodrigo, 69 Cal. 605. 73 People v. O'Brien, 130 Cal. 1; People v. Dilwood, 94 Cal. 90; People v. Vereneseneckockockhoff, 129 Cal. 497. ~* People v. Cheong Foon Ark, 61 Cal. 527. 75 Penal Code 1105. 76 People v. Rodrigo, 69 Cal. 605; People v. Knapp, 71 Cal. 9: People v. Mize, 80 Cal. 46; People v. Gordon, 88 Cal. 423. 390 CRIMINAL LAW AND PROCEDURE. burden of proof remains on the prosecution throughout." The prosecution must be consistent; it cannot make out a case on one theory, and then upon a wholly inconsistent theory meet a special defense. 78 The offense charged in the indictment, and not another, must be proved. 78 In statutory offenses the rule that persons may be guilty of the crime without an intent to commit the same against the specific person injured does not apply. 80 ANTICIPATING THE DEFENSE. The court may permit the prosecution on introduction of evidence, to anticipate the defense, 81 or grant permission at any time before the final submission to supply defects in the evidence. 82 The statement of the case by the prosecution where it shows the evidence is insufficient to convict, does not entitle the defendant to a non-suit. 83 HYPOTHETICAL QUESTION. A hypothetical question must be based on the evidence, 84 or upon some fact proved in the case, 85 but it need not include all the evidence. 86 The whole testimony cannot be read as a part of the question. 87 INSANITY OF DEFENDANT. A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane. 1 When an action is called for trial, or at any time during trial, or when the defendant is brought up for judgment on conviction, if 77 People v. Gordon, 88 Cal. 422; People v. Ribolsi, 89 CaL 500. 78 People v. Willard, 92 Cal. 482. 70 People v. Fagan, 98 Cal. 230. so People v. Keefer, 18 Cal. 636; People v. Mize, 80 Cal. 44. si People v. Van Horn, 119 Cal. 323; People v. Arrighini, 122 Cal. 121. 82 People v. Lewis, 124 Cal. 551. ss People v. Ellsworth, 92 Cal. 594. s* People v. Dunne, 80 Cal. 34. * People v. Graham, 21 Cal. 261. ss People v. Hill, 116 Cal. 562; People v. Durrant, 116 CaL 183. 87 People v. Goldenson, 76 Cal. 330. i Penal Code 1367; People v. Schmidt. 106 Cal. 48. EVIDENCE. 391 a doubt arises as to the sanity of the defendant, the court must order the question of his sanity to be submitted to a jury ; and the trial or the pronouncing of the judgment must be suspended until the question is determined by their ver- dict. 2 The doubt as to the sanity of the defendant must be in the mind of the judge before whom the cause is pend- ing/' 1 An affidavit made by the defendant's attorney on information and belief is not sufficient to warrant the court in suspending the judgment to determine the question of the sanity of the accused. 4 Upon a doubt arising at the trial the question of sanity must be determined upon the court's own motion, without the necessity of a plea, before the main issues are decided. 5 Insanity developed after sentence will not authorize a reversal of judgment but will operate to suspend punishment. 6 ALIBI. If the evidence shows to the satisfaction of the jury that the defendant was at another place than that of the com- mission of the crime, at the very time, he has proved an alibi and cannot be convicted. 7 It is a defense often attempted by contrivance, subornation and perjury ; and the proof offered to sustain it, consequently, should be sub- jected to a rigid scrutiny. 8 It may be fabricated perhaps with greater hope of success or less fear of punishment than most other kinds of evidence; and honest witnesses often mistake dates and periods of time and identity of per- sons. Like other evidence, therefore, it may be open to special observations by the court, but such observations should not go to length of informing the jury that such 2 Penal Code 1368. 3 People v. Geiger, 116 Cal. 440; People v. Hettick, 126 Cal. 425. * People v. Knott, 122 Cal. 410. s People v. Ah Ying, 42 Cal. 18; People v. Lee Fook, 85 Cal. 304. e People v. Schmidt, 106 Cal. 48. T People v. O'Neil, 59 Cal. 259; People v. Burns, 59 Cal. 359. s People v. Levine, 85 Cal. 40. An- instruction to this effect would perhaps be unsound as invading the prov- ince of the jury. 392 CRIMINAL LAW AND PROCEDURE. evidence is less reliable than other evidence, 9 and this defense should not be scrutinized more than other defenses. 10 Any circumstances which tend to show it are admissible. 11 A preponderance of evidence is not required; 12 if the evi- dence raises a reasonable doubt as to the defendant's pres- ence at the crime, it is sufficient. 13 Where an alibi is proved, and there is not sufficient evidence to indicate an aiding and abetting that would make the defendant principal in the crime, the jury should acquit. 14 People v. Wong Ah Foo, 69 Cal. 180; People v. Lee Gam, 69 Cal. 552. 10 People v. Lattimore, 86 Cal. 403; People v. Levine, 85 Cal. 39. 11 People v. McCrea, 32 Cal. 98. 12 People v. Roberts, 122 Cal. 377; People v. Lee Sare Bo, 72 Cal. 627. is People v. Fong Ah Sing, 64 Cal. 253. * People v. Schodde, 126 Cal. 373. CHAPTER LIX. DUTIES OK COUNSEL, AND THE COURT The state never asks anything but justice. On the part of the state, the prosecution is but a fair and just inquiry into the guilt or innocence of the accused. She can have no interest in convicting the innocent or in releasing the guilty. She stands perfectly impartial as between the com- munity and the individual, and prosecuting attorneys should therefore, do their duties faithfully, but no more. They should never act as employed counsel. No advantage should be taken of temporary public excitement against the prisoner, or of any prejudice against him, arising from any cause whatever, and if such attempts are made, the court before whom the prisoner is tried, should put a stop to them. 1 The district attorney should remember that it is not his sole duty to convict, and that to use his official position to obtain a verdict by illegitimate and unfair means, is to bring his office and the courts into distrust. With due allowance for the zeal which is the natural result of the legal battle, and for the desire of every lawyer to win his case, a conscientious desire of a sworn officer of the court should overcome these. 2 MISCONDUCT OF THE DISTRICT ATTORNEY. It is the province of the trial judge to pass on the mis- conduct of the district attorney and its ruling will not be disturbed except for an abuse of discretion. 3 And any mis- conduct of the district attorney which prejudice any of the 1 People v. Butler, 8 Cal. 441. 2 People v. Lee Chuck, 78 Cal. 329. 3 People v. Rushing, 130 Cal. 449. 394 CRIMINAL LAW AND PROCEDURE. rights of the accused, is reversible error, 4 otherwise it is not. 4a It must be such conduct as will influence the jury in rendering their verdict. 5 But it is not reviewable unless it is embraced in a bill of exceptions. The objection and exception must be taken in the court below, 7 otherwise it will not be review-able. 8 It cannot be urged for the first time on appeal." When the statement of the district attor- ney in explanation is stricken out by the court, the error is harmless. 10 An objection in general terms is not suffi- cient. 11 The following acts have been held to be miscon- duct and prejudicial to the rights of the defendant: Com- menting on the failure to call a witness, 12 continuously ask- ing improper questions, 13 and repeating them irrespective of the nature of the answers, 14 commenting on facts stricken out of evidence and asserting that he knew the same of his own knowledge, 10 commenting on the silence of the defend- ant at the coroner's inquest, 10 and attempting in bad faith to improperly infhience the jury to defendant's damage in * People v. Ah Len, 92 Cal. 282; People v. Sears, 119 Cal. 271; People v. Rodley, 131 Cal. 240; People v. Kamaunu, 110 Cal. 609; People v. Devine, 95 Cal. 234; People v. Cokahnour, 120 Cal. 253; People v. Wells, 100 Cal. 463. *a People v. Ward, 105 Cal. 340; People v. Wong Chuey, 117 Cal. 630; People v. Putman, 129 Cal. 258. 5 People v. Mayes, 113 Cal. 622; People v. Woon Tuck Wo, 120 Cal. 295. e People v. Faulke, 96 Cal. 17. 7 People v. Beaver, 83 Cal. 419; People v. Brittan, 118 Cal. 409. s People v. Louie Foo, 112 Cal. 17; People v. Kramer, 117 Cal. 650. People v. Lane, 101 Cal.' 513; People v. Kramer, 117 Cal. 647; People v. Brittan, 118 Cal. 412. 10 People v. Benc, 130 Cal. 159; People v. Lee Chuck, 78 Cal. 317; People v. Ah Fook, 64 Cal. 380. 11 People v. Frigerio, 107 Cal. 151; People v. Hickman, 113 Cal. 88; People v. Kramer, 117 Cal. 651. 12 People v. Smith, 121 Cal. 355. is People v. Wells, 100 Cal. 459; People v. Gordon, 103 Cal. 573; People v. Ward, 105 Cal. 340; People v. Searcey, 121 Cal. 4; People v. Ryan, 108 Cal. 585; People v. Un Dong, 106 Cal. 88. 14 People v. Mullings, 83 Cal. 138; People v. Wells, 100 Cal. 464. is People v. Valliere, 127 Cal. 65; People v. Bowers, 79 Cal. 415; People v. Wells, 100 Cal. 459. 1 People v. Lemperle, 94 Cal. 45. DUTIES OF COUNSEL AND THE COURT. 395 the opening statement. 17 But statement of facts intended to be proved, 18 or offering in good faith to make proof even though unable to do so, is not misconduct. 19 Neither is a reference to a well known historical incident by way of illustration, 20 nor charging malice to the defendant where he is convicted of manslaughter, 21 nor the use of discour- teous language to counsel for defendant, 22 nor a request of by-standers to retire while prosecutrix is testifying. 23 A mis-statement of evidence in the argument will not war- rant a reversal, if the statements were made in reply to similar argument by the counsel for the defendant, and the court instructs the jury not to consider them. 24 Where the testimony is ruled out, or the question withdrawn, upon objection or upon suggestion by the court that it is improper, there is no misconduct. 20 MISCONDUCT OF COURT. Misconduct of the court in the presence of the jury is reversible error if excepted to. 26 But the misconduct must be judged from the record alone. 27 Improper remarks of the judge are not error, if the jury is instructed to dis- regard them.- 8 The censure of defendant's counsel is not improper, 29 where counsel insists upon repeating many immaterial questions. 30 But a\ statement by the court, upon IT People v. Searcey, 121 Cal. 1; People v. Wells, 100 Gal. 459. is People v. Gleason, 127 Cal. 323. 19 People v. M'Kay, 122 Cal. 628. 20 People v. Barthleman, 120 Cal. 9. 21 People v. Yokum, 118 Cal. 438. 22 People v. Patterson, 124 Cal. 102. 23 People v. Vann, 129 Cal. 118. 24 People v. Bush, 68 Cal. 623. 25 People v. Ward, 105 Cal. 335; People v. Mayes, 113 Cal. 622; People v. Wong Chuey, 117 Cal. 630; People v. Bowers, 79 Cal. 415; People v. Hamberg, 84 Cal. 474; People v. Devine, 95 Cal. 231; People v. Wells, 100 Cal. 463; People v. Phelan, 123 Cal. 551; People v. Ross, 85 Cal. 383. 26 People v. Abbott, 101 Cal. 645; People v. Hawley, 111 Cal. 78. 27 People v. Goldenson, 76 Cal. 328. 28 People v. Northey, 77 Cal. 618; People v. Mayes, 113 Cal. 623. 20 People v. Baker, 100 Cal. 188. so People v. Oliveria, 127 Cal. 376. 396 CRIMINAL LAW AND PROCEDURE. a disagreement of the jury, that it could not understand why twelve honest men could not agree is not cured by a charge that the jury is judge of the facts. 31 The reasons for the ruling of the court are not important if the decision is correct, 32 and an order in general terms is not limited by the opinion of the court making it. 33 ARGUMENT OF COUNSEL. The neglect or refusal of the defendant to be a witness cannot in any manner prejudice him, nor be used against him on the trial ; 34 neither can his failure to testify be com- mented on, 35 nor taken into consideration by the appellate court, 36 nor can any presumption be indulged in against him on account of such failure. 37 But error based upon an abuse of his right to refuse to testify should be taken advan- tage of upon motion for a new trial. 38 The right to open and close the case belongs to the district attorney. 39 The num- ber of attorneys who are allowed to argue is within the dis- cretion of the court. 40 In any offense not punishable with death, the court may refuse to permit more than one coun- sel to argue the case. 41 The court should fix reasonable limits to the time of argument of counsel, 42 but it cannot unreasonably limit it. 43 The court may refuse to allow counsel to argue the law in his opening statement, 44 and confine him to a statement of the facts expected to be proved and effects thereof. 45 The court should not allow counsel si People* v. Kindleberger, 100 Cal. 367. 32 People v. Graham, 21 Cal. 261. ss People v. Flood, 102 Cal. 330. s* Penal Code 1323. as People v. Brown, 53 Cal. 67; People v. Tyler, 36 Cal. 522; People v. McGungill, 41 Cal. 431; People v. San- ders, 114 Cal. 218. 36 People v. Page, 116 Cal. 388. ST People v. Anderson, 39 Cal. 703. as People v. Sansome, 98 Cal. 235. 39 People v. Mortimer, 46 Cal. 115. 40 People v. Ah Wee, 48 Cal. 236. 41 People v. Jones, 123 Cal. 65. 42 People v. Tock Shew, 6 Cal. 637. 43 People v. Green, 99 Cal. 564. 44 People v. Carty, 77 Cal. 213. 5 People v. Goldenson, 76 Cal. 328; People v. Bezy, 67 Cal. 223. DUTIES OF COUNSEL AND THE COURT. 397 to state or argue on facts not proved nor sought to be proved. 46 But erroneous statements of the evidence is not ground for a new trial. 47 Counsel may express an opinion in his argument, 48 and physical illustrations may be used where the jury is cautioned that the argument is not evi- dence. 49 The range of discussion of counsel on argument before the jury is wide. Matters of common knowledge and historical facts may be referred to, and interwoven in the argument. Allusions may be made to the prevalence of crime, and to the duty of the jury. 50 No advantage can be taken of the misconduct of an attorney on the argument, unless the interposition of the court is asked and exception taken for a refusal, 51 but improper comments of the district attorney, if not stopped by the court after objection, is reversible error. 52 The defense must be made after all the evidence is in, and the court will not allow argument to be made until after the prosecution closes its case. 53 Reading law to the jury is not error where the court instructs the jury to disregard it, 54 but the practice is not commendable. 55 And where the record is silent as to the character of the extract sought to be read, no error can be predicated on a refusal to allow the reading of law books to the jury. 58 Counsel may not on argument read as part of his argument 4c People v. Mitchell, 62 Cal. 411; People v. Barnhart, 59 Cal. 381; People v. Lee Chuck, 78 Cal. 329; People v. Smith, 121 Cal. 362. *~> People v. Barnhart, 59 Cal. 402; People v. Lee Ah Yute, 60 Cal. 97. 48 People v. McMahon, 124 Cal. 435. 40 People v. Durrant, 116 Cal. 185. so People v. Molina, 126 Cal. 505; People v. Hall, 94 Cal. 599; People v. Mitchell, 62 Cal. 412; People v. Wheeler, 65 Cal. 77. si People v. Ah Fook, 64 Cal. 380; People v. Beaver, 83 Cal. 419; People v. Abbott, 101 Cal. 647; People v. Kramer, 117 Cal. 651. 52 People v. Lee Chuck, 78 Cal. 317; People v. Wells. 100 Cal. 463; People v. Hamberg, 84 Cal. 474; People v. Devine, 95 Cal. 231; People v. Lemperle, 94 Cal. 48. 53 People v. Williams, 43 Cal. 344; People v. Goldenson, 76 Cal. 348. s* People v. Treadwell, 69 Cal. 226. 55 People v. Forsythe, 65 Cal. 101. 56 People v. Godwin, 123 Cal. 374; People v. Anderson, 44 Cal. 70. 898 CRIMINAL LAW AND PROCEDURE. standard medical works. 57 The court may allow private counsel to assist the district attorney, 58 in its discretion. 59 It is not restricted in allowing such associate counsel to times when the district attorney cannot conduct the pros- ecution. 00 The associate counsel may make the closing argument by permission of the court. 01 TAKING THE CASE FROM THE JURY. Upon a failure of proof in a particular necessary to con- viction, a verdict of not guilty should be directed by the court; 02 but when the failure is not so clear as to present a question of law for the court, it has no power to direct a verdict of not guilty ; it may, however, advise the jury to bring in such a verdict. 03 The jury is not bound to obey, however. 038 - An exception to a refusal to advise the jury to acquit is authorized only when there is an absence of substantial evidence as to some material fact. 04 It is improper when there is evidence of guilt, 65 or where the evidence is conflicting. 68 RULES OF COURT. The object of rules is to expedite the trial of causes and not to delay them, 07 and a strict observance should not be permitted to impede justice. 67a Rules requiring the sub- si People v. Wheeler, 60 Cal. 581; People v. Mitchell, 62 Cal. 412. ss People v. Powell, 87 Cal. 350; People v. Turcott, 65 Cal. 127. 59 People v. Blackwell, 27 Cal. 66; People v. Gregory, 120 Cal. 16; Benton v. Budd, 120 Cal. 332. eo People v. Walters, 98 Cal. 138. si People v. Strong, 46 Cal. 303; People v. Murphy, 47 Cal. 105. ea People v. Jones, 31 Cal. 566; People v. Eagan, 116 Cal. 291. ns People v. Roberts, 114 Cal. 67; People v. Ammerman, 118 Cal. 28; People v. Horn, 70 Cal. 17; People v. Dan- iels, 105 Cal. 266. esa People v. Daniels, 105 Cal. 266. e* People v. Lewis, 124 Cal. 551. es People v. Luchetti, 119 Cal. 502. ee People v. Piggott. 126 Cal. 510. 67 People v. Durrant, 119 Cal. 201. 67a People v. Silva, 121 Cal. 668. DUTIES OF COUNSEL AND THE COURT. 399 mission of instructions to the other side under penalty of having the same refused are not just, 68 AMENDING THE. RECORD. The court has inherent power to amend the record to con- form to the truth, 69 and may do so even after judgment. 70 It is doubtful whether the record can be amended after an appeal. 71 es People v. Williams, 32 Cal. 280. 69 People v. Durrant, 116 Cal. 179; People v. Curtis, 113 Cal. 68. "o People v. Murback, 64 Cal. 370; People v. Goldenson, 76 Cal. 345; People v. McNulty, 93 Cal. 444. i People v. Moore, 103 Cal. 508. CHAPTER LX. INSTRUCTIONS. AS TO MATTERS OF FACT. It is the duty of the jury to decide all questions of fact arising on the general issue of not guilty. It has the right to find the facts and apply to them the law as given by the court. 1 It cannot decide on the pertinency of the evidence. It is in no case the judge of the law, 2 except in prosecution for criminal libel, :! but is bound by the law as given by the court. 4 The jury are the exclusive judges of the credibility of witnesses, of the weight of testimony, of the facts estab- lished, of the presumptions deducible from such facts, 5 and of the credibility and weight of circumstances, 8 unless the verdict indicates that it was given under the influence of passion. 7 For such purpose the jurors may use their eyes as well as their ears, 8 but they are not allowed arbitrarily to believe a part and disbelieve a part of the evi- dence. Their discretion is not unlicensed. The court has the right to state the evidence for the purpose of pointing its instructions and making their pertinency apparent to the jury, if it assumes no fact as proven and states nothing by 1 People v. Lem You, 97 Cal. 224. 2 People v. Ivey, 49 Cal. 56. 3 Constitution Art. 1, sec. 9; Penal Code 251. * People v. Worden, 113 Cal. 569. o People v. Messersmith, 61 Cal. 246; People v. Clark, 84 Cal. 573; People v. Wright, 93 Cal. 564; People v. Eng- lish, 30 Cal. 215. e People v. Barry, 31 Cal. 357. ' People v. Sullivan, 129 Cal. 557; People v. Manning, 18 Cal. 335; People v. Mayes, 66 Cal. 597; People v. Ah Jake, 91 Cal. 98; People v. Freeman, 92 Cal. 359. s People v. Storke, 128 Cal. 486. People v. Strong, 30 Cal. 151. INSTRUCTIONS. 401 way of argument thereon, nor anything calculated, expressly or by way of implication, to indicate a shifting of burden of proof to the defendant. 10 It is for 1 the jury to determine what is the substance and effect of the testimony, 11 the weight of evidence, 12 and to determine the facts and render a verdict in accordance with instructions given. 13 While it is improper for the court to instruct the jury with respect to matters of fact, it may state the testimony and declare the law. 14 The safer course is to confine the instructions, unless requested by defendant, to a few general principles of law. 15 Instructions should contain all applicable principles of law, but no opinion upon the facts. 16 All instructions upon fact are erroneous and should be refused as invading the province of the jury. 17 Instructions dangerously near the border line should not be given. 18 The judge cannot be too cautions in this regard. 19 The jury should not in any case be allowed to deduce the judge's opinion as to the guilt or innocence of the defendant, from his instructions. 20 And where an 10 People v. Brittan, 118 Cal. 409. 11 People v. Gordon, 88 Cal. 422; People v. Choynski, 95 Cal. 643; People v. Lang, 104 Cal. 367; People v. Hertz, 105 Cal. 665; People v. Worthington, 115 Cal. 244. 12 People v. Cline, 83 Cal. 374; People v. Willard, 92 Cal. 482; People v. Travers, 88 Cal. 233; People v. Van Ewan, 111 Cal. 152; People v. Rolfe, 61 Cal. 540; People v. Titherington, 59 Cal. 598; People v. Thomson, 92 Cal. 506; People v. Williams, 59 Cal. 674; People v. Ah Sing, 59 Cal. 400; People v. Malaspina, 57 Cal. 628. is People v. Madden, 76 Cal. 521. i* Constitution, Art VI, sec. 19. is People v. Ah Fung, 17 Cal. 377; People v. Byrnes, SO Cal. 208. ie People v. Samonset, 97 Cal. 448; People v. McNamara, 94 Cal. 509: People v. Van Ewan, 111 Cal. 152; People v. Tapia, 131 Cal. 647. IT People v. Cowgill, 93 Cal. 596; People v. Casey. 65 Cal. 260; People v. Flynn, 73 Cal. 516; People v. Hitchcock, 104 Cal. 485: People v. Webster, 111 Cal. 384; People v. Ah Don. 56 Cal. 188; People v. Dick, 34 Cal. 663; People v. Fong Ching, 78 Cal. 173; People v. Murray, 86 Cal. 35; People v. Travers, 88 Cal. 233; People v. Van Ewan, 111 Cal. 152; People v. Wallace, 89 Cal. 168; People v. Mitchell, 55 Cal. 236. is People v. Opie, 123 Cal. 295. is People v. Hertz, 105 Cal. 660. 20 People v. Stanton, 106 Cal. 139; People v. Van ISwan, 111 Cal. 152. CRIMES--26 402 CRIMINAL LAW AND PROCEDURE", instruction given invades the province of the jury, the "appellate court will not weigh the testimony to determine whether the verdict is right under the evidence. The error is not cured by a general instruction that the jury should tiisregard the opinion of the court as to the facts. 21 In perjury cases the court may instruct as to what facts will ^hOw material testimony. 22 The following have been held to be instructions on the facts : a statement that the wit- nesses undertake to testify to certain facts ; 23 an instruc- tion upon the credibility of relatives of the defendant as witnesses ; 24 upon necessity of a motive ; 25 upon the relative value of direct and circumstantial evidence ; 26 that the evi- dence, if believed, establishes certain facts ; 27 that deceased had threatened to kill defendant; 28 upon the method of weighing testimony, 29 upon the credibility of an accom- plice testifying for the defendant, 30 and that a witness was an accomplice. 31 It is for the jury also to determine the question of idem sonans, 32 the motive of the flight, 33 the strength of corroborating evidence, 34 the presence or absence of malice, 35 or motive, 36 the intent, 37 the felonious character of the appropriation of the goods, 38 whether or not the negligence was criminal, 39 the degree of the crime, 40 21 People v Chew Sing Wing, 88 Cal. 268. 22 People v.' Lena You, 97 Cal. 224. 23 People v. Ellenwood, 119 Cal. 166. 24 People v. Shattuck, 109 Cal. 673; People v. Van Bwan, 111 Cal. 152. 25 People v. Vereneseneckockockhoff, 129 Cal. 497. 26 People v. O'Brien, 130 Cal. 1; People v. Verenesenec- kockockhoff, 129 Cal. 497. 27 People v. Chew Sing Wing, 88 Cal. 268. 28 People v. Roemer, 114 Cal. 51. 29 People v. Newcomer, 118 Cal. 263. so People v. O'Brien, 96 Cal. 171; People v. Bonney, 98 Cal. 279. si People v. Sansome, 98 Cal. 235. 32 People v. Fick, 89 Cal. 144. ss People v. Ross, 115 Cal. 233. s* People v. Whelan, 117 Cal. 559. 35 People v. Roberts, 6 Cal. 214. so People v. Ah Fung, 17 Cal.' 377; People v. Byrnes, 30 Cal. 208. 37 People v. Winters, 93 Cal. 277; People v. Stone, 16 Cal. 369. ss People v. Carrillo, 54 Cal. 63. 39 People v Kilvington, 104 Cal. 86. INSTRUCTIONS. 403 but where it is clear that the offense could be only of a certain degree, it is not improper to instruct as to degree, 41 and an erroneous instruction upon intent is harmless where the defendant was convicted of a lesser offense. 42 But an instruction on facts does not include a caution to the jury against concluding from a ruling of the court that the court had determined the guilt of the defendant, 43 a statement that the evidence is conflicting in certain particulars, 44 that evidence had been introduced tending to show certain facts, 45 a correct statement of the theory of the defendant and the people, 46 that self-defense is not involved where there is no evidence of it in the record, 47 that there is a total absence of evidence as to a particular fact, if true ; 4b that there is a conflict in the evidence when in fact there is, 49 and a caution to the jury about defendant's evidence, 50 but the better rule is to refrain from comments on defend- ant's testimony. 01 The jury may be directed to do those things which they evidently knew or would do without being told. 5 - A statement by the court to counsel, not addressed to jury, as to the reasons for its rulings, is not a charge to the jury. 53 The court may instruct the jury 40 People v. Gibson, 17 Cal. 283; People v. Bealoba, 17 Cal. 389; People v. Martinez, 66 Cal. 278; People v. Hunt, 59 Cal. 430; People v. Bawden, 90 Cal. 197; People v. Cronin, 34 Cal. 210; People v. Russell, 81 Cal. 618. 41 People v Kruger, 100 Cal. 523. 42 People v.' Wallace, 101 Cal. 281. 43 People v. Johnson, 104 Cal. 418 44 People v. Flynn, 73 Cal. 511; People v. Hitchcock, 104 Cal. 485. 45 People v. Giancoli, 74 Cal. 642; People v. Cummings, 113 Cal. 90; People v Perry, 65 Cal. 569; People v. Vasquez, 49 Cal. 560. 46 People v. Worden, 113 Cal. 569. 47 People v. Worthington, 115 Cal. 242. 48 People v. Prather, 120 Cal. 660; People v. Sternberg, 111 Cal. 8. 49 People v. Un Dong, 106 Cal. 83. so People v. Murray, 86 Cal. 31; People v. Van Ewan, 111 Cal. 150; People v. Faulke, 96 Cal. 20; People v. Lang, 104 Cal. 368; People v. Anderson, 105 Cal. 35. si People v. Hitchcock, 104 Cal. 486; People v. Curry, 103 Cal. 548; People v. O'Brien, 96 Cal. 182. 52 People v. Benc, 130 Cal. 159; People v. Newcomer, 118 Cal. 263; People v. Barthleman, 120 Cal. 7. 53 People v. McLean, 84 Cal. 480. 404 CRIMINAL LAW AND PROCEDURE. as to a conclusion to be drawn from facts found to be true. 5 * But the instruction upon the power to produce stronger evidence should rarely be given. 55 Instructions tending to show the commission of another crime are errone- ous. 56 The law is not left to the jury by telling them that a certain instruction might or might not be involved in the case as they determine the facts. 57 Where the instruction uses the word " unlawfully " it should be defined. 58 An instruction as to the danger of conviction may be modified by directing the jury to consider matters of common knowl- edge. 59 Argumentative 'instructions should be refused. 60 The effect of evidence should be limited by the court when it is admissible onlv for a limited purpose. 01 A crime may be designated as an outrage by the court. 02 The charge must be considered as a whole to determine whether it is an instruction on facts. 63 Where the jury is told that it is within their power to find, it means that it is within the province of the jury to find. 04 An instruction as to the rule of evidence in most cases will justify the jury in consider- ing it as a rule of that case. 03 ASSUMING FACTS. The court is not permitted to assume any fact which is not admitted, or on which there is a conflict of evidence. 66 s* People v. Jones, 123 Cal. 65. 55 People v. Cuff, 122 Cal. 589; People v. O'Brien* 96 Cal. 180; People v. Streuber, 121 Cal. 431. ss People v. Tipton, 73 Cal. 405. 57 People v. Morton, 72 Cal. 62. ss People v. Byrnes, 30 Cal. 207. 59 People v. Sternberg, 127 Cal. 510; People v. Travers, 88 Cal. 233; People v. Ebanks, 117 Cal. 652. eo People v. Winters, 125 Cal. 325. ex People v. Estrada, 49 Cal. 171; People v. Mallon, 103 Cal. 514. 02 People v. Pool, 27 Cal. 572. es People v. Dowell, 64 Cal. 467; People v. Forsythe, 65 Cal. 101. e* People v. Pool, 27 Cal. 572. 65 People v. Ribolsi, 89 Cal. 492. 66 People v. Cotta, 49 Cal. 166; People v. Buster, 53 Cal. 613; People v. Bishop, 81 Cal. 113; People v. Carabin, 14 Cal. 439; People v. Strong, 30 Cal. 158; People v. Gross, 123 Cal. 389; People v. Roberts, 122 Cal 377; Peo- ple v. Thompson, 115 Cal. 160; People v. Ah Fung, 16 INSTRUCTIONS. 405 But where there is no conflict in the evidence the court may assume a fact. 07 Admitted facts, 68 those proved without shadow of conflict, 69 and those not disputed, may be assumed by the court. 70 Instructions are always to be given with reference to the facts proved, and if there is no evidence on a particular point, the court may so state. 71 But an instruction that no evidence has been introduced which tends in slightest degree to show a fact borders dangerously upon matters of fact. 72 It is erroneous to assume the guilt of the defendant ; 73 to show any hostility towards him, 74 or to give any opinion as to the evidence. 75 Neither is the court authorized to tell the jury that defendant's innocence conclusively appears from the evidence, 76 nor that there is no evidence of a fact where there is evidence which tends to show it. 77 Instructions should be hypothetical and based on the hypothesis of the truth or falsity of the evidence. 78 Cal. 137; People v. Tapia, 131 Cal. 647; People v. Hurtado, 63 Cal. 288; People v. Ramirez, 56 Cal. 537; Pec^ pie v. Lanagan, 81 Cal. 144; People v. Gordon, 88 Cal". 426; People v. Choynski, 95 Cal. 643; People v. Hertz, 105 Cal. 665; People v. Williams, 17 Cal. 142; People v. Stanton, 106 Cal 142; People v. Taylor, 36 Cal. 265; People v. Dick, 32 Cal. 213; S. C. 34 Cal. 633. 67 People v. Phillips, 70 Cal. 61; People v. Worthington, 115 Cal. 245; People v. Lee Sare Bo, 72 Cal. 623; Peo- ple v. Wong Ah Foo, 69 Cal. 180. es People v. Hobson, 17 Cal. 424; People v. Garcia, 25 Cal. 535; People v. Pool, 27 Cal. 572; People v. Strong, 30 Cal. 151; People v. Jones, 32 Cal. 80; People v. Jim Ti, 32 Cal. 60; People v. Ah How, 34 Cal. 218; People v. McCrea, 32 Cal. 98. 69 People v. Putman, 129 Cal. 258; People v. Messersmlth, 61 Cal. 249; People v. Phillips, 70 Cal. 61; People v. Lee Sare Bo, 72 Cal. 623; People v. Mallon, 103 Cal. 513. TO People v. Baldwin, 117 Cal. 244. 71 People v. Gannon, 61 Cal. 476; People v. King, 27 Cal. 507; People v. Byrnes, 30 Cal. 207; People v. Taylor, 36 Cal. 266; People v. Best, 39 Cal. 691. 72 People v. Schoedde, 126 Cal. 373; People v. Plyler, 126 Cal. 379. 73 People v. Lanagan, 81 Cal. 142; People v. Bruggy, 93 Cal. 488. 74 People v. Travers, 88 Cal. 233. 75 People v. Baldwin, 117 Cal. 244. 76 People v. Streuber, 121 Cal. 431. 77 People v. Curlee, 53 Cal. 604. 7s People v. Levison, 16 Cal. 99; People v. Strong, 30 Cal. 158; People v. Buster, 53 Cal. 613. 406 CRIMINAL LAW AND PROCEDURE. The facts must be affirmatively shown, not assumed. 79 The court should never invade the province of the jury, usurp its powers, nor assume the existence of facts necessary to convict. 80 It may assume that the killing was murder where there is no evidence of manslaughter, 81 but where the killing is not admitted, an instruction that it was not disputed is error. 82 Presumption of fact falls within the exclusive province of the jury. 8 " Where there is no con- flict in the evidence the court may presume facts, 84 but it cannot presume the degree of guilt. 85 In the absence of legal presumption the court cannot instruct the jury that one fact should be inferred from another fact, 8 * but it may instruct on the presumption of innocence 87 and as to the credibility of a witness. 88 The jury is, however, the sole judge of the credibility of witnesses, 89 and is at liberty to discredit the testimony of any witnesses or give such weight to it as it sees fit. 00 The jury should not be instructed to People v. Atherton, 51 Cal. 495. so People v. Ybarra, 17 Cal. 166; People v. Messersmith, 61 Cal. 249; People v. Chew Sing Wing, 88 Cal. 270; People v. Williams, 17 Cal. 142. si People v. Welch, 49 Cal. 174. 82 People v. Lee Chuck, 74 Cal. 30. 83 People v. Walden, 51 Cal. 588; People v. Carrillo, 54 Cal. 64; People v. Wong Ah Ngow, 54 Cal. 153; Peo- ple v Messersmith, 61 Cal. 249; People v. Mitchell, 55 Cal. 237; People v. Williams, 73 Cal. 534. si People v. Lee Sare Bo, 72 Cal. 623. ss People v. Gibson, 17 Cal. 283; People v. Hunt, 59 Cal. 433; People v. Lee, 60 Cal. 86; People v. Bawden, 90 Cal. 197. 86 People v. Carrillo, 54 Cal. 64; People v. Williams, 73 Cal. 534; People v. Cobler, 108 Cal. 544. ST People v. Chaves, 122 Cal. 134. ss People v. Murray, 86 Cal. 31; People v. Dolan, 96 Cal. 315; People v. Lang, 104 Cal. 367; People v. Webster, 111 Cal. 384. so People v. Eckert, 16 Cal. Ill; People v. Creegan, 121 Cal. 554;' People v. Bolanger, 71 Cal. 17; People v. Kraker, 72 Cal. 459; People v. Sternberg, 127 Cal. 510; People v. Vance, 21 Cal. 400; People v. Williams, 59 Cal. 674; People v. O'Brien, 130 Cal. 1; People v. Cesena, 90 Cal. 381; People v. Gibson, 53 Cal. 601; People v. Van Ewan, 111 Cal. 152. o People v. Compton, 123 Cal. 403; People v. Eckert, 16 Cal. Ill; People v. Ybarra, 17 Cal. 166; People v. Gib- son, 53 Cal. 601; People v. Messersmith, 61 Cal. 246; People v. Gordon, 88 Cal. 422; People v Choynski, 95 INSTRUCTIONS. 407 weigh, examine and take the testimony of the defendant, who testifies in his own behalf, into consideration the same as other witnesses, for the jury is the exclusive judge of the weight of his testimony as well as of other witnesses. 91 ON DISTRUSTING WITNESSES. On all proper occasions the court should instruct the jury that a witness who is false in one part of his testimony is to be distrusted in others, and where the crime with which the accused is charged can be established only by means of the testimony of an accomplice, it is a proper occasion for the court in the discharge of its duty to protect the accused, to call attention of the jury to the well known fact that the testimony of an accomplice ought to be viewed with distrust. 1 An instruction upon distrusting witnesses is not made erroneous by additions of explanatory remarks as to the meaning of the rule, when such remarks are correct. 2 It is not necessary that the false testimony was wilfully given for the jury to distrust the witness; 3 but the addition of the word "wilful" does not render an instruction erroneous. 4 The jury may be told that they may reject the whole testimony of such a witness, 5 but they are not bound to do so. 6 The rule does not require the absolute rejection Cal. 640; People v. Stanton, 106 Cal. 139; People v. Anderson, 105 Cal. 32; People v. Van Ewan, 111 Cal. 144; People v. Ellenwood, 119 Cal. 171; People v. Hitch- cock, 104 Cal. 486; People v. Murray, 86 Cal. 31; People v. Christensen, 85 Cal. 568. 91 People v. Cowgill, 93 Cal. 596; People v. Rodundo, 44 Cal. 538; People v. McLean, 84 Cal. 482. 1 People v. Bonney, 98 Cal. 278. 2 People v. Sternberg, 127 Cal. 510. 3 People v. Tread-well, 69 Cal. 226; People v. Flynn, 73 Cal. 516; People v. Howard, 111 Cal. 655;' People v. Luchetti, 119 Cal. 508; People v. Righetti, 66 Cal. 184; People v. Ah Sing, 95 Cal. 656; People v. Colvin, 118 Cal. 352. * People v. Luchetti, 119 Cal. 501. s People v. Sprague, 53 Cal. 491; People v. Hicks, 53 Cal. 355; People v. Soto, 59 Cal. 369; People v. Righetti, 66 Cal. 185; White v. Disher, *67 Cal. 403; People v. Treadwell, 69 Cal. 238; People v. Clark, 84 Cal. 583; Peo- ple v. Oldham, 111 Cal. 655; People v. Paulsell, 115 Cal. 6; People v. Luchetti, 119 Cal. 507; People v. Flynn, 73 Cal. 516. s People v. Hicks, 53 Cal. 355; People v. Oldham, 111 Cal. 655. 408 CRIMINAL LAW AND PROCEDURE. , of the testimony of such witnesses, 7 and is not applicable to a witness who makes an innocent mistake. 8 The court is not authorized to single out a particular witness in such an instruction." The instruction should be that a witness wil- fully false in one part of his testimony is to be distrusted in others, 10 conforming to the exact language of section 2061 of the Code of Civil Procedure. 11 The important element is that the wilfully false testimony be on a material matter. 1 ' 2 ERRONEOUS INSTRUCTIONS FOLLOWED BY PROPER ONES. Erroneous instructions followed by a correct statement of the law afterwards arc not cured, 13 but instructions which are merely defective, when followed by proper and correct instructions on the same point, are 14 CONSTRUCTION. Instructions must be taken as a whole in considering their correctness. 1 Each sentence of a charge to the jury ' People v. Hicks, 53 Cal. 354; White v. Disher, 67 Cal. 403; People v. Paulsell, 115 Cal. 6; People v. Treadwell, 69 Cal. 238. s People v. Strong, 30 Cal. 151; People v. Sprague, 53 Cal. 494; People v. Soto, 59 Cal. 369; White v. Disher, 67 Cal. 403. 9 People v. Arlington, 131 Cal. 231; People v. Paterson, 124 Cal. 102; Thomas v. Gates, 126 Cal. 1. 10 Sec. 2061 Code of Civil Procedure; People v. Flynn, 73 Cal. 515; People v. Luchetti, 119 Cal. 508. 11 People v. Paulsell, 115 Cal. 6; People v. Plyler, 121 Cal. 160; People v. Plynn, 73 Cal. 511; White v. Disher, 67 Cal. 403; People v. Sprague, 53 Cal. 494. 12 People v. Plyler, 121 Cal. 160; People v. Sprague, 53 Cal. 494; People v. Soto, 59 Cal. 368; People .v. Lon Yeck, 123 Cal. 246; People v. Treadwell, 69 Cal. 226; People v. Ah Sing, 95 CaL 656. is People v. Wong Ah Ngow, 54 Cal. 151; People v. Messer- smith, 57 Cal. 576; People v. Bush, 65 Cal. 129; People v. Thomson, 92 Cal. 512. It is held in People v. Moore, 8 Cal. 90, that giving an erroneous instruction, subse- auently corrected by a proper one, so that the jury is not misled, is not a ground for a new trial. i-t People v. Ye Park, 62 Cal. 204. i People v. Leonard, 106 Cal. 302; People v. Armstrong, 114 Cal. 573; People v. Fehrenbach, 102 Cal. 394; People v. Brittan, 118 Cal. 409; People v. Anderson, 105 CaL 32; People v. Lee Chuck, 78 Cal. 317; People v. Kern- aghan, 72 Cal. 612; People v. Gibson, 106 Cal. 475; Peo- INSTRUCTIONS. 409 need not contain all the conditions and limitations; 2 it is sufficient if, when taken together, and without straining any portion of the language the instructions harmonize and fairly and correctly state the law applicable, though one of the instructions fails to contain all of the limitations and conditions, which are to be gathered from the entire text. 3 Where the instructions fairly state the law, errors in particular ones* and mere technicalities will be disre- garded. 5 Conflicting instructions must be read in connec- tion with the context." But this rule does not apply to an incorrect statement of law in any particular instruction. 7 Where an instruction is proper for one purpose, but not for another, it should be limited to the purpose for which it is competent. 8 Thus where an erroneous instrucuon was given, as to larceny, in a robbery case, and a correct one given as to robbery, it is not ground for reversal. 9 Where error is on an immaterial fact, or in an unnecessary part, it is disregarded. 1 " Surplusage does not vitiate. 11 It is pie v. Doyell, 48 Cal. 85; People v. Welch, 49 Cal. 182; People v. Nelson, 56 Cal. 81; People v. Gray, 61 Cal. 182; People v. Morine, 61 Cal. 370; People v. Hurtado, 63 Cal. 292; People v. McCurdy, 68 Cal. 582; People v. Mize, 80 Cal. 41; People v. Clark, 84 Cal. 583; People v. Worden, 113 Cal. 569; People v. Cleveland, 49 Cal. 577; People v. Chun Heong, 86 Gal. 329; People v. Bruggy, 93 Cal. 476; People v Dole, 122 Cal. 499; People v. Leary, 105 Cal. 486; People v. Hecker, 109 Cal. 452; People v. Bagnell, 31 Cal. 410. 2 People v. Neber, 125 Cal. 560; People v. Doyell, 48 Cal. 85; People v. Worden, 113 Cal. 569. " People v. Hurtado, 63 Cal. 288; People T. Clark, 84 Cal. 583; People v. Nelson, 56 Cal. 77. * People v. Tomlinson, 66 Cal. 344. People v. Moore, 8 Cal. 90. " People v. Turcott, 65 Cal. 126; People v. Hecker, 109 Cal. 466. 7 People v. Westlake, 124 Cal. 452; People v. Casey, 65 Cal. 270; People v. Wong Ah Ngow, 54 Cal. 151; People v. Bush, 65 Cal. 129; People v. Marshall, 112 Cal. 422. s People v. Collins, 48 Cal. 277; People v. Ah Yute, 53 Cal. 615. ' People v Riley, 65 Cal. 107. i" People v. Ye Park, 62 Cal. 204; People v. Ah Loy, 57 Cal. 566; People v. Winters, 93 Cal. 282. 11 People v. Flores, 1*4 Cal. 426. 410 CRIMINAL LAW AND PROCEDURE. presumed that the jury understood the charge of the court in its connected relation. 12 MODIFICATION BY THE COURT. The instructions should be given, when requested, if they are applicable to any testimony in the case, 13 and in the words in which they are requested, if they are correct, 14 but the court may alter, amend or modify them. 15 A strong coloring favorable to the defendant is not ground for refusal. If they state the law correctly it is better for the court to give an instruction with modifications, although no error may be committed by refusing it. 18 Instructions in the language of. the statute may be 1 used. 17 READING STATUTES AND DECISIONS. It is not error to read the statutes and decisions of the Supreme Court to the jury, where no exceptions are taken, 18 but it is not proper for the court to read from opinions of the Supreme Court in other cases as to what is not the law. The court should state only what the law is. 19 The reading of decisions or opinions from the Supreme Court in other cases is a dangerous practice in any event, 20 and is not commendable. 21 The court may read sections 12 People v. Bagnell, 31 Cal. 410; People v. Gray, 61 Cal. 182; People v. Clark, 84 Cal. 583; People v Bruggy, 93 Cal. 484. 13 People v. Taylor, 36 Cal. 255; People v. Silva, 121 Cal. 668; People v. Demasters, 105 Cal. 669; People v. Heck- er, 109 Cal. 460. i* People v. Williams, 17 Cal. 142. is People v. Hall, 94 Cal. 595; People v. Barney, 114 Cal. 554; People v. Kaiser, 119 Cal. 456; People v. Dodge, 30 Cal. 448; People v. Williams, 32 Cal. 288; People v. Davis, 47 Cal. 93; People v. Cotta, 49 Cal. 166; People v. Dennis, 39 Cal. 625; People v. Nelson, 56 Cal. 81; People v. Gray, 61 Cal. 181; People v. Morine, 61 Cal. 367. 16 People v. Williams, 32 Cal. 280. IT People v. Henderson, 28 Cal. 466. is People v. Galvin, 9 Cal. 116. i People v. Paulsell, 115 Cal. 6. 20 People v. McNabb, 79 Cal. 419; People v. Paulsell, 115 Cal. 6. 21 People v. Holmes, 118 Cal. 444. INSTRUCTIONS. 411 of the code to the jury 22 and designate the sections by num- bers, 23 but where code sections are read they should be taken down by the court reporter. 24 Counsel should not be permitted, however, to read from law books ; it is the duty of the court to give the law. 26 CONTRADICTIONS, INCONSISTENCY AND AMBIGUITY. Contradictory instructions are fatal and grounds for a new trial, 26 but not where they do not prejudice the substantial rights of the defendant or operate injuriously to him. 27 But confused instructions which are so ambigu- ous as clearly to prejudice the defendant will warrant a reversal, 28 though ambiguity caused by mere grammatical errors is not fatal. 29 While inconsistent instructions are grounds for a new trial, 30 a mere want of perspicuity which does not injure the defendant is not. 31 Neither are mean- ingless instructions where the jury is not misled thereby. 32 REPETITION. It is only necessary for the court to give instructions which embody the law of the case; it is not necessary to give other instructions which also embody the law, 33 and 22 People v. Shaughnessy, 110 Cal. 598; People v. White, 116 Cal. 19. 23 People v. Mortier, 58 Cal. 262; People v. Brown, 59 Cal. 354; People v. Lewis, 64 Cal. 404. 2* People v. Brown, 59 Cal. 354. 25 People v. Anderson, 44 Cal. 65; People v. Treadwell, 69 Cal. 239. 20 People v. Wreden, 59 Cal. 392; People v. Hamilton, 62 Cal. 384; People v. Campbell, 30 Cal. 312; People v. Pearne, 118 Cal. 154; People v. Thomson, 92 Cal. 506; People v. Valencia, 43 Cal. 552; People v. Messersmith, 57 Cal. 575; People v. Anderson, 44 Cal. 69; People v. Bush, 65 Cal. 134. 27 People v. Smith, 59 Cal. 601; People v. Ah Luck, 62 Cal. 503; People v. Velarde, 59 Cal. 457; Dennison v. Chap- man, 105 Cal. 447. 28 People v. Maxwell, 24 Cal. 14; People v. Monahan, 59 Cal. 389; People v. Phillips, 70 Cal. 63. 20 People v. Alsemi, 85 Cal. 434. so People v. Ward, 105 Cal. 652. si People v. Moore, 8 Cal. 90. 32 People v. Angeles, 61 Cal. 188. 33 People v. Kelly, 28 Cal. 424; People v. Dodge, 30 Cal. 450; People v. Ramirez,- 56 Cal. 338; People v. Etting, 99 Cal. 578. 412 CRIMINAL LAW AND PROCEDURE. a refusal to give instructions already given in substance is not error. 34 Instructions when once given need not be repeated, 35 but the safer course is for the court not to refuse any instruction asked on behalf of a defendant, if it cor- rectly states the law, 30 as a refusal to give instructions warranted by evidence, is a vital error, 37 and it is better to repeat instructions than to run the risk of error by refus- ing. 38 REQUESTED INSTRUCTIONS. A failure to instruct on a given point is not error when instructions thereon are not requested by the defend- ant. 39 If the defendant wants further instructions upon 3* People v. Murray, 41 Cal. 66; People v. Ah Chung, 54 Cal. 403; People v. Durrant, 116 Cal. 179; People v. Cochran, 61 Cal. 548; People v. O'Brien, 78 Cal. 41; People v. Elliott, 119 Cal. 594. as People v. Barney, 114 Cal. 554; People v. Williams, 32 Cal. 280; People v. Bush, 71 Cal. 602; People v. Chaves, 122 Cal. 134; People v. Van Horn, 119 Cal. 324; People v. Schmidt, 106 Cal. 48; People v. Douglass, 100 Cal. 1; \ People v. Cowgill, 93 Cal. 596; People v. Rodley, 131 Cal. 240; People v. De Graaff, 127 Cal. 676; People v. Quinn, 127 Cal. 542; People v. Hope, 62 Cal. 291; People v. Swalm, 80 Cal. 46; People v. Madden, 76 Cal. 521; People v. Elliott, 119 Cal. 594; People v. Treadwell, 69 Cal. 226; People v. Varnum, 53 Cal. 630; People v. All Chung, 54 Cal. 403; People v. Lenon, 79 Cal. 625; Peo- ple v. Giancoli, 74 Cal. 642; People v. McCoy, 71 Cal. 395; People v. Pacheco, 70 Cal. 473; People v. Doane, 77 Cal. 560; People v. Fine, 77 Cal. 147; People v. Walters, 98 Cal. 138; People v. Samonset, 97 Cal. 448; People v. Benc, 130 Cal. 159; People v. Barthleman, 120 Cal. 7; People v. Kloss, 115 Cal. 567; People v. Roemer, 114 Cal. 51; People v. McNamara, 94 Cal. 509; People v. Neary, 104 Cal. 373; People v. Roney, 100 Cal. 375. se People v. Lachanais, 32 Cal. 434. 3? People v. Adams. 85 Cal. 231. ss People v. Strong, 30 Cal. 151. as PeoDle v. Guidice, 73 Cal. 226; People v. Barney, 114 Cal. 558; People v. Arnold, 116 Cal. 688; People v. Northey, 77 Cal. 618; People v. Bruggy, 93 Cal. 485; People v. Fice, 97 Cal. 460; People v. Oliveria, 127 Cal. 376; People v. Haun, 44 Cal. 96; People v. Ah Wee, 48 Cal. 239; People v. Gray, 66 Cal. 277; People v. Flynn, 73 Cal. 514; People v. Olsen, 80 Cal. 128; People v. McLean. 84 Cal. 483; People v. Marks, 72 Cal. 46; Peo- ple v. Dollor, 89 Cal. 517; People v. Brittan, 118 Cal. 409; People v. Appleton, 120 Cal. 250; People v. Frank- lin. 70 Cal. 641; People v. Winthrop, 118 Cal. 91; People v. Wallace, 109 Cal. 611; People v. Gray, 66 Cal. 271; INSTRUCTIONS. 413 any point he should ask for them. 40 It is the duty of the court to give of its own motion only a few general instruc- tions applicable to the law of the case. 41 The court may require written instructions asked for to be handed to it before argument, in the absence of any injury being shown to the defendant, 42 but not where compliance with such a rule works injury to a party. 43 The jury may take the instructions with them to the jury room, 44 but the practice is to take only the ones given them, not those refused. 46 The court may recall the jury for further instructions without any request on their part. 45a The request by the jury for further instructions does not confine the court to the points upon which instructions are asked, provided the language used, though not the best that could hare been used, was not such that the jury could have been misled, and the court may instruct upon such further points as it sees fit. 46 Exceptions to the instructions may be made at the trial. 47 Instructions favorable to the defendant, although verging on error, do not entitle to a new trial. 48 The defendant cannot complain upon appeal of error in instructions given at his own request. 49 But where the instructions are confessedly erroneous, they are not cured by a showing that the defendant requested similar instruc- tions. 50 People v. Christensen, 85 Cal. 571; People v. McNutt, 93 Cal. 658; People v. Ahern, 93 Cal. 519; People v. Mar- shall, 120 Cal. 70. 40 People v. Byrnes, 30 Cal. 207. 41 People v. Williams, 32 Cal. 285. *2 People v. Sears, 18 Cal. 635; People v. Williams, 32 Cal. 289. 43 People v. Demasters, 105 Cal. 669; People v. Silva, 121 Cal. 670. 44 People v. Cummings, 57 Cal. 89. 45 People v. Barthleman, 120 Cal. 7. 4sa People v. Perry, 65 Cal. 568; Penal Code 1138. 46 People v. M'Kay, 122 Cal. 628. 4v People v. Chu Quong, 15 Cal. 332. 48 People v. Messersmith, 61 Cal. 246; People v. Lundin, 120 Cal. 308; People v. Turcott, 65 Cal. 126. 40 People v. Rangod, 112 Cal. 669; People v. Holmes, 126 Cal. 462; People v. Lon Yeck, 123 Cal. 246; People v. Lopez, 59 Cal. 362. BO People v. Cole, 127 Cal. 545. 414 CRIMINAL LAW AND PROCEDURE. APPLICATION TO FACTS. Instructions must be based upon the testimony in the case, and must be applicable to the facts, and justified by the evidence, 51 or based upon a theory logically deducible from the facts, 62 and not upon a hypothetical case. 53 But an instruction on the hypothesis of guilt may be proper, 54 pro- vided it does not invade the province of the jury, 55 yet the practice of giving such instruction is not commendable. 58 And an instruction, if legally correct, based on the hypo- thesis of the truth of the defendant's testimony, is proper, 57 but abstract statements of the law, which can serve no useful purpose, are always improper, and should be refused. 88 Errors upon merely abstract principles of law will not be reviewed. 59 Inapplicable instructions tending 01 People v. Arnold, 15 Cal. 477; People v. Byrnes, 30 Gal. 207; People v. Best, - Cal. 691; People v. Atherton, 51 Cal. 495; People v. Sanchez, 24 Cal. 28; People v. Coch- ran, 61 Cal. 548; People v. Hecker, 109 Cal. 452; People . v. Brown, 130 Cal. 592; People v. Davis, 47 Cal. 93; People v. Turley, 50 Cal. 469; People v. Lee Gam, 69 Cal. 552; People v. Chavez, 103 Cal. 408; People v. Mur- back, 64 Cal. 371; People v. Williams, 32 Cal. 280; Per- kins v. Eckert, 55 Cal. 405; People v. Murphy, 47 Cal. 103; People v. Ramirez, 56 Cal. 533; People v. Bird, 60 Cal. 7; People v. Barry, 90 Cal. 41; People v. Hartman, 130 Cal. 488; People v. Worthington, 122 Cal. 583; Peo- ple v. Bourke, 66 Cal. 456; People v. Juarez, 28 Cal. 380; People v. March, 6 Cal. 543; People v. Gleason, 122 Cal. 370; People v. Devine, 95 Cal. 227; In re Calkins. 112 Cal. 296; People v. Fellows, 122 Cal. 233; People v. Oldham, 111 Cal. 648. 62 People v. Sanchez, 24 Cal, 17; People v. Byrnes, 30 Cal. 207; People v. Best, 39 Cal. 691; People v. Atherton, 51 Cal. 498; People v. Bourke, 66 Cal. 456. 53 People v. Byrnes, 30 Cal. 207; People v. Taylor, 36 Cal. 255; People v. Atherton, 51 Cal. 598; People v. Gilbert, 60 Cal. 109. o* People v. Bruggy, 93 Cal. 477. oo People v. Westlake, 62 Cal. 303; People v. Lemperle, 94 Cal. 46; Peoplo v. Hill, 116 Cal. 568; People v. Milner, 122 Cal. 181. oo People v. Dixon, 94 Cal. 255. 57 People v. Reefer, 65 Cal. 234; People v. Hecker, 109 Cal. 460. 68 People v. Smith, 105 Cal. 676; People v. M'Kay, 122 Cal. 629; People v. Roberts, 6 Cal. 214; People v. March, 6 Cal. 548; People v. Best, 39 Cal. 691; People v. Williams, 43 Cal. 351: People v. Gibbs, 98 Cal. 661. 09 People v. Walsh, 43 Cal. 447. INSTRUCTIONS. 415 to confuse the jury, are reversible error, 00 as where instruc- tions are given on circumstantial evidence when all the evidence in the case is direct. 61 Argumentative instruc- tions are not permitted. 02 In the absence of a bill of excep- tions which contains the evidence in the case, or an authen- tication by an endorsement of the judge, showing his action on the instructions, the appellate court will presume that the instructions given were correct if they are applicable to any conceivable state of facts, 03 but where they are wrong under every conceivable state of facts, the court will review with- out a bill of exceptions or authentication by the judge. * It is not good practice to instruct the jury as to the purpose or object of the statute 65 as to the nature of the offense charged ; 60 that it is safer to err in favor of the defendant, 67 or that as jurors they are not bound to believe what they believe as men. 08 Instructions can only be reviewed from their contents, and the manner of the judge in giving them co People v. Devine, 95 Cal. 227; People v. Gleason, 122 Cal. 372. si People v. Turner, 65 Cal. 540; People v. Sheldon, 68 Cal. 438. ez People v. Barney, 114 Cal. 554. es People v. Whitney, 53 Cal. 420; People v. Worden, 113 Cal. 576; People v. Dick, 32 Cal. 213; People v. Smith, 57 Cal. 130; People v. Donguli, 92 Cal. 609; People v. Ferguson, 34 Cal. 309; People v. Clark, 84 Cal. 581; People v. O'Leary, 77 Cal. 30; People v. Trim, 37 Cal. 274; People v. Bemmerly, 87 Cal. 117; People v. Keeley, 81 Cal. 212; People v. O'Brien, 78 Cal. 41; People v. Beaver, 83 Cal. 419; People v. Thompson, 28 Cal. 216; People v. Rogers, 81 Cal. 209; People v. Marseiler. 70 Cal. 98; People v. Martin, 32 Cal. 92; People v. Tee- herow, 40 Cal. 286; People v. Botirke, 66 Cal. 455; Peo- ple v. Johnson, 61 Cal. 142; People v. Padillia, 42 Cal. 538; People v. January, 77 Cal. 179; People v. Ah Lee Boon, 97 Cal. 175; People v. Clark, 106 Cal. 36; People v. Wallace, 107 Cal. 137; People v. Ludwig, 118 Cal. 329. * People v. Strong, 46 Cal. 303; Peoole v. Donahue, 45 Cal. 321; People v. King, 27 Cal. 507; People v. Torres, 38 Cal. 143; People v. Dick, 32 Cal. 215; S. C., 34 Cal. 665; People v. Brotherton, 47 Cal. 404; People v. Smith, 57 Cal. 131: People v. Gilbert. 60 Cal. 112. es People v. Slater, 119 Cal. 620. es People v. Brennan, 121 Cal. 495. 67 People v. Durrant, 116 Cal. 179; People v. Findlsy 132 Cal. 301. 68 People v. Ammerman, 118 Cal. 24. 416 CRIMINAL LAW AND PROCEDURE. cannot be considered upon appeal, unless his misconduct is made to appear in the mode prescribed by the code. 69 MUST BE IN WRITIXC. The court cannot give oral instructions without the con- sent of the accused. 70 but where it is on an immaterial mat- ter it is not reversible error ; 71 such as a conversation by the court with the jury as to verdict, not prejudicial to the defendant. 72 Oral instructions cannot be given even after the jury has returned for further instructions, 73 nor can modifications of instructions be so given. 74 Oral instruc- tions must be reduced to writing by the judge, or other per- son, or taken down by the shorthand reporter. 75 Instruc- tions need not be in writing if taken down by the reporter. 76 The oral directions to< the jury to return and fix the degree, is not a charge necessary to be in writing. 77 Oral instruc- tions may be given with the express consent of the accused, or by the mutual consent of the parties, 78 but the record must show such consent, 79 as it cannot be presumed, even 6 People v. De Graaff, 127 Gal. 678. 70 People v. Hersey, 53 Cal. 574; People v. Carrillo, 70 Cal. 645; People v. Cox, 76 Cal. 282; People v. Leary, 105 Cal. 497; People v. Prospero, 44 Cal. 186; People v. Beeler, 6 Cal. 247; Penal Code 1127; People v. Payne, 8 Cal. 344; People v. Trim, 37 Cal. 276; People v. San- ford, 43' Cal. 35; People v. Ah Fong, 12 Cal. 347; People v. Woppner, 14 Cal. 438; People v. Chares, 26 Cal. 79. 71 People v. Jackson, 57 Cal. 316; People v. Beck, 58 Cal. 214. 72 People v. Leary, 105 Cal. 487. 73 People v. Woppner, 14 Cal. 437; People v. Chares, 26 Cal. 79; People v. Trim, 37 Cal. 276. 74 People v. Payne, 8 Cal. 341; People v. Woppner. 14 Cal. 438; People v. Chares, 26 Cal. 79; People v. Trim, 37 Cal. 276; People v. Stanford, 43 Cal. 35; People v. Her- sey, 53 Cal. 575; Penal Code 1093. 75 People v. Carrillo, 70 Cal. 643. 76 People v. Curtis, 76 Cal. 57; People v. Cox, 76 Cal. 281; People v. Hersey, 53 Cal. 575; People v. Prospero, 44 Cal. 186; Penal Code 1093. 77 People v. Bonney, 19 Cal. 427; People v. Jackson, 57 Cal. 317. 78 People v. Bumberger, 45 Cal. 650; People v. Kearney, 43 Cal. 383. 7 People v. Trim, 37 Cal. 274. INSTRUCTIONS. 41 7 where the defendant is present and does not object. 80 It is the duty of the court to certify oral instructions, when taken down by the reporter and written out, so as to make them a part of the record. 81 The appellate court will not presume, however, that the instructions were oral because the record does not state affirmatively that they were in writing. 82 The presumption is the other way, and unless the record affirmatively shows the contrary, the court will presume they were in writing, 83 or were taken down by the reporter. 84 AUTHENTICATION. It is the duty of the court to certify the instructions so as to make them a part of the record. 85 They should be signed by the judge and marked whether given or refused. 8 * But instructions given by the court of its own motion, need not be marked. It is sufficient if it appears that the charge was given. 87 The reason for the refusal to give an instruction need not be given, 88 except where it was refused upon the ground that it had been already given, when the reason for refusal must be stated and the refusal must be based on that ground alone. 89 But this rule is qualified to the extent that the instructions asked for be free from objections. 90 DEFINITIONS AND GENERAL PRINCIPLES. In every crime or public offense there must exist a union so People v. Sanford, 43 Cal. 29; People v. Prospero, 44 Cal. 186; People v. Chares, 26 Cal. 79; People v. Leary, 105 Cal., 502. si People v. Clark, 106 Cal. 32. 82 People v. Wright, 45 Cal. 260. ss People v. Garcia, 25 Cal. 532; People v. Shuler, 28 Cal. 496; People v. Chung Lit, 17 Cal. 321; People v. Bum- berger, 45 Cal. 650; People v. McGregar, 88 Cal. 140. 84 People v. Ferris, 56 Cal. 442; People v. Bourke, 66 Cal. 457; People v. Ludwig, 118 Cal. 329. ss People v. Clark, 106 Cal. 32. ss People v. Lockwood, 6 Cal. 205; Penal Code 1127. 87 People v. Samsels, 66 Cal. 100. ss People v. Sears, 18 Cal. 635; People v. Garcia, 25 Cal. 531; People v. Shuler, 28 Cal. 490; People v. Chares, 26 Cal. 78; People v. Bonney, 49 Cal. 426. so People v. Williams, 17 Cal. 143; People v. Hurley, 8 Cal. 390; People v. Ramirez, 13 Cal. 173. 90 People v. Hobson, 17 Cal. 424; People v. Ramirez, 56 Cal. 538. CfWMES--27 418 CRIMINAL LAW AND PROCEDURE. or joint operation of act and intent, or criminal negligence. 1 The intent or intention is manifested by the circumstances connected with the offense and the sound mind and discre- tion of the accused. All persons are of sound mind who are neither idiots nor lunatics nor affected with insanity. 2 The word wilfully, when applied to the intent with which an act is done or omitted, implies simply a purpose or wil- lingness to commit the act or make the omission referred to. It does not require any intent to violate law or to injure another or to acquire any advantage. 3 The words " malice " and " maliciously " import a wish to vex, annoy or injure another person, or an intent to do a wrongful act, established either by proof; or by presumption of law. 4 The jury are not bound to decide in conformity with the declarations of any number of witnesses which do not pro- duce conviction in their minds against a less number or against a presumption or other evidence satisfying their minds. 5 A witness false in one part of his testimony is to be dis- trusted in others; that is to say, the jury may reject the whole of the testimony of a witness who has wilfully sworn falsely as to a material point; and the jury being convinced that a witness has stated what was untrue, not as the result of mistake or inadvertence, but wilfully and with the design to deceive, must treat all of his testimony with distrust and suspicion, and reject all unless they shall be convinced, not- withstanding thq base character of the witness, that he has in other particulars sworn to the truth. 6 If weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust. 7 1 Penal Code 20. 2 Penal Code 21. 3 Penal Code 7, sub. 1. * Penal Code, sec. 7, sub. 4. 5 Code of Civil Procedure 2061, sub. 2. Code of Civil Procedure 2061, sub. 3; People v. Sprague, 53 Cal. 494; People v. Hicks, 53 Cal. 354. 7 Code of Civil Procedure, 2061, sub. 7. APPROVED INSTRUCTIONS. 419 APPROVED INSTRUCTIONS. ACTS INTENT CONSEQUENCES. The court further instructs the jury, that every person is presumed to intend the reasonable and natural consequences of his own voluntary acts. WITNESS HOW IMPEACHED AND EFFECT OF IMPEACH- MENT. A witness is presumed to speak the truth. This pre- sumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty or integrity, or his motives, or by contradictory evidence, and the jury are the exclusive judges of his credibility. 1 A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth, honesty or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony. 2 As you have already been instructed, every competent witness is presumed to speak the truth. Whether the pre- sumption is removed by evidence is a matter of which the jury are the exclusive judges. Although a witness may be impeached in the manner already stated, yet, it remains for the jury to determine whether a particular witness has told the truth in the case, notwithstanding that the fact may be established that his general reputation for truth, honesty and integrity is bad, or that his motives are not good, or that his testimony may have been met by contradictory evi- dence, and the jury may believe a witness, notwithstanding proof of his conviction of a felony. A former conviction does not necessarily and as a matter of law, deprive a par- ticular witness of any portion of the credit presumptively due to the testimony of witnesses. 3 1 Code of Civil Procedure, sec. 1847. 2 Code of Civil Procedure, sec. 2051. s People v. McLane, 60 Cal. 412. 420 CRIMINAL LAW AND PROCEDURE WITNESSES ALL MAY NOT BE CALLED. The court instructs the jury that the prosecution is not required to call as its own witnesses all persons who were shown to be present. 4 WITNESS CREDIBILITY, HOW DETERMINED. The jury are instructed that to the jury exclusively belongs the duty of weighing the evidence, and determining the credibility of the witnesses. In determining the credi- bility of a witness the jury may take into consideration his character and conduct, his manner upon the stand, his rela- tion to the controversy and to the parties, if any, his hopes or his fears, his bias or impartiality, the reasonableness or unreasonableness of the statements he makes, the strength or weakness of his recollection, viewed in the light of all the other testimony, and facts and circumstances in proof in the case. ACCOMPLICE HOW CORROBORATED. The court instructs the jury that a conviction cannot be had on the testimony of an accomplice, unless he is cor- roborated! by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense. I charge you that such corroborative evidence is not sufficient if it merely shows the commission of the offense or the circum- stances thereof. It must connect the defendant with the commission of the crime charged. 5 CONSPIRACY COMMON OBJECT. The court instructs the jury that if you believe from the evidence that the defendants named in the information, or any two of them, pursued by their acts the same object, whether by the same means or by different means, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that 4 People v. Bush, 71 Cal. 607; People v. Robertson, 67 Cal. 651. B People v. Compton, 123 Cal. 403. APPROVED INSTRUCTIONS. 421 such defendants so pursuing the same object were engaged in a conspiracy to effect that object. 6 FLIGHT EVIDENCE OF. The flight of a person immediately after the commis- sion of a crime, or after a crime has been committed with which he is charged, is a circumstance to be weighed by the jury as tending in some degree to prove a conscious- ness of guilt, and is entitled to more or less weight, accord- ing to the circumstances of the particular case. Evidence of flight is received, not as a part of the res gestae of the criminal act itself, but as indicative of a guilty mind; and if you believe from the evidence in this case that the defendant , it is a circumstance to be weighed by you as tending in some degree to prove a consciousness of guilt. It is not sufficient of itself to establish the guilt of the defendant, but the weight to which that circum- stance is entitled is a matter for you to determine in con- nection with all the other facts and circumstances called out in this case. 7 AS EVIDENCE OF GUILT. If a person, when arrested on a criminal charge, and after being informed of the cause of his arrest, escapes, or attempts to escape, it is a 1 circumstance which the jury may consider in determining his guilt or innocence. 8 ESCAPE. The court instructs the jury, that if you believe from the evidence, beyond a reasonable doubt, that the defendant was arrested for the crime charged in the information, and that after being informed of the cause of his arrest, escaped or attempted to escape from the person having him under arrest, it is a circumstance that the jury may con- sider in determining his guilt or innocence. 9 6 People v. Bently, 75 Cal. 409. ? People v. Bushton, 80 Cal. 163. s People v. Strong, 46 Cal. 302. People v. Strong, 46 Cal. 303. 422 CRIMINAL LAW AND PROCEDURE. THE DOCTRINE OF REASONABLE DOUBT. A defendant in a criminal action is presumed to be inno- cent until the contrary is proved. And in case of a. rea- sonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. 10 REASONABLE DOUBT. Reasonable doubt is not mere possible doubt, because everything relating to human affairs and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence leaves the minds of jurors in; that condition that they cannot say they feel an abiding conviction fo a moral certainty of the truth of the charge. The burden of proof is upon the prose- cutor. All the presumptions of law, independent of evi- dence, are in favor of innocence, and every person is pre- sumed to be innocent until he is proven guilty. If, upon such proof, there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary ; but the evi- dence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. 11 But while the defendant cannot be convicted unless his guilt is established beyond a reasonable doubt, still the law does not require demonstration ; that is, such, a degree of proof as, excluding possibility of error, produces abso- lute certainty, because such proof is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. 12 10 Penal Code, sec. 1096. 11 Commonwealth v. Webster, 5 Gushing 320. 12 Code of Civil Procedure, sec. 1826; Penal Code 1108. APPROVED INSTRUCTIONS. 423 VOLUNTARY INTOXICATION NO EXCUSE FOR CRIME. No act committed by a person while in a state of volun- tary intoxication is less criminal by reason of his having been in such condition. But whenever the actual exist- ence of any particular purpose, motive or intent is a neces- sary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act. 1 It is a well settled' rule that drunkenness is no excuse for the commission of crime. Insanity produced by intoxi- cation does not destroy responsibility when the party, when sane and responsible, made himself voluntarily intoxicated ; and drunkenness forms no defense whatever to the fact of guilt, for when a crime is committed by a party while in a fit of intoxication, the law will not allow him to avail him- self of his own gross vice and misconduct to shelter him- self from the legal consequences of such crime. Evidence of drunkenness in murder cases can only be considered by the jury for the purpose of determining the degree of crime, and for that purpose it must be received with great cau- tion. 2 In murder in the first degree it is necessary to prove the killing was premeditated, which involves, of course, an inquiry into the state of mind under which the party com- mitted it, and in the prosecution of such inquiry, his con- dition as drunk or sober is proper to be considered. The weight to be given to it is a matter for the jury to deter- mine, and it is sufficient for the court to say to the jury that it should be received with caution, and carefully exam- ined in connection with all the circumstances and evidence in the case. s i Penal Code 22. i People v. Lewis, 36 Cal. 531; People v. Nir.hol, 34 CaL 212; People v. King, 27 Cal. 507; People v. Ferris, 55 Cal. 592; People v. Jones, 63 Cal. 168. " People v. Williams, 43 Cal. 346. 424 CRIMINAL LAW AND PROCEDURE. INSANITY AS A DEFENSE. In prosecutions for crimes the defense of insanity is often interposed, and thereby becomes a subject of para- mount importance in criminal jurisprudence. A due regard for the ends of justice and the peace and welfare of society, no less than mercy to the accused, require that it should be thoroughly and carefully weighed. It is a plea some- times resorted to in cases where aggravated crimes have been committed under circumstances which afford full proof of the overt acts, and render hopeless all other means of evading punishment. While, therefore, it ought to be viewed as a not less full and complete, than it is a humane defense, when satisfactorily established, yet it should be examined into with great care, less an ingenious counterfeit of the malady furnish protection to guilt. Insanity, as the expression is here used, means such a diseased and deranged condition of the mental faculties as to render the person incapable of distinguishing between right and wrong in relation to the act with which he is charged. An irresistible impulse to commit an act which a party knows to be wrong and unlawful (if it ever exists) does not constitute the insanity which is a legal defense. The standard of accountability is this : Had the party sufficient mental capacity to appreciate the character and quality of the act? Did he know and understand that it was a violation of the rights of another, and in itself wrong? Did he know that it was prohibited by the laws of the land, and that its commission would entail punishment and penal- ties upon himself? If he had the capacity thus to appre- ciate the character and comprehend, the possible or probable consequences of his act, he is responsible to the law for the act thus committed, and is to be judged accordingly. Although it is true, as you have been instructed, that generally the burden of proof is upon the prosecution, yet, to this rule there is this exception : Where insanity is relied upon as a defense, the burden of proving the existence of such insanity is on defendant, and it is incumbent upon him APPROVED INSTRUCTIONS. 425 to establish, by preponderance 1 of evidence, that he was insane at the time of committing the act charged, and the evidence of mental derangement must be such, in amount, that if the single issue of sanity or insanity of the defend- ant should be submitted to the jury in a civil case they must find that he is insane. Insanity must be established by a preponderance of the evidence. Therefore, if you believe that the preponderance of evidence is in favor of the sanity of the defendant, or that there is not a pre- ponderance of evidence to the effect that he was insane at the time of the transaction involved herein, you will act upon the hypothesis that he was sane at that time, even though you may have reasonable doubts upon the subject. And in considering the evidence relative to the defense of insanity, it will be proper for you to remember that ordinary experience teaches us that the majority of men are sane, and hence it is to be presumed, until; the contrary Is proven by a preponderance of evidence, that the defendant was sane at the time of the commission of the act with which he stands charged, if you find he committed such act. 4 DEFINITIONS MURDER OF THE FIRST AND SECOND DE- GREES, AND MANSLAUGHTER, HOW DISTINGUISHED. Murder is the unlawful killing of a human being with malice aforethought. 1 Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. 2 All murder which is perpetrated by means of poison or lying in wait, torture, or by any other kind of wilful, * People v. Dennis, 39 Cal. 637; People v. Bumberger, 45 Cal. 650; People v. Messersmith, 61 Cal. 246; People v. Pico, 62 Cal. 54; People v. Hoin, 62 Cal. 120; People v. Hamilton, 62 Cal. 384; People v. Hurtado, 63 Cal. 288. 1 Penal Code 187. 2 Penal Code 188. 426 CRIMINAL LAW AND PROCEDURE. deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary or mayhem, is murder of the first degree, and all other kinds of murders are of the second degree. 3 Manslaughter is the unlawful killing of a human being without malice. It is of two kinds : i. Voluntary upon a sudden quarrel or heat of passion. 2.. Involuntary in the commission of an unlawful act not amounting to felony, or in the commission of a law- ful act which might produce death, in an unlawful man- ner, or without due caution and circumspection. 4 In dividing murder into degrees the legislature intended to assign to the first as deserving of greater punishment, all murders of a cruel and aggravated character, and to the second; all other kinds of murder which are murder at com- mon law, and to establish a test by which the degree of every case of murder may be readily ascertained. That test may be thus stated : Is; the killing wilful (that is to say intentional), deliberate and premeditated? If it is, the case falls within the first, and if not. within the second degree. There are certain kinds of murder which carry with them conclusive evidence of premeditation : these the legislature has enumerated in the code definition already given you, and has taken upon itself the responsibilty of saying that they shall be deemed and held to be murder of the first degree. These cases are of two classes : First. Where the killing is perpetrated by mean? of poison, etc. Here the means used is held to be conclusive evidence of premeditation. Second. Where the killing is done in the perpetration, or attempt to perpetrate, some one of the felonies enum- erated in the statute, here the occasion is made conclusive evidence of premeditation. Where the case comes within either of these classes the test question, "Is the killing wil- ful, deliberate and premeditated?" is answered by the stat- ute itself, and the jury have no option but to find the pris- oner guilty in the first degree. Hence, so far as these 3 Penal Code 189. ^ * Penal Code 192. APPROVED INSTRUCTIONS. 427 two cases are concerned, all difficulty as to the question of degree are removed by the statute. But there is another and much larger class of cases included in the definition of murder in the first degree, which are of equal cruelty and aggravation with those enumerated, and which, owing to the different and countless forms; which murder assumes, it is impossible to describe in the statute. In this class the legislature leaves the jury to determine, from all the evi- dence before them, the degree of the crime, but prescribes for the government of their deliberations the same test which has been used by itself in determining the- degree of the other two classes, to wit, the deliberate and precon- ceived intent to kill. It is only in the latter class 'of cases that any difficulty is experienced in drawing the distinc- tion between murder of the first and murder of the second degree, and this difficulty is more apparent than real. The unlawful killing must be accompanied with a deliberate and clear intent to take life in order to constitute murder of the first degree. The intent to kill must be the result of deliberate premeditation. It must be formed upon a pre- existing reflection and not upon a sudden heat of passion sufficient to preclude the idea of deliberation. There need be, however, no appreciable space of time between the intention to kill and the act of killing they may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be pre- ceded by a concurrence of will, deliberation and premedi- tation on the part of the slayer, and if such is the case, the killing is murder in the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing. 5 A man may do a thing wilfully, deliberately and inten- tionally from a moment's reflection as well as after pondering over the subject for a month or year. He can premeditate, that is, think before doing the act, the moment he conceives the purpose, as well as if the act were the result of long preconcert or preparation. There is noth- ing in the sections of the Penal Code which relate to this s People v. Nichol, 34 Cal. 213-5. 428 CRIMINAL LAW AND PROCEDURE. subject, which indicate that the legislature meant to assign any particular period to this process of deliberation or pre- meditation, in order to bring the act within the first degree. If the unlawful killing is done without the provocation and sudden passion which reduces the offense to man- slaughter, or is done in the commission of an unlawful act, the natural consequences of which are dangerous to life, or is committed in the attempt to perpetrate a felony other than those mentioned in the description of murder in the first degree, or the circumstances of the killing show an abandoned heart, this is murder of the second degree, unless the evidence proves the evistence in the mind of the slayer 'of the specific intent to take life. If such specific intent exists at the time of such unlawful killing, the offense committed would of course be murder of the first degree. 7 Manslaughter, as you have already been instructed, is the unlawful killing of a human being without malice. The words "malice" and ''maliciously" import a wish to vex , annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law. 8 Manslaughter is principally distinguishable from murder in this : That though the act which occasions the death be unlawful or likely to be attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting, and the act being imputed to the infirmity of human nature, the cor- rection ordained for it is proportionately lenient. 9 And when the mortal blow, though unlawful, is struck in the heat of passion, excited by a quarrel, sudden and of sufficient violence to amount to adequate provocation, the law, out of forbearance for the weakness of human nature, will disregard the actual intent, and will reduce the offense to manslaughter. In such case, although the intent to e People v. Bealoba, 17 Cal. 395. 7 People v. Doyell, 48 Cal. 96; Ex parte Wolf, 57 Cal. 94. s Penal Code 7, sub. 4. Com. v. Webster, 5 Cush. 307. APPROVED INSTRUCTIONS. 429 kill exists, it is not that deliberate and malicious intent which is an essential element in the crime of murder. 10 But if the intent exists and the killing is unlawful, it will be murder, even though done upon a sudden quarrel or heat of passion, unless there was adequate provocation. In considering what is regarded as such adequate provo- cation, it is a settled rule in law that neither provocation by words only, however opprobrious, nor contemptuous, or insulting actions, or gestures, without an assault upon the person, nor any trespass against lands or goods, are of themselves sufficient to reduce the offense of an inten- tional homicide with a deadly weapon from murder to man- slaughter. 11 If the accused was engaged in the performance of an unlawful act, and if the deceased attempted in a lawful manner to prevent the performance of such unlawful act, and if, while so endeavoring to prevent the same, the defend- ant in anger, and solely for the purpose of revenge, or to enable him to carry out his unlawful design, so interfered with by said deceased, attacked the latter with a deadly weapon, intending to kill said deceased, and did, under such circumstances, carry such intention into execution, the fact that defendant was in a passion would not miti- gate or excuse such homicide, but the crime committed would in such case be murder in the first degree. It is not less murder because the act is done suddenly after the intent to commit the homicide is formed. It is suffi- cient that the malicious intention precedes and accom- panies the act of homicide. In determining the intention of the defendant at the time of the transaction complained of, it is important to con- sider the means used to accomplish the killing. The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the 10 People v. Freel, 48 Cal. 437. 11 Com. v. Webster, 5 Gush. 305, 307; Beople v. Turley, 50 Cal. 471; People v. Murback, 64 Cal. 369; People v. Tamkin, 62 Cal. 468. 430 CRIMINAL LAW AND PROCEDURE. accused. All persons are of sound mind who are neither idiots, nor lunatics, nor affected with insanity. 12 A person must be presumed to intend to do that which he voluntarily and wilfully does in fact do, and must also be presumed to intend all the natural, probable and usual consequences of his own acts. Therefore, when one per- son assails another violently with a dangerous weapon, likely to kill, and which does in fact destroy the life of the party assailed, the natural presumption is that such assail- ant intended death, or other great bodily harm, and in the absence of evidence to the contrary this presumption must prevail. The wilful use of a deadly weapon without excuse or provocation, in such a manner as to imperil life, generally indicates a felonious intent. 13 Upon a trial for murder, the commission of the homi- cide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justi- fiable or excusable. 14 But the defendant is only bound under this rule to pro- duce such evidence as will create in the minds of the jury a reasonable doubt of his guilt of the offense charged. It can make no difference whether such reasonable doubt is the result of evidence on the part of the defendant tend- ing to show circumstances of mitigation, or that justify or excuse the killing, or from other evidence coming from him or the prosecution. 15 THE RIGHT OF SELF-DEFENSE. Homicide is justifiable when committed by any person in either of the following cases : 12 Penal Code 21. " 2 Bishop C. Law. sees. 680, 681; Com. v. Webster, 5 Gush. 305; People v. Munn, 2 W. C. R. 748. i-t Penal Code 1105. 15 People v. Bushton, 80 Cal. 160. APPROVED INSTRUCTIONS. 431 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person ; or, 2. When committed in defense of habitation, property or person against one who manifestly intends, or endeavors, by violence or surprise, to commit a felony; or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein ; or, 3. When committed in the lawful defense of such rer- son, or of a wife or husband, parent, child, master, mis- tress or servant of such person, when there is reasonable ground to apprehend a design to commit a felony, or to do some great bodily injury, and imminent danger of such design being accomplished ; but such person, or the person in whose behalf the defense was made, if he was the assail ant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed ; or, 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in law- fully keeping and preserving the peace. 1 A bare fear of the commission of any of the offenses mentioned in subdivisions two and three of the preceding section, to prevent which homicide may be lawfully com- mitted, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable per- son, and the party killing must have acted under the influ- ence of such fears alone. 2 The court instructs the jury that the acts which a defend- ant may do and justify under a plea of self-defense depend primarily upon his own conduct, and secondarily upon the conduct of the deceased. There is no fixed rule applicable to every case, though certain general principles, well estab- 1 Penal Code 197. 2 Penal Code 198. 432 CRIMINAL LAW AND PROCEDURE. lished, stand forth as guides for the action of men and measures for the jury's determination of their deportment. You are instructed that self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance or fault, to create a real or apparent necessity for killing. 8 You are further instructed that self-defense is not avail- able as a plea to one who, by prearranged duel, or by consent has entered into a deadly mutual combat in which he slays his adversary. A man may not wickedly or wil- fully invite or create the appearances of necessity or the actual necessity which, if present to one without blame, would justify the homicide. 4 The court instructs the jurv that where one without fault is placed under circumstances sufficient to excite the fears of a reasonable person that another designs to commit a felony or some great bodily injury upon him, and to afford grounds for reasonable belief that there is imminent danger of the accomplishment of this design, he may, act- ing under these fears alone, slay his assailant and be justi- fied by the appearances. And, as where the attack is sud- den and the danger imminent, he may increase his peril by retreat, so situated he may stand his ground, that becom- ing his wall, and slay his aggressor, even if it be proved that he might more easily have gained his safety by flight. 5 So, too, under such circumstances, he may pursue and slay his adversary. But the pursuit must not be in revenge, nor after the necessity for self-defense has ceased, but must be prosecuted in good faith to the sole end of winning his safety and securing his life. 8 3 People v. Hecker, 109 Cal. 462; People v. Robertson, 67 Cal. 646; Stewart v. State, 1 Ohio St. 66. * People v. Hecker, 109 Cal. 462; State v. Partlow, 90 Mo. 608; State v. Underwood, 37 Mo. 225; 1 Bishop Crim. Law, sec. 870; Gilleland v. State, 44 Texas 356; Clifford v. State, 58 Wis. 478; Tate v. State, 46 Ga. 151. 5 People v. Hecker, 109 Cal. 463; People v. Herbert, 61 Cal. 544; People v. Gonzales, 71 Cal. 569; People v. Ye Park, 62 Cal. 204; People v. Robertson 67 Cal. 646; Runyon v. State, 57 Ind. 84; Erwin v. State, 29 Ohio St. 186. e People v. Hecker, 109 Cal. 463. APPROVED INSTRUCTIONS. 433 The court instructs the jury that the mere apprehension of danger is insufficient to justify a homicide. The fear must have been produced by circumstances such as would be sufficient to excite the fears of a reasonable person. The law of self-defense is founded on necessity, and in order to justify the taking of life upon this ground It must not only appear that the defendant had reason to believe, and did believe, that he was in danger of his life, or of receiv- ing great bodily harm, but it must also appear to the defendant's comprehension, as a reasonable man, that to avoid such danger it was absolutely necessary for him to take the life of the deceased. 7 ASSAULT. ASSAULT TO MURDER. The court instructs the jury, 1 that if you believe from the evidence beyond a reasonable doubt, that the defendant committed an assault upon the person of the witness - with a deadly weapon, as charged in the informa- tion, with intent to kill and murder the said , then you should find the defendant guilty as charged. WHEN ASSAULT WITH A DEADLY WEAPON. The court further instructs the jury that if you believe from the evidence beyond a reasonable doubt, that the defendant committed an assault upon the person of the wit- ness with a deadly weapon, as charged in the information, but not with an intent to kill and murder the said , then you should find the defendant guilty of assault with a deadly weapon. DEADLY WEAPON WITHOUT SPECIFIC INTENT. The court further instructs the jury, that if you believe from the evidence, that the defendant committed an assault upon the person of the witness - with a deadly weapon, as charged in the information, but without any specific intent to kill and murder the said , then 7 People v. Morine, 61 Cal. 367; People v. Scroggins, 37 Cal. 675. CRIMES--28 434 CRIMINAL LAW AND PROCEDURE. voii should find the defendant guilty of assault with a deadly weapon. DEADLY WEAPON WHEN SIMPLE ASSAULT. The court instructs the jury, that if you believe from the evidence beyond a reasonable doubt, that the defendant committed an assault upon the person of the witness , as charged in the information, but do not find from the evidence that such assault was made with a deadly weapon or with intent to kill and murder the said , then you should find the defendant guilty of assault. ASSAULT SIMPLE. The court further instructs the jury that an assault is an unlawful attempt, coupled with the present ability, to commit a violent injury upon the person of another. DEADLY WEAPON WORDS, ETC., WILL NOT JUSTIFY. The court further instructs the jury that no words of insult or reproach, however grievous or opprobrious, will justify an assault with a deadly weapon. 1 DEADLY WEAPON, WHAT IS. A deadly weapon is any weapon or instrument, which from the manner it may appear in evidence to have been used was likely to produce death or great bodily injury. MALICE AND MALICIOUSLY. The court further instructs the jury that the words "mal- ice" and "maliciously" import a wish to vex, annoy or injure another person, or an intent to do a wrongful act, estab- lished either by proof or by presumption of law. PERJURY DE FACTO OFFICER ADMINISTERING OATH. The court further instructs the jury that while it is necessary for the prosecution, in order to secure a convic- i People v. lams, 57 Cal. 120. APPROVED INSTRUCTIONS. 435 tion for perjury, to show that the person administering the oath was authorized by law to administer oaths, still, if it be shown by the evidence beyond a reasonable doubt, that the oath was administered by a person who was then and there an acting - - in the county of , state of California, where the oath was administered, this is sufficient evidence of his authority to administer an oath. PERJURY PROOF OF PART OF ALLEGED FALSE STATE- MENTS. The Court further instructs the jury that it is not neces- "sary to prove or establish all of the matters alleged and set up in the information as constituting the charge of perjury against the defendant herein. It is sufficient it" you believe from the evidence beyond a reasonable doubt, that the prosecution has proven that any of the matters charged in the information were so sworn to or testified to by the defendant on the occasion , as charged in the information, and that the same is proven by the prose- cution, beyond a reasonable doubt, to have been false and untrue at the time the same was so sworn to, or testified to, to the then knowledge of the defendant, as charged in the information, and that the same was material. MATERIALITY. The court further instructs the jury that it is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by h"ii : or that it did not in fact, affect the proceeding in or frr which it was made. It is sufficient that it was material, and might have been used to affect such proceeding. 1 An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false. But it must be shown that such unqualified statement was made wilfully, that is, with a consciousness that it was not known to be true and with the intent that it should be received as a statement of what was in fact true. 2 1 Penal Code 123. 2 People v. Von Tiedeman, 130 Cal. 128. 436 CRIMINAL LAW AND PROCEDURE. RAPE DEFINITION. The court instructs the jury that rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, where she resists, but her resistance is over- come by force or violence, or where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution. PENETRATION EMISSION. The court instructs the jury that proof of any penetra- tion, however slight, is sufficient in a case of rape, and proof of emission is not necessary. EMBRACES "ASSAULT WITH INTENT TO COMMIT RAPE;" ALSO "ASSAULT." Embraced within the offense charged in the indictment are two other offenses, viz. : "Assault with intent to commit rape," and "assault," sometimes called simple assault. An assault is an unlawful attempt, coupled with a present abil- ity, to commit a violent injury on the person of another. UNDER AGE OF CONSENT. FACTS NECESSARY TO A VE*RDICT OF GUILTY. The court instructs you that in order to convict the defend- ant as charged in the information, it is necessary that the evidence prove to your satisfaction, beyond a reasonable doubt : 1. That the defendant, on or about the day of , 190 , at and within the county of - , state of Cali- fornia, did wilfully, unlawfully and feloniously have sex- ual intercourse with - , the female child mentioned in the information. 2. That at the time of the alleged commission of the act of sexual intercourse the said was under the age of sixteen years. 3. That the said was not the wife of the defend- ant. APPROVED INSTRUCTIONS. 4J< These are the material and essential elements embraced in the offense charged in the information; and if you are satisfied from the evidence in this case of the truth of the charge, and that all and each of said elements are proven beyond a reasonable 'doubt, then it will be your duty to find the -defendant guilty as charged. FORCE UNNECESSARY UNDER AGE OF CONSENT. The court instructs you that it is the law of the state of California that any female under the age of sixteen years shall be incapable of consenting to an act of sexual intercourse, and that any one committing an act of sexual intercourse with a female under such age, and not his wife, shall be guilty of the crime of rape, notwithstanding he obtained her consent. Therefore, whether such child con- sents or resists, is wholly immaterial. CORROBORATION OF PROSECUTRIX EXTENT OF. The court further instructs the jury that it is not essen- tial to a conviction in this case, that the prosecutrix should be corroborated by the testimony of other witnesses as to the particular acts constituting the offense. It is sufficient if you believe from her evidence and all the other testimony and circumstances in proof in the case, beyond a reasonable doubt, that the crime charged has been com- mitted. 1 EVIDENCE OF PROSECUTRIX SCANNED. The court further instructs the jury that while it is the law that the testimony of the prosecutrix should be carefully scanned, still this does not mean that such evidence is never sufficient to convict. If you believe the prosecutrix, and are satisfied from all of the evidence in the case, beyond a reasonable doubt, of the defendant's guilt, then you should so find. FORM OF VERDICT. It is competent for you under this information to find either one of four verdicts : Rape, as charged in the infor- mation ; assault, with intent to commit rape ; assault, and not guilty, as you may be convinced from the evidence in the case. i People v. Mayes, 66 Cal. 598. 438 CRIMINAL LAW AND PROCEDURE. GAMING WHAT IS PERCENTAGE GAME. The court instructs the jury that a percentage game within the meaning* of the law, is a game conducted or car- ried on by one or more persons at which others play with cards, dice or any device for money, checks, credit, or any other representative of value, and where a portion or part of the .amount bet or put up as the stake by those who play at the game is taken or received by the person or persons who conduct or carry on the game, as his or their portion of the money so lost or won. CHAPTER LX:i. RECEIVINGS THE VERI3ICT. The jury having agreed upon their verdict, they must be conducted into the court by the officer having them in charge. Their names must then be called, and if all do not appear, the jury must be discharged without giving a verdict. 1 When the jury appear they must be asked by the court, or the clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. 2 When the verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any of them answers in the negative, the jury must be sent out for further deliberations. 3 A failure to poll the jury does no prejudice to the defendant, if all the jury were present and agreed thereto. 4 The defendant may waive the recording of the verdict in the presence of the jury. 5 When the verdict given is such as the court may receive, the clerk must immediately record it in full upon the minutes, read it to the jury, and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case. 6 1 Penal Code 1147. 2 Penal Code 1149. i Penal Code 1163; People v. Nichols, 62 Cal. 518. * People v. Rodundo, 44 Cal. 541; People v. Nichols, 62 Cal. 520. s People v. Smalling, 94 Cal. 112. e Penal Code 1164. 440 CRIMINAL LAW AND PROCEDURE. KINDS OF VERDICTS. The jury may render a general verdict, or, when they are in doubt as to the legal effect of the facts proved, they may, except upon a trial for libel, find a special verdict. 7 GENERAL VERDICT. A general verdict upon a plea of not guilty is either "guilty" or "not guilty," which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either "for the people" or "for the defendant." When the defendant is acquitted on the ground that he was insane at the time of the commission of the act charged, the ver- dict must be "not guilty by reason of insanity." When the defendant is acquitted on the ground of variance between the indictment and the proof, the verdict must be "not guilty by reason of variance between indictment and proof." 8 A general verdict of guilty will not sustain a conviction when one or more of the counts of the indictment do not state an offense, 9 and when there are two defenses pleaded by the defendant there must be a verdict on both before a conviction can be sustained. 10 The jury need not find on the plea of prior conviction where the defendant con- fesses it, 11 but where the plea is one of not guilty, the jury must find on the prior conviction. 12 Where the prior con- 7 Penal Code 1150. Penal Code 1151. 9 People v. Eppinger, 109 Cal. 294; People v. Garnett, 129 Cal. 364; People v. Mitchell, 92 Cal. 590; People v Smith, 103 Cal. 567. 10 People v. Helbing, 59 Cal. 567; People v. Fuqua, 61 Cal. 377; People v. Tucker, 115 Cal. 338; People v. Lewis, 64 Cal. 403; People v. Brooks, 65 Cal. 296; People v. Neason, 67 Cal. 225; Ex parte Young Ah Gow, 73 Cal. 443; People v. Wheatley, 88 Cal. 118; People v. King, 64 Cal. 338; Penal Code 1158. 11 People v. Brooks, 65 Cal. 295; Ex parte Young Ah Gow, 73 Cal. 442; People v. Meyer, 73 Cal. 549; People v. Wheatley, 88 Cal. 117. 12 People v. Eppinger, 109 Cal. 294; People v. Helbing, 59 Cal. 567; People v. Fuqua, 61 Cal. 377; People v. Tucker, 115 Cal. 338; People v. Kinsey, 51 Cal. 278; Penal Code 1158. RECEIVING THE VKRDICT. 441 viction is confessed and the verdict of the jury is guilty as to the crime charged, the defendant may be sentenced as for a prior conviction. 13 SPECIAL VERDICT. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact as established by the evidence, and not the evidence to prove them, and these conclusions of fact must be so presented as that nothing remains to the court but to draw conclusions of law upon them. 14 The special verdict must be reduced to writing by the jury, or in their presence entered upon the minutes of the court, read to the jury, and agreed to by them, before they are discharged. 15 The special verdict need not be in any par- ticular form, but is sufficient if it presents intelligibly the facts found by the jury. 16 CONTENTS OF VERDICT. Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty. 17 Thus a general verdict with- out stating the degree is a nullity in burglary 18 and in mur- der, 19 but a verdict of "guilty as charged" is sufficient as to degree, 20 and is a conviction of the crime charged in the indictment. 21 It must, by reference to the indictment, con- tain all the elements of the crime. 22 It must specify the 13 Ex parte Young Ah Gow, 73 Cal. 438; People v. Gutier- rez, 74 Cal. 83; People v. Fowler, 88 Cal. 140; Ex parte Williams, 89 Cal. 426. Penal Code 1152. 15 Penal Code 1153. is Penal Code 1154. if Penal Code 1157. is People v. Travers, 73 Cal. 580. 10 People v. Campbell, 40 Cal. 129; People v. Lee Yune Chong, 94 Cal. 386. 2 People v. Whitely, 64 Cal. 211; People v. Price, 67 Cal. 352 ;| People v. Manners, 70 Cal. 429; People v. Perez, 87 Cal. 123. 21 People v. Perez, 87 Cal. 122; People v. Manners, 70 Cal. 428; People v. Higuera, 122 Cal. 466. - 2 People v. Cummings, 117 Cal. 497. 442 CRIMINAL LAW AND PROCEDURE. offense charged or some one included therein ; 23 the con- viction of a lesser offense necessarily included in the greater is proper. 24 Thus, a charge of an assault with a deadly weapon will support a verdict of assault to do bodily harm, 25 and an information for an assault with a deadly weapon will sustain a conviction of a simple assault. 20 A verdict of an assault "to do bodily harm upon the person" is equiv- alent "to inflict upon the person of another a bodily injury." 27 I'lider a charge of assault with a deadly weapon with intent to inflict great bodily injury, a verdict of guilty of an assault with a deadly weapon is a conviction of a simple assault, 28 but not a verdict of guilty of an assault with a deadly weapon, with intent to do bodily injury.* If the jury is authorized to fix the punishment and cannot agree, they should find a general verdict." Where the jury states they find a verdict of a designated crime, it means they find the defendant guilty thereof, 31 and a verdict agreeing that the defendant is guilty is a finding of guilt."- The name used in the indictment may be used in the verdict although not the true name/' 3 and a misnomer is not mate- rial, it is enough that the jury find the defendant guilty without specifying his name therein. 34 But where two defendants are tried and the verdict finds the defendant * People v. Ah Gow, 53 Cal. 627; People v. West, 73 Cal. 346. z* People v. Gordon, 99 Cal. 227; People v. Lowen, 109 Cal. 381; People v. Muhlner, 115 Cal. 306. 25 People v. Congleton, 44 Cal. 92; People v. Murat, 45 Cal. 284; People v. Villarino, 66 Cal. 229; People v. Pape, 66 Cal. 367; People v. Savercool, 81 Cal. 651. 20 Ex parte Donahue, 65 Cal. 474; People v. Turner, 65 Cal. 542; People v. Gordon, 99 Cal. 229. 27 People v. Congleton, 44 Cal. 92. 28 People v. Wilson, 9 Cal. 260; People v. Holland, 59 Cal. 364; People v. Congleton, 44 Cal. 95. 2'. People v. English, 30 Cal. 215. ao People v. Littlefield, 5 Cal. 355; People v. Welch, 49 Cal. 180. si People v. Perdue, 49 Cal. 425; People v. Visher, 96 Cal. 314. '- People v. Buckley, 49 Cal. 241. ss People v. Ah Kim, 34 Cal. 189. " People v. Boggs. 20 Cal. 432; People v. Ah Kim, 34 Cal. 190; People v. Ferris, 56 Cal. 444; People v. Smith, 103 Cal. 568. RECEIVING THE VERDICT. 443 guilty, the verdict must be set aside, 85 and a conviction of one not named in the indictment is an acquittal to the one indicted, 36 but the identity of the accused is sufficiently estab- lished notwithstanding the omission of a middle initial. 37 A verdict of guilty imports a conviction of every material allegation of the indictment, 38 and is conclusive as to the tendency and effect of the evidence ; 39 but a conviction of a lesser offense included in the indictment must be specified in the verdict. 40 A recommendation to mercy is no part of the verdict. The jury has nothing to do with the punishment. Their province is to determine the guilt or innocence of the accused, and the court may wholly dis- regard such a recommendation. 41 AMENDING THE VERDICT. When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict, and if, after the reconsider- ation, they return the same verdict, it must be entered ; but when there is a verdict of acquittal, the court cannot require the jury to reconsider it. If the jury render a verdict which is neither general nor special, the court may direct them to reconsider it, and it cannot be recorded until it is rendered in some form from which it can be clearly under- stood that the intent of the jury is either to render a gen- eral verdict or to find the facts specially, and to leave the judgment to the court. 42 If the jury persist in finding an informal verdict, from which, however, it can be clearly 35 People v. Sepulveda, 59 Cal. 343; Willard v. Archer, 63 Cal. 34. se People v. Ah Ye, 31 Cal. 451; People v. Boggs, 20 Cal. 435. 3? People v. Hettick, 126 Cal. 425; People v. Rolfe, 61 Cal. 540. ss People v. March, 6 Cal. 541; Ex parte Brown, 68 Cal. 180; People v. West, 73 Cal. 346. so People v. Magallones, 15 Cal. 426. *o People v. March, 6 Cal. 541. 41 People v. Lee, 17 Cal. 76; People v. Wilson, 119 Cal. 384. 42 Penal Code 1161. 444 CRIMINAL LAW AND PROCEDURE. understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant upon the issue, or judgment is given against him on a special verdict. 43 Where the jury returns an informal verdict, it is the duty of the court to explain the defects, and direct the jury to put it in proper form. 44 The verdict may be amended before it is accepted or the jury is discharged, 46 but not afterwards. 40 Informalities may be cured by refer- ring to instructions which the jury expressly mentioned therein. 47 An informal verdict is sufficient if it can be understood as being a general verdict of guilty or not guilty. 48 43 Penal Code 1162. 44 People v. Dick, 34 Cal. 663; People v. Ah Gow, 53 Cal. 627; People v. Nichols, 62 Cal. 522. 45 People v. Lee Yune Chong, 94 Cal. 379; People v. Jen- kins, 56 Cal. 4. 46 People v. Bidleman, 104 Cal. 615. 47 People v. Holmes, 118 Cal. 444. 48 People v. McCarty,; 48 Cal. 557; People v. Perdue, 49 Cal. 427; People v. Douglass, 87 Cal. 283; Johnson v. Visher, 96 Cal. 314. CHAPTER LXII. SENTENCE: AND JUDGMENT, A conviction imports that the accused is guilty, either by verdict of a jury, a judgment against him upon a demurrer, upon a plea of guilty or upon a judgment of a court, a jury having heen waived in criminal cases not amounting to a fel- ony. 49 In pronouncing judgment the judge must prelim- inarily state to the defendant the nature of the charge of which he is convicted, 50 of his arraignment and his plea, of his trial and the verdict of the jury finding him guilty, 51 and be asked whether he has any legal cause to show why judgment should not be pronounced against him. 52 These requirements are mandatory and a substantial compliance therewith is essential, for they affect important rights of the defendant, who, when thus called upon, may show either that he is insane or that there are grounds for a new trial, or for arrest of judgment. 53 And the court may in miti- gation of punishment, in its discretion, receive evidence. 5 * JUDGMENT. The judgment is sufficient although it does not state the degree of the crime of which the defendant was convicted. 55 The recitals in the judgment need not be of a particular offense, but only of a general offense within which the par- *'> Penal Code 689 and 1011; Ex parte Brown, 68 Cal. 176. 50 People v. Murback, 64 Cal. 369; People v. Barton, 88 Cal. 178. si People v. Jung Qung Sing, 70 Cal. 469. 52 Penal Code 1200. 53 People v. Walker, 132 Cal. 141. 5-t People v. M'Kay, 122 Cal. 628. ss People v. McNulty, 93 Cal. 427. 446 CRIMINAL LAW AND PROCKDURE. ticular offense is included. 50 And a conviction of a lower degree is proper where it is included in the offense charged. BT But the judgment should show that all acts required by the statute to be done up to that stage have been done. 88 It is not void, however, if it appears therefrom that the court had jurisdiction and the defendant was convicted. 89 Where a sentence is illegal in part, it is not void so as to authorize a discharge on habeas corpus before the legal part of the judgment is satisfied. 60 The sentence may be amended before final judgment is entered, 61 and the court may vacate a void sentence for fraud practiced on the court. 62 But a judgment void in part is wholly void, 03 except where the valid part may, be enforced without refer- ence to the void part. 04 The order fixing the date of exe- cution must give the defendant a reasonable time to pre- pare a bill of exceptions thereon. 05 The judgment need not state the venue if it appears in the information, 66 nor the offense of which the defendant was convicted, if it shows that he was indicted and convicted of some offense and the court had jurisdiction to sentence, 67 except on a direct attack on appeal. 68 Fixing the date of the execu- tion in the judgment is not erroneous, but it is not the best practice. 09 A judgment is not void for uncertainty 56 Ex parte Murray, 43 Cal. 455. 57 People v. English, 30 Cal. 215; Ex parte Ah Cha, 40 Cal. 427; Ex parte Max, 44 Cal. 581; Ex parte Donahue, 65 Cal. 475; People v. Pape, 66 Cal. 367; People v. Gor- don, 99 Cal. 229. -8 Ex narte Gibson. 31 Cal. 620. 59 Ex parte Gibson, 31 Cal. 620; People v. Raye, 63 Cal. 492. co EX parte Mitchell, . j Cal. 1. fii People v. Thompson, 4 Cal. 239. 62 People v. Woods, 84 Cal. 441. 03 Ex parte Kelly, 65 Cal. 154. 6* Overend v. Superior Court, 131 Cal. 280. 65 People v. Durrant, 119 Cal. 201; People v. Ebanks, 120 Cal. 629. "6 People v. Johnson, 88 Cal. 171. 67 Ex parte Gibson, 31 Cal. 620; People v. Burgess, 35 Cal. 118. "* 68 People v. Johnson, 71 Cal. 384; People v. Eppinger, 109 Cal. 298; S. C., 114 Cal. 352; People v. Kelly, 120 Cal. 273. 60 People v. Murphy, 45 Cal. 137. SENTENCE AND JUDGMENT. 447 though the defendant be imprisoned for a specified number of years from the date of his incarceration. 70 The court in determining the degree of crime need not follow any particular form in the judgment. 71 A recital in the judg- ment that the defendant was found guilty of gaming at tan as charged, is equivalent to the; finding that the defend- ant was found guilty of gaming at tan by carrying on and conducting a game of tan. 72 When the judgment states the offense of which the defendant was convicted and the pen- alty imposed, it is sufficient. 73 It is sufficient in form if it recites the defendant be "punished by imprisonment in the state prison," etc. 74 Where the judgment shows that when the defendant appeared for judgment, he was informed by the court, or by the clerk under its direction, of the nature of the charge against him, and of his plea, and the verdict, if any thereon, and asked whether he had any legal cause to show why judgment should not be pronounced against him, it is sufficient. 75 The burden is on the defend- ant to show any legal cause why sentence of the court should not be pronounced. 76 The judgment may fix the date of the imprisonment to commence at the time of the delivery of the defendant to the warden. 77 A sentence below the minimum, 78 or above the maximum, is void, and the judgment will be reversed with directions to proceed to judgment on the verdict. 79 The day of the execution should be named in the warrant of death and not in the TO People v. King, 28 Cal. 266; People v. Hughes, 29 Cal. 262. ?! People v. Noll, 20 Cal. 165. 72 People v. Sam Lung, 70 Cal. 515. TS In matter of Ring, 28 Cal. 248; Ex parte Williams, 89 Cal. 421; People v. Trim, 37 Cal. 275; People v. Douglass, 87 Cal. 281; Ex parte Turner, 75 Cal. 228; Ex parte Young Ah Gow, 73 Cal. 442; Ex parte Raye, 63 Cal. 492; Ex parte Dobson, 31 Cal. 499. 74 People v. Wheatley, 88 Cal. 114. 75 People v. Perez, 87 Cal. 122. 76 People v. Durrant, 119 Cal. 201. 77 People v. Hughes, 29 Cal. 258; People v. Burgess, 35 Cal. 118. 78 EX parte Bernert, 62 Cal. 524. But this was doubted by the court in Ex parte Soto, 88 Cal. 626. 79 People v. Riley, 48 Cal. 549; Ex parte Bernert, 62 Cal. 531. 448 CRIMINAL LAW AND PROCEDURE. judgment. 80 The defendant may waive the time for sen- tence, and consent that it be given immediately, as he may waive any statutory right intended for his benefit ; and where the record does not disclose the contrary, it will be presumed that he did waive such right. 81 THE COMMITMENT. A certified copy of the judgment properly entered is a sufficient commitment, 82 and authority to detain the pris- oner. 83 It need not contain the words "committed to the sheriff," 84 but it should set forth the crime alleged against the prisoner with convenient certainty. It should state not only the offense charged, but such facts as are essential to constitute the offense. 85 PUNISHMENT. A fine and imprisonment until paid may be adjudged under a law imposing fine or imprisonment ; l or imprison- ment for non-payment of fine at so much per diem may be directed by the judgment. 2 But both fine and imprisonment cannot be imposed under a statute merely authorizing either, 3 and imprisonment for non-payment of fine cannot be imposed when sentence provides for other imprisonment as a punishment. 4 Imprisonment may be ordered to be so People v. Bonilla, 38 Cal. 699; People v. Murphy, 45 Cal. 141. HI People v. Robinson, 46 Cal. 94; People v. Johnson, 88 Cal. 174. sa in matter of Brown, 32 Cal. 49; Ex parte Dobson, 31 Cal. 498; Ex parte Gibson, 31 Cal. 622. ss in matter of Ring, 28 Cal. 248; Ex parte Ahern, 103 Cal. 414. s* Ex parte Moan, 65 Cal. 216. ss Ex parte Branigan, 19 Cal. 133. 1 Ex parte Chin Yan, 60 Cal. 78; Ex parte Lawrence, 60 Cal. 84; People v. Baldwin, 60 Cal. 435; People v. Miller, 82 Cal. 455. 2 Ex parte Ellis, 54 Cal. 204; Ex parte Chin Yan, 60 Cal. 80; Ex parte Harrison, 63 Cal. 300; Ex parte Henshaw, 73 Cal. 496; Ex parte Miller, 82 Cal. 455; People v. Bald- win, 60 Cal. 435. a Ex parte Gilmore, 71 Cal. 624. * People v. Hamberg, 84 Cal. 468; People v. Brown, 113 Cal. 36. SENTENCE AND JUDGMENT. 449 in a city jail. 5 Imprisonment for non-payment may be added when judgment is for fine only, but it must be limited to the maximum of the period for which imprison- ment might be imposed, directly as a means of punishment. 6 And it may be made at the rate of one day for each two dollars fine, 7 although the authorized mode is at the rate of a day for each dollar. 8 Where the fine and the imprison- ment to enforce payment are separately .entered in the judg- ment, the sentence of imprisonment as a punishment is valid, and may be enforced. The defendant may avoid imprisonment for non-payment of fine by payment of the fine or of the remainder thereof, after deducting the speci- fied per diem for the number of days served. 10 Where the crime is punishable by fine, the power to impose imprison- ment is dependent upon its non-payment. 11 Imprisonment at hard labor, when unauthorized, does not render the remainder of the sentence void. 12 Imprisonment for unpaid fine may be ordered in all cases where the statutes provide that the judgment may also direct that the convicted person be imorisoned until the fine be satisfied. 13 In punish- ment for a misdemeanor a fine cannot be enforced by labor as an alternative. 14 Imprisonment to enforce fine is void as to any excess over the maximum imprisonment allowed by the statute for the offense, 15 but is valid where the total imprisonment does not exceed the statutory limitation. 16 It cannot be imposed where the sentence clearly provides s Ex parte Halsted, 89 Cal. 471; In re Ambrosewf, 109 Csfi. 266. 6 Ex parte Casey, 85 Cal. 36; Ex parte Miller, 82 Cal. 454. i Ex parte Noble, 96 Cal. 362. s Ex parte Soto, 88 Cal. 624; In re Mulholland, 97 Cal. 529. a Ex parte Mitchell, 70 Cal. 1. 10 Ex parte Casey, 85 Cal. 36. 11 Ex parte Baldwin, 60 Cal. 432; Ex parte Miller, 82 Cal. 455; People v. Soto, 88 Cal. 631. 12 In re Pil Ki, 80 Cal. 201; Ex parte Halsted, 89 Cal. 473. 1 3 People v. Righetti, 66 Cal. 184; see also Ex parte Rosen- heim, 83 Cal. 381; Ex parte Neustadt, 82 Cal. 274. " Ex parte Kelly, 65 Cal. 154; Ex parte Arras, 78 Cal. 306; In re Fil Ki, 80 Cal. 203. IB Ex parte Erdmann, 88 Cal. 579; Ex parte Soto, 88 Cal. 628. 16 Ex parte Sing Ah Tong, 84 Cal. 165. CRIMES--29 450 CRIMINAL LAW AND PROCEDURE. for other imprisonment, 17 or in addition to other imprison- ment, 18 but it may be imposed to enforce the payment of *a fine at a fixed rate per day. 10 An unauthorized release, pending an appeal from such judgment, is a technical escape, and the time of absence cannot be computed as a part of the term. The expiration of the time, without any imprisonment, is in no sense an execution of the sentence. 20 The judgment, in such cases, may direct imprisonment at a certain rate per day which may be ended at any time, by the payment of the remainder of the fine. 21 Where a penalty is not fixed and prescribed by the code defining the offense, every offense declared to be a misde- meanor is punished by imprisonment in the county jail not exceeding six months or by fine not exceeding five hundred dollars, or by both. 22 A conviction of a misdemeanor can- not be punished bv imprisonment in the state prison. 23 Imprisonment in the state prison can be directed only in felony cases. 24 The legislature, however, has power to pro- vide different places of punishment for the same offense. 2 ''' A commitment to Whittier state school for burglary with- out a jury trial or notice to parents is void. 20 On a sen- tence for misdemeanor, the court may direct the payment of the fine ''forthwith." 27 Imprisonment in a house of cor- rection may be ordered on a conviction in the Superior Court in cases which might be either a misdemeanor or a 17 Ex parte Rosenheim, 83 Cal. 388; Ex parte Wadleigh, 82 Cal. 520; Ex parte Casey, 85 Cal. 37; People v. Neustadt, 82 Cal. 273. is People v. Brown, 113 Cal. 36. 19 People v. Markham, 7 Cal. 209. -" Ex parte Vance, 90 Cal. 208. 21 Ex parte Kelly, 28 Cal. 415; Ex parte Casey, 85 Cal. 38; Ex parte Ellis, 54 Cal. 206; Ex parte Baldwin, 60 Cal. 435; Ex parte Harrison, 63 Cal. 300. 22 people v. Tom Nop, 124 Cal. 150. 23 Ex parte Ah Cha, 40 Cal. 426. 24 Ex parte Arras, 78 Cal. 304; Ex parte Wadleigh, 82 Cal. 520; Ex parte Casey, 85 Cal. 37. 25 in re Ambrosewf, 109 Cal. 264. 26 Ex parte Becknell, 119 Cal. 496. -- EX parte Noble, 96 Cal. 362. SENTENCE AND JUDGMENT. 451 felony.- 8 Imprisonment in the state prison pending execu- tion of the sentence, is a part of the punishment for mur- der. 29 The court has no power to deport a prisoner as a part of the punishment, and such an order merely operates to suspend judgment. 30 If an execution of the judgment of death be not had on the day appointed, the court may appoint another day, 31 and the warden of the penitentiary has authority to execute the sentence. 32 Imprisonment for a fixed period is a proper punishment for an assault to rape. 33 A conviction of petit larceny as a second offense, 34 or of an attempt to commit larceny after a prior convic- tion thereof, is a felony, and may be punished by imprison- ment in the state prison. 35 CUMULATIVE SENTENCES. -Cumulative sentences are valid, 35a and sentences may be fixed to begin at a time to be determined by examination of the court's records. 36 Consecutive sentences may be imposed and the second need not be expressly designated as com- mencing at the termination of the first. 37 A trial and con- viction of murder may be had when the defendant is imprisoned for life for another conviction. 38 Where there are two convictions, both appealed from and both affirmed, the prisoner will not be entitled to his discharge from the second until the full time fixed therefor has expired after the affirmance of the first. 39 CREDITS FOR GOOD BEHAVIOR. Allowance for credits does not require the action of the 28 Ex parte Flood, 64 Cal. 251; Ex parte Moon Fook, 72 Cal. 10; In re Ambrosewf, 109 Cal. 267. 2 People v. Durrant, 119 Cal. 202; Ex parte Fredericks, 104 Cal. 400. so People v. Patrich, 118 Cal. 332. si People v. Bonillo, 38 Cal. 699. 32 People v. Ebanks, 120 Cal. 626. ss People v. Gardner, 98 Cal. 127. s* People v. Gutierrez, 74 Cal. 83. 35 People v. Brooks, 65 Cal. 295. ssaEx parte Morton, 132 Cal. 346. se People v. Forbes, 22 Cal. 136; Ex parte Raye, 63 Cal. 492. 37 Ex parte Kirby, 76 Cal. 514. ss People v. Majors, 65 Cal. 138. 39 Ex parte Green, 86 Cal. 426. 452 CRIMINAL LAW AND PROCEDURE. governor of the state. The warden may discharge the pris- oner, but the prison directors may forfeit credits for mis- conduct. 40 A deduction for good behavior must be taken from the entire period where the sentence is for two terms, and not from the end of the first term, as the entire period is but one term. 41 PUNISHMENT FOR PREVIOUS CONVICTION. Every person who, having been convicted of any offense punishable by imprisonment in the state prison, commits any crime after such conviction, if the offense of which he is subsequently convicted is such that, upon the first conviction, he would be imprisoned in the state prison for any term exceeding five years, is punishable by imprisonment in the state prison not less than ten years. If his first conviction was punishable by imprisonment for five years or less then he is punishable by imprisonment for not exceeding ten years. If the subsequent conviction is for petit larceny, or an attempt to commit any offense which, if committed, would be punishable by imprisonment in the state prison not exceeding five years, then the per- son convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding five years. If the conviction was for petit larceny,- or an attempt to commit an offense, which, if perpetrated, would be punish- able by imprisonment in the state prison, then upon con- viction of a subsequent offense, if it be an offense such that, upon first conviction, would be punishable by imprison- ment in the state prison for life, at the discretion of the court, such person is punishable by imprisonment in such prison during life. If for a term less than for life, it would be punishable by imprisonment for the longest term prescribed upon the conviction for the first offense. If the subsequent conviction is for petit larceny or an attempt 40 Ex parte Wadleigh, 82 Cal. 518. *i Ex parte Dalton, 49 Cal. 463. SENTENCE AND JUDGMENT. 453 to commit an offense which, if perpetrated, would be pun- ishable by imprisonment in the state prison, then such person is punishable by imprisonment in such prison for not exceeding five years. 42 ' Ex parte Young Ah Gow, 73 Cal. 438; Ex parte Williams, 89 Cal. 421; People v. Johnson, 88 Cal. 171; People V. Douglass, 87 Cal. 281. CHAPTER LXIII. NEW TRIAL. A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. 1 The application for a new trial must be made before judgment. 2 It must be based upon objections taken after the plea and including the verdict; objections before the plea as to the indictment, are not revievvable. 3 The time to ask for a new trial begins to run from the rendition of the verdict. 4 Notice of the motion is not a part of the judgment roll, and to become a part of the record must be incorporated in a bill of exceptions. 5 GROUNDS OF THE MOTION. A motion is an application for an order made viva voce in open court ; a written application, not called to the atten- tion of the court, is not a motion. 6 A new trial can be granted only upon the following grounds: (i) The absence at the trial in felony cases of the accused; (2) when the jury has received evidence out of court; (3) sep- aration of the jury after retiring to deliberate, or other misconduct by which a fair and due consideration of the case has been prevented ; (4) where the decision is by lot; (5) where the court misdirected the jury as to law, or erred in its decision of a question of law ; (6) where the verdict is contrary to law or evidence; (7) 1 Penal Code 1179. 2 Penal Code 1182. s People v. Turner, 39 Cal. 370. 4 People v. Hill, 16 Cal. 113. s People v. Crowley, 100 Cal. 478. e People v. Ah Sam, 41 Cal. 645; Spencer v. Branham, 109 Cal. 340. NEW TRIAL. 455 newly discovered evidence. 7 If asked for upon the ground of surprise at the testimony of a witness, the affidavits must show that the testimony given was not true, 8 and, if upon the ground of absence of witnesses, the application should be supported by affidavits of such witnesses that they can testify to facts sought to be proved, or some good excuse must be given for not pre- senting such affidavits. 9 The defendant should be per- mitted to show improper influence of the jury on his motion, 98 - but where the evidence of the misconduct is con- flicting, a new trial will not be granted. 10 Where the application is made upon the ground of newly discovered evidence, it must be made to appear : ( i ) That the testi- mony is not merely material, but that it is newly discov- ered ; (2) that it is not merely cumulative; (3) that it will render a different result probable ; (4) that with reasonable diligence, it could not have been discovered prior to the trial ; ( 5 ) that these facts be shown by the best evidence. 11 Newly discovered evidence which is merely cumulative, 12 or impeaching, 13 or contradictory in 7 Penal Code 1181; People v. Fair, 43 Cal. 137; People v. Voll, 43 Cal. 167; People v. McCarty, 48 Cal. 559; People v. Shainwold, 51 Cal. 470; People v. O'Brien, 88 Cal. 488; People v. Gardener, 98 Cal. 128. s People v. Jocelyn, 29 Cal. 562. o People v. De Lacey, 28 Cal. 590; People v. Jocelyn, 29 Cal. 563; Arnold v. Skaggs, 35 Cal. 688. oa People v. Murray, 85 Cal. 350. 10 People v. Anthony, 56 Cal. 399; People v. Thornton, 74 Cal. 488. 11 People v. Urquidas, 96 Cal. 239; People v. Benc, 130 Cal. 167; People v. Howard, 74 Cal. 547; People v. Soap, 127 Cal. 408; People v. Miller, 33 Cal. 98; People. v. Ah Ton, 53 Cal. 741; People v. Chin Hing Chang, 74 Cal. 389; People v. Brittan, 118 Cal. 409; People v. Luchetti, 119 Cal. 501; People v. Leong Yune Gun. 77 Cal. 636. 12 People v. Hong Quin Moon, 92 Cal. 41; People v. Anthony, 56 Cal. 397; People v. Goldenson, 76 Cal. 352; People v. Loui Tung, 90 Cal: 379; People v. M'Donell, 47 Cal. 134; People v. O'Brien, 78 Cal. 41; People v. Faun Ah Sing, 70 Cal. 8; People v. Wong Ah Foo, 69 Cal. 180; People v. Brittan, 118 Cal. 409; Peonle v. Demasters, 109 Cal. 607; People v. Kloss, 115 Cal. 567; People v. Mesa, 93 Cal. 581. is People v. Goldenson, 76 Cal. 328; People v. Loui Tung, 90 Cal. 377; People v. Ah Noon, 116 Cal. 656. 456 CRIMINAL LAW AND PROCEDURE. character, is not sufficient ground for a new trial. 14 So strict is the rule against granting the motion on a showing merely contradictory of the evidence at the trial, that it will be denied even where the affidavits show the wit- nesses committed perjury upon the trial, or where a wit- ness confesses perjury. 15 But if the new evidence will show innocent possession of the property alleged to have been stolen, it is sufficient to grant a new trial. 10 The motion should be denied when the verdict will not be changed by the new evidence, 17 or where it might have been elicited on cross-examination. 18 The application is addressed to the sound discretion of the trial court, 10 and it is not an abuse of discretion to deny a motion where the affidavits are fully contradicted by counter-affidavits. 20 A showing must be made of the nature and character of the newly discovered evidence, 21 as the motion is viewed with suspicion and disfavor when made upon this ground. 22 Where the affidavits are conflicting, the ruling will not be disturbed on appeal, 23 the presumption being in favor of the record. 24 The application must show why the evidence was not produced at the trial. 25 When it is not on a point i* People v. Anthony, 56 Cal. 399; People v. Loui Tung, 90 Cal. 379; People v. McCauley, 45 Cal. 146; People v. Free- man, 92 Cal. 370. I- People v. Tallmadge, 114 Cal. 427. is People v. Stanford, 64 Cal. 27. i' People v. Demasters, 109 Cal. 607. is People v. Phelan, 123 Cal. 551. 19 People v. Griner, 124 Cal. 19; People v. Demasters, 109 Cal. 607; People v. Mitchell, 129 Cal. 584; People v. Chew Wing Gow, 120 Cal. 298; People v. Hotz, 73 Cal. 241; People v. Lum Yit, 83 Cal. 134; People v. Knutte, 111 Cal. 456; People v. Flood, 102 Cal. 333. 20 People v. Fice, 97 Cal. 459. 21 People v. Eppinger, 114 Cal. 350. 22 People v. Freeman, 92 Cal. 359; People v. Tallmadge, 114 Cal. 430; People v. Sutton, 73 Cal. 243; People v. Howard, 74 Cal. 549; People v. Rushing, 130 Cal. 455; People v. Leong Yune Gun, 77 Cal. 637; People v. Ur- quidas, 96 Cal. 241. 23 People v. Woon Tuck Wo, 120 Cal. 294; People v. Clarke, 130 Cal. 642; People v. Demasters, 109 Cal. 607; People v. Merkle, 89 Cal. 82. 2* People v. Warren, 130 Cal. 683; People v. Freeman, 92 Cal. 359; People v. Rushing, 130 Cal. 449. 25 People v. Nelson, 85 Cal. 421; People v. McCurdy, 68 Cal. 576. NEW TRIAL. 457 raised at the trial, 20 or the counter-affidavits show that unless the evidence is false, the defendant must have known of it before the trial, the showing is not sufficient. 27 A motion on the ground of newly discovered evidence will not be considered on appeal without the affidavits used in support thereof are incorporated in a bill of excep- tions. 28 It cannot be amended after judgment, 29 and the court may refuse to set aside the order denying the motion to admit new affidavits. 30 WHEN GRANTED. Where the trial court thinks the evidence insufficient to convict, it should grant the motion for a new trial, and not leave it to the appellate court, which has jurisdiction only on questions of law. 31 It will be granted only on the application of the defendant, 3 - and the order granting will be reversed only for an abuse of discretion. 33 It will not be entertained for a second time upon an entry of judgment mine pro tune after the appeal. 34 The order denying a new trial cannot be set aside pending an appeal. 36 The record must show the grounds of the motion, or the order refusing it will not be reversed. 30 Errors on plea of "once in jeopardy" may be reviewed as well as those on a plea of "not guilty," 37 and it will bring up any ruling denying the defendant a statutory privilege. 38 Affidavits 20 People v. O'Neal, 67 Cal. 378; People v. Freeman, 92 Cal. 370. *~ People v. Cesena, 90 Cal. 381. ^s People v. Fredericks, 106 Cal. 554. -" People v. Wessel, 98 Cal. 358. > People v. Flannelly, 128 Cal. 83. si People v. Lum Yit, 83 Cal. 130; People v. Knutte, 111 Cal. 453; People v. Baker, 39 Cal. 686; People v. Flood, 102 Cal. 330; People v. Ashnauer, 47 Cal. 98; People v. Chew Wing Gow, 120 Cal. 298. -- People v. Bangeneaur, 40 Cal. 613. 33 People v. Knutte, 111 Cal. 453. People v. Sing Lum, 61 Cal. 538. ' r ' People v. Mayne, 118 Cal. 516. People v. McCoy, 71 Cal. 395. - People v. Smith, 121 Cal. 355; People v. Majors, 65 Cal. 138. People v. Ah Fong, 12 Cal. 345. 458 CRIMINAL LAW AND PROCEDURE. used on motion must be embodied in a bill of exceptions, as they are not a part of the record on appeal. 3 " On- reversal, a new trial should be ordered, although not asked for. 40 The motion for a new trial on the ground of the insufficiency of the evidence may be heard without a statement, 41 or bill of exceptions. 42 The failure to record the verdict before the jury is discharged is not a sufficient irregularity for which to grant a new trial. 43 The motion may be heard by a successor of the judge who tried the case. 44 The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict cannot be used or referred to either in evidence or in argument, or be pleaded in bar of any conviction which might have been under the indictment. 45 MOTION IN ARREST OF JUDGMENT. The motion can be founded only on defects appearing on the face of the indictment or information. 46 The defects must be substantial ones. 47 The* specific grounds On which the motion is made must be pointed out. 48 The effect of the granting of a motion must be to discharge the defendant unless he is detained on other process, 40 but 39 People v. Price, 17 Cal. 311; People v. Mahoney, 77 Cal. 532; People v. Louie Foo, 112 Cal. 21; People v. Padillia, 42 Cal. 535. 40 People v. Lee Yune Chong, 94 Cal. 380; People v. Olwell, 28 Cal. 456. 41 People v. Fisher, 51 Cal. 319; Lin Tai v. Hewill, 56 Cal. 118. 42 People v. Keyser, 53 Cal. 183. 43 People v. Gilbert, 57 Cal. 96; People v. Beck, 58 Cal. 212; People v. Smith, 59 Cal. 603; People v. Smalling, 94 Cal. 119. 44 People v. Hodgdon, 55 Cal. 72; People v. Hobson, 17 Cal. 424; People v. Henderson, 28 Cal. 475. 45 Penal Code 1180. 4 Penal Code 1185; People v. Chaves, 122 Cal. 134; People v. McConnell, 82 Cal. 620; People v. O'Leary, 77 Cal. 30; People v. McCarty, 48 Cal. 557; People v. Gardner, 98 Cal. 127; People v. Cole, 127 Cal. 545; People v. John- son, 71 Cal. 384. 47 People v. Ross, 103 Cal. 425. 48 People v. Dick, 37 Cal. 277; People v. Sansorce, 98 Cal. 239. 4f> Ex parte Hartman, 44 Cal. 32. NEW TRIAL. 459 it operates as an acquittal only when no evidence has been shown sufficient to charge the defendant with any offense. It is not necessary that the evidence should be sufficient to convict in order to sustain a denial. 50 Neither the order denying the motion, 51 nor the order granting it, is appealable. 52 so People v. Eppinger, 109 Cal. 294. si People v. Dolan, 96 Cal. 315; People v. Markham, 64 Cal. 157; People v. Majors, 65 Cal. 100; People v. Henry, 77 Cal. 446; People v. Cline, 83 Cal. 374; People v. San- some, 98 Cal. 241. 52 People v. Ah Kim, 44 Cal. 384. CHAPTER LXIV. JURISDICTION. The jurisdiction of the Supreme Court upon appeal extends only to questions of law, and only in such cases where the defendant has been convicted of a felony. 1 But where the offense charged may be either a felony or a mis- demeanor according to the punishment inflicted, the Supreme Court has jurisdiction of appeals from orders before judgment. 2 It also has jurisdiction of appeals in misdemeanor cases prosecuted by indictment or informa- tion. 3 Its jurisdiction attaches only while the defendant is in actual or constructive custody. If the defendant escapes after conviction, he cannot appeal to the Supreme Court through his attorney. 4 Such an appeal will be dis- missed unless the defendant within a specified time returns to custody. 5 An appeal without the consent of the defend- ant and against his express directions will be affirmed with- out discussion. 5a Where the remittitur has been regularly issued without any inadvertancy it cannot be recalled, 6 and the affirmation of the judgment reinvests the trial court with jurisdiction to enforce its judgment without any order. 7 1 Penal Code 1235; People v. Johnson, 30 Cal. 102; People v. Cornell, 16 Cal. 187; People v. Aubrey, 53 Cal. 427; People v. Apgar, 35 Cal. 389. 2 People v. War, 20 Cal. 17. s People v. Jordan, 65 Cal. 644. 4 People v. Redinger, 55 Cal. 290. e People v. Elkins, 122 Cal. 654; People v. Redinger, 55 Cal. 290. sapeople vs. Peller, 132 Cal. 615. e People v. Sprague, 57 Cal. 147; People v. McDermott, 97 Cal. 248; In re Levinson, 108 Cal. 459. - People v. Dick. 39 Cal. 102. APPEAL. 461 APPEALABLE ORDERS. An appeal may be taken by the defendant from a final judgment of conviction and from an order denying a motion for a new trial. 8 It may also be taken from an order made after judgment, affecting his substantial rights. 8 Thus, an order fixing the date of execution is appealable, 10 but an appeal from such an order does not stay the judgment, and is of no effect after the lapse of the time fixed for the execution. 11 Confinement pending the time of execution is involved in an appeal from 'the judgment, and is res adjudicata after the appeal is decided. 12 The defendant has no appeal from an action dismissing the prosecution and discharging him from custody, 13 nor from an order denying his motion in arrest of judgment, 14 nor from an order overruling a demurrer to the indictment or information, 15 but upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment. 16 An appeal may be taken by the people from an order setting aside the indictment or information, 17 from an order dis- missing the cause and discharging the defendant, 18 from a judgment sustaining a demurrer to the indictment or information, 19 but such an order is not appealable when the demurrer questions the grade of the offense and s Penal Code 1237; People v. Thompson, 115 Cal. 160. '> Penal Code 1237; People v. Clarke, 42 Cal. 622; People v. Ah Kim, 44 Cal. 385. 10 People v. Ebanks, 117 Cal. 652; People v. Sprague, 54 Cal. 92; People v. McNulty, 95 Cal. 595; People v. Dur- rant, 116 Cal. 209. 11 People v. Ebanks, 120 Cal. 623. 12 People v. Durrant, 116 Cal. 201. is People v. Stokes, 102 Cal. 501. People v. Majors, 65 Cal. 100; People v. Cline, 83 Cal. 374. is People v. Hall, 45 Cal. 253; People v. Ah Fong, 12 Cal. 425. IG Penal Code 1259. IT Penal Code 1238; People v. Young, 31 Cal. 564; People v. More, 68 Cal. 500; People v. Simmons, 119 Cal. 1; People v. Stacey, 34 Cal. 307. is People v. Giesea, 63 Cal. 345. 19 Penal Code 1238; People v. Ah Own, 3^ Cal. 604; People v. Martin, 47 Cal. 113. 462 CRIMINAL LAW AND PROCEDURE. leaves the matter as to the lesser offense untried. 20 The minutes of the court are not a part of the judgment roll on an appeal from an order sustaining a demurrer, but must be incorporated in a bill of exceptions. 21 The peo- ple also have an appeal from an order granting a new trial, from an order arresting the judgment, from an order directing the jury to find for the defendant, 22 and from an order made after judgment, affecting the sub- stantial rights of the people. 23 But the people cannot ap- peal from an order setting aside an information, 24 or dis- missing the action. 25 An appeal by the people can be had only for errors committed before the jeopardy of the defendant. 20 Intermediate orders are not appealable. To be appealable the order must be final ; 27 thus an order refus- ing to issue a commission to take testimony or to change the place of trial is not final, and is re viewable only on an appeal from the final judgment. 28 RECORD ON APPEAL. The transcript must show that a notice was served and filed. 29 Two appeals can not be taken on one notice. 30 It must show affirmatively that an appeal has been taken. 31 The record must be presented by a bill of exceptions or in some way authenticated, 32 and must contain evidence on every material fact to be proved. 33 The presumption is that all the evidence is in the record. 34 On an appeal 20 People v. Martin, 47 Cal. 112. 21 People v. Long, 121 Cal. 494. 22 Penal' Code 1238. 23 Penal Code 1238; People v. Higgins, 114 Cal. 63. 24 People v. Hollis, 65 Cal. 78; People v. Higgins, 114 Cal. 63. 25 People v. More, 71 Cal. 546. 20 People v. Webb, 38 Cal. 467; People v. Campbell, 59 Cal. 256; People v. Horn, 70 Cal. 17. 27 People v. Clarke, 42 Cal. 622. 28 People v. Stillman, 7 Cal. 118. 20 People v. Clark, 49 Cal. 455; People v. Bell, 70 Cal. 34; People v. Colon, 119 Cal. 669. so People v. Center, 61 Cal. 195. si People v. Phillips, 45 Cal. 44; People v. Bell, 70 Cal. 33; People v. Colon, 119 Cal. 669. 32 People v. Brooks, 131 Cal. 311. ss People v. Griffith, 122 Cal. 212. s* People v. McGregar, 88 Cal. 140. APPEAL. 463 from the judgment, the record must embody the judg- ment. The entry in the minutes is not the judgment. The record must show the grounds for a new trial and the order refusing it. 35 Unidentified papers are not a part of the record. 30 The instructions, when duly endorsed, belong to the judgment roll, and not to the bill of excep- tions, and the form given in the judgment roll will gov- ern over those given in the bill of exceptions. 37 The opinion of the trial judge is not properly a part of the record, but when it shows a new trial should be granted, the record will be closely scrutinized for errors. 38 It is the official duty of the clerk to print the transcript on appeal. It is not within the control of the board of super- visors. 39 If the appeal is not taken in time, it must be dismissed. 40 And where it has been dismissed for want of prosecution it will not be reinstated unless it be shown that there is merit in it. 41 The appeal will never be dis- missed on the ground that it is frivolous. 42 EFFECT OF APPEAL. The appeal from a judgment suspends its force, and it cannot be used as evidence in another action, 43 but it may be used to impeach a witness who was convicted of a fel- ony thereby. 44 An appeal to the United States Supreme Court from an order of the Circuit Court, denying an application for a writ of habeas corpus, stays the hands of the state court and state authorities during its pendency, and is presumed to continue as a stay until evidence to the contrary is shown. 45 The merits of the appeal will as People v. Lenon, 77 Cal. 308. se People v. Louie Foo, 112 Cal. 17. 37 People v. Gibson, 106 Cal. 458. 38 People v. Tapia, 131 Cal. 647. 39 People v. Black, 120 CaL 553. 40 People v. Daniels, 105 Cal. 262; People v. Varnum, 53 Cal. 630. 41 People v. Busby, 113 Cal. 181. 42 People v. McNulty, 95 Cal. 594. 43 People v. Murback, 64 Cal. 368; People v. Gibbs, 98 Cal. 655; People v. Beevers, 99 Cal. 286. 44 People v. Ward, decided Oct. 13, 1901. 4. r . People v. Durrant, 119 Cal. 54. 464 CRIMINAL LAW AND PROCEDURE. not be considered in determining the question of the right to a stay of proceedings. 40 BILL OF EXCEPTIONS. An exception is a formal protest against the ruling of the court upon a question of law ; and a bill of exceptions is a statement in writing, settled and signed by the judge, of what the ruling was, the facts in view of which it was made, and the protest of counsel. 47 A bill of exceptions on appeal is not necessary when the record shows error without it, 48 but is necessary to review the evidence; 49 otherwise, the presumption is in favor of the judgment, 80 and the verdict will not be disturbed for insufficiency of the evidence. 51 The objections should be presented and exception taken in the court below/' 2 HOW PREPARED. Where a party desires to have the exceptions settled in a bill of exceptions, the draft of a bill must be prepared by him and presented, upon notice of at least two days to the adverse party, to the judge, for settlement, within ten days after the order or ruling complained of is made, unless further time is granted, or within that period the draft must be delivered to the clerk of the court for the judge. When received by the clerk, he must deliver it to the judge, for transmit it to him at. the earliest period practicable. When settled, the bill must be signed by the judge, and filed with the clerk of the court. If the judge in any case refuses to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the Supreme Court to prove the same, the application may be made in the mode and manner, and 46 Ex parte Edgar, 119 Cal. 123. 47 People v. Torres, 38 Cal. 141. 48 People v. Maguire, 26 Cal. 635; Morley v. Elkins, 37 Cal. 457. 4 People v. Padillia, 42 Cal. 535; People v. Terrill, 131 Cal. 113. 50 People v. Fowler, 88 Cal. 136. si People v. Dye, 62 Cal. 523. 52 People v. Sing Lum, 61 Cal. 538; People v. Goldenson, 76 Cal. 346. APPEAL. 465 under such regulations as that court may prescribe; and the bill, when proven, must be certified by the chief justice as correct, and filed with the clerk of the court in which the action was tried, and when so filed it has the same force and effect as if settled by the judge who tried the cause. If the judge who presided at the trial ceases to hold office before the bill is tendered or settled, he may nevertheless settle such bill, or the party may apply to the Supreme Court to prove the same. 53 The proposed bill may refer to and make a part of it documents in other parts of the record, which are properly identified, 54 but papers unauthenticated cannot be made a part of it. 55 Thus, a charge of the court is not a part of the judgment roll, unless authenticated by the court, 56 neither are the pro- ceedings before the magistrate. 57 Unauthentioated affi- davits not made a part of the bill of exceptions cannot be considered on appeal, as they are not a part of the record. 58 In order to make them a part of the record, affidavits for a continuance, 59 affidavits to the incom- petency of a juror, 60 affidavits used on a motion, 61 the rec- ord on appeal from an order sustaining a demurrer, 62 and the reporter's notes, 63 must be embodied in a bill of excep- tions. The record in the Supreme Court cannot be cor- rected by affidavits, 04 and ought not to be duplicated by a 53 Penal Code 1174. 5-t People v. Wallace, 94 Cal. 497; People v. Bartlett, 40 Cal. 142; Sharon v. Sharon, 79 Cal. 640; Reclamation Dis- trict v. Hamilton, 112 Cal. 607. ss People v. Ah Lee Boon, 97 Cal. 171. 56 People v. Flahave, 58 Cal. 249; People v. January, 77 Cal. 181. 57 People v. Shurbrick, 57 Cal. 565. ss People v. McMahon, 124 Cal. 435; People v. Price, 17 Cal. 311; People v. Mahoney, 77 Cal. 529; People v. Louie Foo, 112 Cal. 21. 59 People v. Weaver, 47 Cal. 106. eo People v. Stonecifer, 6 Cal. 405; People v. Honshell, 10 Cal. 86; People v. Martin, 32 Cal. 92. i People v. Honshell, 10 Cal. 83; People v. Martin, 32 Cal. 92. 62 People v. Long, 121 Cal. 494. 63 People v. Herbert, 61 Cal. 544. e* People v. Jordan, 66 Cal. 10; Sharon v. Sharon, 67 Cal. 219. CRIMES --3O 466 CRIMINAL LAW AND PROCEDURE. bill of exceptions. ? The bill should follow as nearly as possible, the narrative form, 60 and the exception should -show the answers to the questions objected to. 67 The bill is presumed to contain all the evidence; 08 it is the duty of the prosecution to embody it all therein, 69 and have it -show the guilt of the accused ; 70 otherwise it will be pre- sumed that the verdict is contrary to the evidence. 71 The bill should contain the grounds relied upon for a new trial, and so much of the evidence, proceedings and deci- sions as may be necesssary to explain such ground, 72 and present the questions of law upon which the exceptions were taken. 73 There is no difference in form between a bill of exceptions and a statement on motion for a new trial. 74 SPECIFICATIONS OF ERRORS. Specifications of errors cannot be considered where the bill does not show the occurrence of the error specified, 75 and where there is no assignment of errors or statement of points and authorities, the appeal will be dismissed, 70 or the judgment will be affirmed. 77 The court will not review errors not excepted to, 78 nor will it consider on 66 People v. Cole, 127 Cal. 545. ee People v. Getty, 49 Cal. 581. 67 People v. Graham, 21 Cal. 261; People v. White, 34 Cal. 188. s People v. McGregar, 88 Cal. 140. 69 People v. Buckley, 116 Cal. 146; People v. Dye, 62 Cal. 524; People v. English, 52 Cal. 211; People v. Perdue, 49 Cal. 425; People v. Tipton, 73 Cal. 405. 70 People v. Olivie, 60 Cal. 69. 71 People v. Fisher, 51 Cal. 319; People v. Dye, 62 Cal. 524; People v. Johnson, 91 Cal. 270; People v. Buckley, 116 Cal. 148; People v. Griffith, 122 Cal. 212. 72 People v. Keyser, 53 Cal. 183; Lim Tai v. Hewill, 56 Cal. 118. 73 Penal Code 1175. 74 People v. Crane, 60 Cal. 279; People v. Bitancourt, 74 Cal. 190. 75 People v. Faulke, 96 Cal. 17; People v. Bemmerly, 98 Cal. 303. 76 Peeple v. Comedo, 11 Cal. 71. 77 People v. Goldbury, 10 Cal. 313. 78 People v. Morino, 85 Cal. 515. APPEAL. 467 appeal, errors not argued by the appellant, 70 except in cases of murder of the first degree where the sentence is death. 80 HOW SETTLED. A written notice to the district attorney of the time and place of settlement is required. 1 The judge may refuse to settle where a notice is not so given. 2 The Supreme Court will not consider a petition on an application for a writ of mandate to compel the filing of a bill of exceptions if it fails to show that the bill was presented to the trial judge for settlement upon the notice required by law to be given to the district attorney. 3 The judge may add any testimony given pertinent to the exception, correct any errors therein, 4 and strike out all matters not neces- sary to present the questions of law upon which the excep- tions were taken. 3 The statement should be prepared and tendered within the statutory time, or such further time as may be allowed by the judge. 6 But the time fixed by the statute for the settlement of the bill of exceptions is merely directory, 7 and a failure to sign within the time prescribed by law will not defeat the right of appeal. 8 If the bill is settled after the statutory time has run, the Supreme Court will presume that sufficient reason existed therefor, 9 and in the absence of a showing to the contrary that the bill was regularly signed by the judge. 10 It so People v. Clark, 121 Cal. 633. 1 Page v. Superior Court, 122 Cal. 209. 2 People v. Sprague, 53 Cal. 422; Frazer v. Superior. Court, 62 Cal. 50; January v. Superior Court, 73 Cal. 540; Peo- ple v. Goldenson, 76 Cal. 328; People v. Hill, 78 Cal. 406; People v. Raschke, 73 Cal. 379. s Anschlag v. Superior Court, 76 Cal. 513. * People v. Kelly, 46 Cal. 356. s Penal Code 1175. e People v. Lee, 14 Cal. 51*; People v. Sprague, 53 Cal. 424. 7 People v. White, 34 Cal. 183; People v. Woppner, 14 Cal. 437; People v. Lee, 14 Cal. 511; People v. 'Sprague, 53 Cal. 424; People v. Goldenson, 76 Cal. 351. s People v. Martin, 6 Cal. 477; People v. Woppner, 14 Gal. 438. 9 People v. Raschke, 73 Cal. 378; People v. Lee, 14 Cal. 511; People v. White, 34 Cal. 188; People v. Sprague, 53 Cal. 424. 10 People v. Martin, 6 Cal. 477; People v. Robinson, 17 Cal. 371. 79 People v. Gibson, 106 Cal. 458; People v. Woon Tuck Wo, 120 Cal. 294 People v. Breen, 130 Cai. 72. 468 CRIMINAL LAW AND PROCEDURE. must be settled by the judge, the attorneys cannot do it, 11 and a certificate to that effect must be added thereto. 111 It may be delivered to the clerk whenever the judge cannot be found. 13 A statement and a bill of exceptions under the statutes fixing time for settlement are identical. 1 * The defendant, after conviction, is entitled to a stay of pro- ceedings until the bill may be settled, provided he exer- cises proper diligence, and if refused by the trial court, the chief justice of the Supreme Court will grant a stay pending an application for a certificate of probable cause to the Supreme Court. 15 Where the bill is contradicted by the minutes of the court, the latter govern on appeal. 16 It is unnecessary to incorporate in the bill errors against the respondent, as they cannot be considered on an appeal. 17 CERTIFICATE OF PROBABLE CAUSE. An appeal to the Supreme Court from a judgment of conviction stays the execution of the judgment in all capital cases, and in all other cases upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the Supreme Court, that, in his opinion, there is probable cause for the appeal, but not otherwise. 18 A certificate of probable cause for appeal is not equivalent to a certificate of proba- ble grounds for reversal of the judgment, but only that debatable questions are presented by the record. 10 It should be granted unless the case is so clear as to admit of no doubt. 20 It is the duty of the trial judge in such cases to grant the certificate; it will be granted by the Supreme 11 People v. Ferguson, 34 Cal. 309; People v. Trim, 37 Cal. 275; People v. Padillia, 42 Cal. 538. 12 People v. Trim, 37 Cal. 274; People v. Padillia, 42 Cal. 539. is People v. Lee, 14 Cal. 511; People v. Sprague, 53 Cal. 424; Sprague v. Fawcett, 53 Cal. 409. " People v. Lee, 14 Cal. 511; People v. Spiague, 53 Cal. 424; People v. Crane, 60 Cal. 280. is People v. Lane, 96 Cal. 596. i6 People v. O'Brien, 88 Cal. 483. IT People v. Noregea, 48 Cal. 123. is Penal Code 1243. 19 In re Adams, 81 Cal. 163; People v. Durrant, 119 Cal. 202. 20 People v. Valencia, 45 Cal. 304; In re Adams, 81 Cal. 167. APPEAL. 469 Court only where the trial judge is absent and the other judges of the county refuse to grant it. 21 Where the trial court refuses a certificate of probable cause, the remedy for it is not by appeal, but by application to a justice of the Supreme Court. 22 The Supreme Court will not interfere until the record is presented on appeal, 23 and will grant the certificate only on notice to the District Attorney and on a settled bill of exceptions, 24 but will grant the defendant a reasonable stay until the record can be prepared. 25 The im- prisonment, if a part of the penalty, is not, stayed without a certificate of probable cause. 26 An appeal from an order fixing the date of the execution does not ipso facto stay the execution, but there must be a certificate of probate cause. 27 After the dismissal of an appeal the defendant will be re- committed, notwithstanding no certificate of probable cause was filed staying the execution. 28 PRESUMPTION AGAINST ERROR. On appeal error must affirmatively appear. The legal presumption is against it, 29 and in favor of the validity of the court and the regularity of its proceedings in the absence of an affirmative showing to the contrary. 30 Thus 21 People v. Clark, 125 Cal. 251. 22 People v. Durrant, 119 Cal. 202. 23 People v. Clark, 125 Cal. 251. 24 Inj re Adams, 81 Cal. 163; People v. Lane, 96 Cal. 596. 25 in Matter of Adams, 81 Cal. 163. 26 EX parte Fredericks, 104 Cal. 400. 27 People v. McNulty, 95 Cal. 594. 23 Ex parte Whitty, 65 Cal. 168. 29 People v. Williams, 84 Cal. 616; People v. Holmes, 118 Cal. 449; People v. Neary, 104 Cal. 373; People v. Grun- dell, 75 Cal. 301; O'Callaghan v. Bode, 84 Cal. 498; People v. Winters, 29 Cal. 659; People v. Ebanks, 117 Cal. 665; People v. Barton, 88 Cal. 178; People v. Buckley, 116 Cal. 148; People v. Marks, 72 Cal. 46; People v. Von, 78 Cal. 1; People v. Leong Sing, 77 Cal. 117; People v. Tonielli, 81 Cal. 279; People v. Johnson, 88 Cal. 175; People v. Huff, 72' Cal. 117; People v. Cline, 83 Cal. 376; People v. Bemmerly, 98 Cal. 299; People v. Arlington, 131 Cal. 231; People v. Sansome, 98 Cal. 235; People v. Gillis, 97 Cal. 542. so People v. McAuslan, 43 Cal. 55; People v. Woods, 43 Cal. 177; People v. Lum Yit, 83 Cal. 132; People v. Williams, 45 Cal. 25; People v. Stanley, 47 Cal. 120; People v. 470 CRIMINAL LAW AND PROCEDURE. it is presumed, where the transcript does not embrace all the evidence, that proof of venue was made, 31 that the jury regarded and considered all of the instructions, 32 that the instructions did ho injury to the defendant, 33 and that they were correct 34 unless they are wrong under every con- ceivable state of facts, 35 that an oral charge of the court was taken down by the reporter, 30 that instructions refused had no evidence to support them, 37 and that the court cor- rected objectionable remarks of the district attorney, and instructed the jury to disregard them. 38 But where the record on appeal is presented, the court will not presume that other proceedings than those shown were had. 39 The instructions unless wrong under every conceivable state of Brotherton, 47 Cal. 405; People v. Marks, 72 Cal. 47; People v. Huff, 72 Cal. 119; People v. Leong Sing, 77 Cal. 119; People v. Gibson, 106 Cal. 472; People v. Bar- bour, 9 Cal. 230; People v. Robinson, 17 Cal. 371; People v. Ludwig, 118 Cal. 328; People v. Cummingb, 113 Cal. 88; People v. Wheatley, 88 Cal. Ii4; People v. Owens, 123 Cal. 482; People v. Gibson, 106 Cal. 458; People v. Reilly, 106 Cal. 650; People v. Ebanks, 117 Cal. 665; People v. Connor, 17 Cal. 354; People v. Hobson, 17 Cal. 430; People v. Blackwell, 27 Cal. 67; People v. Henderson, 28 Cal. 475; People v. Richmond, 29 Cal. 415; People v. Lawrence, 21 Cal. 372; Ex parte Bull, 42 Cal. 196; People v. Creegan, 121 Cal. 554; People v. Mitchell, 100 Cal. 328; People v. Ross, 115 Cal. 233; People v. Swafford, 65 Cal. 223. si People v. Carroll, 80 Cal. 153; People v. Tonielli, 81 Cal. 279; People v. Barton, 88 Cal. 178. 32 People v. Durrant, 116 Cal. 181. 33 People v. Brotherton, 47 Cal. 288. s* People v. Johnson, 47 Cal. 122; People v. Best, 39 Cal. 691; People v. Long, 39 Cal. 694; People v. Dick, 34 Cal. 663; People v. Smith, 57 Cal. 131; People v. Barry, 31 Cal. 357; People v. Dick, 32 Cal. 215; People v. Wil- liams, 75 Cal. 306. as People v. Donguli, 92 Cal. 607; People v. Bourkt, 66 Cal. 456; People v. Bonney, 19 Cal. 427; People v. Strong, 46 Cal. 303; People v. Smith, 57 Cal. 132; People T. Ramirez, 56 Cal. 538; People v. Torres, 38 Cal. 143; People v. Levison, 16 Cal. 99; People v. King, 27 Cal. 514. 36 People v. Bourke, 66 Cal. 455. 37 People v. Gilbert, 60 Cal. 108; Carpenter v. Ewing, 76 Cal. 488. ss People v. Monila, 126 Cal. 505. 3 People v. Gaines, 52 Cal. 479; People v. Moore, 103 Cal. 511; People v. Kelly, 120 Cal. 273. APPEAL. 471 facts will not be reviewed in the absence of the testimony, 40 nor irregularities considered in the absence of objection and exception. 41 But error when shown is presumed to be prejudicial to the defendant, 42 unless the contrary plainly appears from the face of the record. 43 REVIEW OF EVIDENCE. Evidence cannot be reviewed on appeal, unless a bill of exceptions is presented. 44 The record must contain the material portions of the testimony, 45 but in order to review it for insufficiency, that must have been one of the grounds of the motion for a new trial. 46 Where the evidence is insuf- ficient to sustain the conviction it will be reversed, although the defendant made a false statement -as to a matter in no 40 People v. Clark, 121 Cal. 633; People v. McCauley, 1 Cal. 380; People v. Baker, 1 Cal. 404; People v. L,afuente, 6 Cal. 202. 41 People v. Torres, 38 Cal. 142. 42 People v. Smith, 93 Cal. 445; People v. Murphy, 47 Cal. 103; People v. Ybarra, 17 Cal. 166; People v. Ramirez, 56 Cal. 538; Ex parte Bernert, 62 Cal. 528; People v. Eppinger, 109 Cal. 297; People v. Stanley, 47 Cal. 113; People v. Williams, 18 Cal. 187; People v. Furtado, 57 Cal. 345; People v. Tucker, 115 Cal. 339; People v. Marshall, 112 Cal. 422. People v. Nelson, 85 Cal. 422; People v. Gordon, 88 Cal. 422; People v. Murray, 85 Cal. 350; People v. Ebanks, 117 Cal. 665; People v. Russell, 81 Cal. 616; People v. Barnhart, 59 Cal. 381; People v. Muhlner, 115 Cal. 306; People v. Maroney, i09 Cal. 279; People v. Lowen, 109 Cal. 384; People v. Brotherton, 47 Cal. 384; People v. Murback, 64 Cal. 372; People v. Campbell, 59 Cal. 256; People v. Olsen, 80 Cal. 122; People v. Elliott, 80 Cal. 296; People v. Daniels, 105 Cal. 262; People v. Bennett, 65 Cal. 267; People v. O'Neal, 67 Cal. 378; People v. Boling, 83 Cal. 382; People v. Gordon, 88 Cal. 425; People v. Clark, 106 Cal. 40; People v. Tarm Poi, 86 Cal. 225; People v. Ah Kong, 49 Cal. 6; People v. Barthleman, 120 Cal. 7; People v. Clary, 72 Cal. 59; People v. Shaw, 111 Cal. 171; People v. Smith, 105 Cal. 676; People v. Fenwick, 45 Cal. 287; People v. Plummer, 12 Cal. 256; People v. Ah Jake, 91 Cal. 98; People v. McGregar, 88 Cal. 140; People v. Parton, 49 Cal. 632; Ex parte Ber- nert, 62 Cal. 528; People v. Winters, 93 Cal. 277. 44 People v. Martin, 32 Cal. 91; People v. Padillia, 42 Cal. 539; People v. Teeherow, 40 Cal. 286. 45 People v. Yorke, 9 Cal. 421; People v. Roach, 48 Cal. 382. 4f> People v. Crowley, 100 Cal. 478. 472 CRIMINAL LAW AND PROCEDURE. way connected with the crime of which he was accused. 47 The order granting a new trial will not be reversed on appeal for an abuse of discretion by the trial court. 48 CONFLICTING EVIDENCE. Where the evidence in the case is conflicting, it presents a question for the jury, 49 and a verdict will not be disturbed on appeal. 60 It is only when there is a clear failure of proof upon some material point, 51 or it is manifest from the testimony that the verdict was the result of great excite- ment which prevented a fair and just trial, 52 or the evi- dence preponderates so greatly against the verdict as to render it clear that the jury must have acted People v. Wong Ah You, 67 Cal. 31. 8 People v. Lum Yit, 83 Cal. 130; People v. Flood, 102 Cal. 333; People v. Knutte, 111 Cal. 455. People v. Cole, 127 Cal. 545. so People v. Estrada, 53 Cal. 600; People v. Lowen, 169 381; People v. Ah Ti, 9 Cal. 17; People v. Vance, 21 Cal. 400; People v. Durrant, 116 Cal. 201; People v. Emerson, 130 Cal. 562; People v. Brown, 130 Cal. 591; People v. O'Brien, 130 Cal. 1; People v. Dice, 120 Cal. 189; People v. Kaiser, 119 Cal. 456; People v. Holmes, 118 Cal. 444; People v. Brittan, 118 Cal. 409; People v. Neary, 104 Cal. 373; People v. Fice, 97 Cal. 459; People v. Arthur, 93 Cal. 536; People v. Lewis, l^t Cal. 551; People v. Phelan, 123 Cal. 551; People v. Bezy, 73 Cal. 186; People v. Brady, 72 Cal. 490; People v. Gill, 45 Cal. 285; People v. Doane, 77 Cal. 560; People v. Appleton, 120 Cal. 250; People v. Wilson, 119 Cal. 384; People v. Forsythe, 65 Cal. 101; People v. Geiger, 116 Cal. 440; People v. Kloss, 115 Cal. 567; People v. Un Dong, 106 Cal. 83; People v. Brooks, 90 Cal. 174; People v. Dunne, 80 Cal. 34; People v. Leyshon, 108 Cal. 440; People v. Roemer, 114 Cal. 51; People v. Rushing, 130 Cal. 449; People v. Swalm, 80 Cal. 49; People v. Brown, 27 Cal. 500; People v. Keeley, 81 Cal. 210; People v. Ross, 115 Cal. 233; People v. Chun Heong, 86 Cal. 329; People v. Lon Yeck, 123 Cal. 246; People v. Benc, 130 Cal. 159; People v. Sears, 119 Cal. 267; People v. Ryan, 108 Cal. 581; People v. Fitchpatrick, 106 Cal. 286; People v. Bidleman, 104 Cal. 608; People v. Hong Quin Moon, 92 Cal. 41; People v. McCurdy, 68 Cal. 576; People v. Simpson, 50 Cal. 304; People v. Bird, 60 Cal. *7; People v. Soap, 127 Cal. 408; People v. Lee, 119 Cal. 84; People v. Scott, 121 Cal. 101. BI People v. Smallman, 55 Cal. 185; People v. Kuches, 120 Cal. 569. 02 People v. Acosta, 10 Cal. 196. APPEAL. 473 under the influence of passion or prejudice, 511 that the appellate court will interfere and disturb the verdict. A verdict based on conflicting evidence will not be disturbed, notwithstanding some of the circumstances forming a part of the res gestae are unusual. 54 But the rule applicable to conflicting evidence does not prevent a review of the facts where the evidence, if taken as true, does not establish an offense. 55 This rule is founded on the fact that the jury had the opportunity to observe the demeanor of the wit- nesses and is therefore more competent than the appellate court to decide upon their credibility. The rule is a most salutary one and ought not to be lightly departed from. Nevertheless, there are exceptional cases in which the pre- ponderance of evidence against the verdict is so great as to produce a conviction, that in rendering it the jury must have been under the influence of passion or prejudice. 56 INSUFFICIENCY OF EVIDENCE. The rule for insufficiency of evidence is the same as that for conflicting evidence, and the verdict will not be dis- turbed except where there .is a failure of proof in some par- ticular necessary to a conviction, and the question is one of law and not of fact. 57 The sufficiency of evidence is a question for the jury. 38 On appeal the court will not deal with a question of mere preponderance of the evidence. 69 This is a question for the trial court, and if that court is satisfied from a review of the evidence that it is not suf- ficient, it should grant a new trial."" Where the verdict " People v. Manning, 48 Cal. 335; People v. Durrant, 116 Cal. 201; People v. Wong Cheng Suey, 110 Cal. 121; People v. Ah Loy, 10 Cal. 301; People v. Brown, 27 Cal. 501. People v. Logan, 123 Cal. 414. 68 People v. O'Brien, 106 Cal. 104. People v. Hamilton, 46 Cal. 543. 5" People v. Darr, 61 Cal. 554; People v. Eagan, 116 Cal. 291; People v. Hurley, 60 Cal. 74; People v. Durrant, 116 Cal. 201. ss People v. Nelscn, 85 Cal. 422: People v. Mayes, 66 Cal. 597. so People v. Ashnauer, 47 Cal. 94. eo People v. Lum Yit, 83 Cal. 134; People v. Flood, 102 Cal. 333; People v. Knutte, 111 Cal. 456. 474 CRIMINAL LAW AND PROCEDURE. of the jury is based upon legal evidence, it is absolutely final on appeal and not subject to review.* 1 If the evidence tends in any way to sustain the verdict 02 or preponderates in favor of it, the verdict will not be disturbed. 03 OBJECTIONS TO THE ADMISSION OF EVIDENCE. Errors in ruling on evidence will not be considered on appeal without the objections thereto are stated. 64 If no objections are made in the court below, errors in the admis- sion or rejection of evidence will not be reviewed 05 as objections cannot be made for the first time in the Supreme Court. 00 They must be taken in the court below. 07 A failure to object is a waiver of its incompetency. 08 There must be an objection, a decision and an exception. 09 The objection must be made at the time the evidence is offered. 70 Where evidence is admitted without objection, the party has no right to have it striken out. 71 Objection to the weight of evidence does not render it inadmissible. 72 Informal objections will not be considered, 73 but objection is sufficient when it is understood by all the parties. 7 * Errors on admission of immaterial evidence are not revers- ible when not prejudicial. 75 The exception must be taken at the time of the objection and ruling. 76 It must be made 6i People v. Maroney, 109 Cal. 277. 2 People v. Wilson, 66 Cal. 370. 63 People v. Alsemi, 85 Cal. 434. e* People v. Gioson, 106 Cal. 458; People v. Woon Tuck Wo, 120 Cal. 298. 65 People v. Baird, 105 Cal. 126. 66 People v. Northey, 77 Cal. 620. <" People v. Keeley, 81 Cal. 210. 68 People v. Smith, 121 Cal. 355. 6 People v. Sanford, 43 Cal. 29; People v. Westlake, 62 Cal. 309. People v. Salorse, 62 Cal. 139; People v. Moan, 65 Cal. 532. " People v. Patterson, 124 Cal. 102. ^ People v. Martin, 1Q2 Cal. 558; People v. Butler, 8 Cal. 440; People v. Brotherton, 47 Cal. 405. People v. Yee Fook Din, 106 Cal. 163; People v. Wong Chuey, 117 Cal. 624; People v. Shattuck, 109 Cal. 678; People v. Miller, 122 Cal. 84. People v. Shattuck, 109 Cal. 673. "5 People v. Fick, 89 Cal. 144. 76 People v. Coffman, 24 Cal. 230. APPEAL. 475 so as to leave no doubt as to the precise grounds for it. 77 A general objection to the admission of evidence is insuf- ficient, 78 and cannot be made specific on appeal ; 79 it must be specific. 80 The objection will be confined to the one taken at the trial. 81 But the court and prosecutor should be lib- eral in regard to objections of defendant and resolve a doubt in his favor. 82 A premature objection to a prelimin- ary question is properly overruled. 83 Evidence apparently irrelevant should have its purpose stated when offered. 84 But when not limited it may be used for any purpose for which it is competent. 83 The trial judge should be in- formed in some way as to the particular matters intended to be proved by the answer of the witness. 80 An objection and exception need only be taken once and are sufficient as to all such evidence. 87 It need not be repeated to every question, when the same line of evidence has been clearly and pointedly objected to several times. 88 Leading ques- tions are within the discretion of the trial court. 89 " People v. Owens, 123 Cal. 422; People v. Frank, 28 Cal. 519; People v. Mahoney, 77 Cal. 533; People v. Louie Foo, 112 Cal. 23. TS People v. Apple, 7 Cal. 290; People v. Glenn, 10 Cal. 37; People v. Chee Kee, 61 Cal. 405. 7o People v. Glenn, 10 Cal. 37; People v. Chee Kee, 61 Cal. 405. so People v. Nelson, 85 Cal. 421; People v. Mahoney, 77 Cal. 529; People v. Louie Foo, 112 Cal. 21; People v. Clark, 130 Cal. 642; People v. Conkling, 111 Cal. 616; People v. Sehorn, 116 Cal. 503; People v. Bush, 68 Cal. 623; People v. Hickman, 113 Cal. 88; People v. Frank, 28 Cal. 507; People v. Eckman, 72 Cal. 583; People v. Manning, 48 Cal. 335; People v. Chee Kee, 61 Cal. 405; Brumley v. Flint, 87 Cal. 474; People v. Rodley, 131 Cal. 240. si People v. Louie Foo, 112 Cal. 17; People v. Sehorn, 116 Cal. 510. 82 People v. Southern, 120 Cal. 645. 83 People v. Bidleman, 104 Cal. 608. 84 People v. Shaw, 111 Cal. 171. ss People v. Smith, 121 Cal. 355. se People v. Schell, 123 Cal. 360. ST People v. Castro, 125 Cal. 521. ss People v. Mullings, 83 Cal. 138. so People v. Brown, 130 Cal. 591; People v. Clary, 72 Cal. 59; People v. Shem Ah Fook, 64 Cal. 380; People T. Goldenson, 76 Cal. 349; People v. Fong Ah Sing, 70 Cal. 476 CRIMINAL LAW AND PROCEDURE. THE ORDER OF PROOF. The trial court has a reasonable discretion in determining the preliminaries of the trial, 90 and the order of proof. 91 ERRORS FAVORABLE TO THE DEFENDANT. Errors in ruling on evidence where the answers are favorable to the defendant are harmless and cannot be re- viewed on appeal. 1 Error in the exclusion of evidence is cured by its subsequent admission, 2 and in its admission by striking it out and instructing the jury to disregard it. 3 When already received without objection, it may be re- peated, 4 and the consent of the defendant to its admission where objection might have been made, renders its admis- sion proper. 5 Objection is waived by the defendant's sub- sequent testifying to the same fact, or his introduction of evidence to the same effect. 7 The error in the admis- sion of hearsay evidence is not cured by instruction to the jury that the defendant is not bound by anything said out of defendant's presence. 8 Where the evidence is unprejudi- cial the error should be disregarded. 9 A motion to strike out should not be allowed where the evidence is given oo People v. Stonecifer, 6 Cal. 405. si People v. Yokum, 118 Cal. 437; People v. Brotherton, 47 Cal, 388; People v. Jones, 123 Cal. 65; People v. Van Horn, 119 Cal. 323; Bates v. Tower, 103 Cal. 406; People v. Daniels, 105 Cal. 262; People v. Mayes, 113 Cal. 618; People v. Shainwood, 51 Cal. 468; People v. Teixeira, 123 Cal. 297. 1 People v. Barney, 114 Cal. 554; People v. Donaldson, 70 Cal. 116; People v. Chin Hane, 108 Cal. 597; People v. Clark, 106 Cal. 32; People v. Brown, 76 Cal. 574; People v. Mailings, 83 Cal. 146. 2 People v, Ross, 115 Cal. 233; People v. Howard, 112 Cal. 135; People v. Johnson, 106 Cal. 289; People v. Plyler, 126 Cal. 379; People v. Wong Chuey, 117 Cal. 624; People v. Phelan, 123 Cal. 551. 3 People v. Sears, 119 Cal. 267; People v. Hoy Yen, 34 Cal. 176. 4 People v. Chin Hane, 108 Cal. 597. 5 People v. Ah Ton, 53 Cal. 741. People v. Marseiler, 70 Cal. 98. i People v. Daniels, 70 Cal. 521; People v. Ketchum, 73 Cal. 638. * People v. Wallace, 89 Cal. 158. People v. Collins, 75 Cal. 411. APPEAL. 477 without objection. 10 Where no objection is made to the evidence it is within the discretion of the court afterwards to strike it out. 11 But this rule does not apply to answers which are not responsive to the question. They must be stricken out on motion whether objected to or not. 12 The court may reject evidence on its own motion if improper, 12 * or where the answer could not have been anticipated by objection. 13 But usually the motion to strike out must be preceded by objection to its admission. 14 irrelevant state- ments by a witness may be stricken out. The remedy is not by cross-examination. 15 10 People v. Long, 43 Cal. 444; People v. Kolfe, 61 Cal. 542; People v. Salorse, 62 Cal. 145; People v. bamario, 84 Cal. 484; People v. Nelson, 85 Cal. 426. 11 People v. Wallace, 89 Cal. 159. 12 People v. Dixon, 94 Cal. 255; In re Wax, 106 Cal. 347. i2a People v. Wallace, 89 Cal. 158; People v. Turcott, 65 Cal. 126; Spottiswood v. Weir, 80 Cal. 451. is People v. Williams, 127 Cal. 212. i* People v. Rolfe, 61 Cal. 541; People v. Nelson, 85 Cal. 426; Estate of Wax, 106 Cal. 347; People v. Samario, 84 Cal. 485. is People v. French, 95 Cal. 371. CHAPTER LXV. HABBAS CORPUS. OFFICE OF THE WRIT. A writ of habeas corpus will not be granted to a person who is not actually imprisoned. If he is released on bail he is not restrained of his liberty and the writ will not lie. 1 It is a remedy for unlawful imprisonment, but not imprison- ment unlawful because of erroneous process. 2 Its func- tions extend only to an inquiry into the jurisdiction and the validity of the process upon its face. 3 It may extend to the question whether the complaint charges an offense known to the law, since this objection goes to the juris- diction, 4 or as to whether the imprisonment is authorized by the law under which the prisoner was sentenced. 8 ' If the acts of which the defendant was convicted do not con- stitute a crime, the conviction is void. 6 The judgment will not be reviewed when the court acts within its jurisdiction. 1 1 Ex parte Jones, 41 Cal. 209. 2 Ex parte McCullough, 35 Cal. 97. 3 Ex parte McLaughlin, 41 Cal. 211; Ex parte Hartman, 44 Cal. 35; Ex parte Granice, 51 Cal. 376; Ex parte Miller, 82 Cal. 455; Ex parte Cohn, 55 Cal. 196; Ex parte Long, 114 Cal. 159; Ex parte Sternes, 77 Cal. 156. * Ex parte Williams, 121 Cal. 330; Ex par.e Maier, 103 Cal. 476. 5 Ex parte Sylvester, 81 Cal. 199. s Ex parte Kearney, 55 Cal. 212; Ex parte Maguire, 57 Cal. 609; Ex parte Hollis, 59 Cal. 407; Ex parte Foley, 62 Cal. 509; In re Kowalsky, 73 Cal. 122; Ex parte Hen- shaw, 73 Cal. 508; Ex parte Mirande, '16 Cal. 371; Ex parte McNulty, 77 Cal. 166; Ex parte Ah Men, 77 Cal. 201; Ex parte Acock, 84 Cal. 54; Ex parte Noble, 96 Cal. 364; Ex parte Maier, 103 Cal. 479; In re Corryell, 22 Cal. 178. 7 Ex parte Perkins, 18 Cal. 60. HABEAS CORPUS. 479 The inquiry is only to the jurisdiction of the court, and will not reach mere errors or irregularities not touching the jurisdiction. 8 It was not framed to retry issues of fact, or to review the proceedings of a legal trial. 9 Hence, mere errors and irregularities cannot be reviewed. 10 It does not lie for any defective statement of the offense, 11 to review the sufficiency of the evidence to sustain the conviction, 12 nor for a failure to state an offense if the complaint is not made a part of the record. 13 A prima facie case is all that is necessary to show in order to defeat the discharge of the prisoner. 14 The judgment is not void and the imprisonment will not be inquired into by the writ, if it appears from the judgment that the court had jurisdiction and the defendant was convicted. 15 An illegality which will be reviewed must be such an illegality as is contrary to the principles of law as dis- tinguished from rules of procedure. 16 Thus findings of fact passed on by the lower court cannot be reviewed, 17 s Ex parte Ah Men, 77 Cal. 198; Ex parte Fil Ki, 79 Cal. 584. 9 Ex parte Bird, 19 Cal. 130; Ex parte Cottrell, 59 Cal. 422; Ex parte Lehmkuhl, 72 Cal. 54; Ex parte Long, 114 Cal. 161. 10 Ex parte Hartman, 44 Cal. 32; Ex parte Conn, 55 Cal. 197; Ex parte McLaughlin, 41 Cal. 211; Ex parte Turner, 75 Cal. 228; Ex parte Stephen, 114 Cal. 283; Ex parte Ah Sam, 83 Cal. 620; Ex parte Sternes, 77 Cal. 156; Ex parte Long, 114 Cal. 161; Ex parte Lehmkuhl, 72 Cal. 53; Ex parte Mirande, 73 Cal. 365; Ex parte Smith, 89 Cal. 79; Ex parte Raye, 63 Cal. 492; Ex parte Young Ah Gow, 73 Cal. 442; Ex parte Kelly, 120 Cal. 273; Ex parte Max, 44 Cal. 579; Ex parte Bowen, *o Cal. 113; Ex parte Noble, 96 Cal. 362; Ex parte Walpole, 85 Cal. 362. 11 Ex parte Williams, :21 Cal. 329; Ex parte McNulty, 77 Cal. 164. 12 Ex parte Williams, 87 Cal. 78. is Ex parte Rosenheim, 83 Cal. 388. i* Ex parte Palmer, 86 Cal. 631. is Ex parte Gibson, 31 Cal. 620; Ex parte Raye, 63 Cal. 492. is Ex parte Gibson, 31 Cal. 620; Ex parte McCullough, 35 Cal. 101. IT Ex parte Clark, 110 Cal. 405; Ex parte Cottrell, 59 Cal. 420; Ex parte Sternes, 77 Cal. 163; Ex parte Noble, 96 Cal. 364. 480 CRIMINAL, LAW AND PROCEDURE. nor defect in the indictment, 18 nor irregularity in the com- mitment, 1 " nor the denial of a jury trial in cases where a jury may be waived 20 as in a trial in a justice court for misdemeanor.- 1 But it will review the denial of a jury trial in cases of felonies." It will lie to relieve a party convicted under a void law, 1 ' 3 but where the complaint states a violation of two laws and the penalty is not in excess of either, the prisoner will not be discharged where one of the acts is void. 24 If the sentence is illegal in part, the writ will not lie to discharge the prisoner before the legal part is satisfied, 25 but punishment in excess of that allowed by law is void and the writ will lie. 26 It will also authorize the release of a person arrested upon a present- ment by a grand jury for a misdemeanor.- 7 Judgments on contempt are reviewable on habeas corpus, 28 but not where the question is whether the judgment was warranted by the evidence. Disobedience of an order which the court had no jurisdiction to make it not contempt and habeas corpus will lie to release the prisoner. 20 If the judgment shows jurisdiction on its face, the writ will not lie to inquire into the punishment any further than to see whether it shows what punishment the prisoner is to suffer. 30 The action of the court in recalling a remittitur cannot be collaterally attacked by habeas corpus. 31 It will lie to release a witness who has been unreasonably detained. And where a peti- tioner is held for extradition, the court will inquire by is in re Kowalsky, 73 Cal. 120. is Ex parte Granice, 51 Cal. 375; Ex parte Keil, 85 Cal. 309. 20 in re Fife, 110 Cal. 8. 21 Ex parte Miller, 82 Cal. 454. 22 Ex parte Wong You Ting, 106 Cal. 296. 2-t Ex parte Keeney, 84 Cal. 304. . 2* Ex parte Taylor, 87 Cal. 91. 25 Ex parte Mitchell, 70 Cal. 1. 26 Ex parte Bulger, 60 Cal. 438. 27 In re Grcsbois, 109 Cal. 445. 28 Ex parte Rowe, 7 Cal. 181; Ware v. Robinson, 9 Cal. Ill; People v. O'Neil, 47 Cal. 110; Ex parte Hollis, 59 Cal. 408; Huerstal v. Muir, 62 Cal. 481. 20 EX parte Tinkum, 54 Cal. 201. " Ex parte Murray, 43 Cal. 455. 31 Ex parte Gallagher, 101 Cal. 113. HABEAS CORPUS. 481 habeas corpus whether the complaint states an offense under the laws of the demanding state. 32 The court will not discharge the petitioner when it appears he is guilty of an offense until the time is allowed for a legal arrest where he is held under a void commitment. 83 The writ will not justify a discharge for a defective commitment. 34 A defective commitment does not authorize a discharge, if it appears that the order endorsed on the depositions is cor- rect, and no allegations by way of traverse returned that a sufficient order was not so endorsed. 35 A certified copy of the judgment, properly entered, is sufficient authority to detain the prisoner and the court will give a reasonable time to obtain a certified copy thereof before ordering his dis- charge, if it appears that it can be procured. 30 Where the defendant is convicted of a misdemeanor and imprisoned in the state prison he will be released on habeas corpus. 37 All the presumptions are in favor of the regularity of the judgment under which the petitioner is held. 38 The judg- ment is conclusive and the sufficiency of the evidence cannot be inquired into; 39 so are the recitals of the jurisdictional facts. 40 The burden is on the petitioner to show the re- straint apparently legal is not so, and allegations are taken most strongly against the pleader. 41 But where no legal right to detain the petitioner is claimed, habeas 'corpus will discharge him. 42 No appeal will lie from a judgment on 32 EX parte Spears, 88 Cal. 640. 33 Ex parte Crandall, 2 Cal. 144. 34 Ex parte Bull, 42 Cal. 196; Ex parte Keil, 85 Cal. 310. SB Ex parte Estrado, 88 Cal. 316. so in matter of Ring, 28 Cal. 248; Ex parte Gibson, 31 Cal. 623; Matter of Brown, 32 Cal. 49; Ex parte Ahern, 103 Cal. 444. 37 Ex parte Ah Cha, 40 Cal. 426; Ex parte Turner, 75 Cal. 228. ss EX parte Morrison, 88 Cal. 113. 39 Ex parte Acock, 84 Cal. 50. 40 EX parte Sternes, 77 Cal. 156; Ex parte Stephen, 114 Cal. 280; Ex parte Ah Men, 77 Cal. 203; Latham v. Blake, 77 Cal. 649; De Pedrorena v. Superior Court, 80 Cal. 146; White v. Superior Court, 110 Cal. 65. 41 In re Clark, 125 Cal. 389. 42 Ex parte The Queen of the Bay, 1 Cal. 157. CRIMES--31 482 CRIMINAL LAW AND PROCEDURE. habeas corpus, 43 neither is it a bar to a further proceeding iipon another application before another tribunal, for the ' doctrine of res adfudicata does not apply. 44 The decision of the court refusing to discharge a prisoner is not a bar to another application before another judge or court. The prisoner has the right to exhaust the whole judicial power of the state. 45 Where the commitment is to the wrong officer, the petitioner will be remanded to the proper officer, but not discharged. An appeal from habeas corpus pro- ceedings in the federal courts upon a conviction in the state court operates as a stay in the state court. 49 The writ may be issued by the Supreme Court and returnable before a Superior Court which has the same authority un- der it as the Supreme Court has. 47 The state court, how- ever, has no authority to release from the state prison a prisoner held under federal process. 48 The writ will not issue out of the county except for good cause shown; such as absence, disability, or refusal of the local judge to act. 40 HABEAS CORPUS TO ADMIT TO BAIL. Application for habeas corpus to admit to bail will be denied where the evidence shows facts to warrant a verdict of murder an the first degree. Where new proofs are desired to be added, an application should be made to the Superior Court. 80 On habeas corpus to reduce bail after an indictment, the guilt of the defendant is assumed, 61 and to authorize an interference by the court upon habeas corpus, the bail demanded must be per se excessive. 52 People v. Schuster, 40 Cal. 627. 44 In re Perkins, 2 Cal. 424. 46 In matter of Ring, 28 Cal. 248. 46 Ex parte Edgar, 119 Cal. 123; In re Ebanks, 84 Fed. Rep. 313. 47 Ex parte Booker, 51 Cal. 317. 48 Ex parte Le Bur, 49 Cal. 159. 4 Ex parte Ellis, 11 Cal. 223. BO Ex parte Curtis, 92 Cal. 188. 5i Ex parte Duncan. 53 Cal. 41*; Ex parte Duncan, 54 Cal. 78. 62 In re Williams, 82 Cal. 183. HABEAS CORPUS. 483 COMMITMENT WITHOUT PROBABLE CAUSE. On application to be discharged upon the ground that the commitment of the magistrate was without probable cause, the petition must be verified and must set out all the evidence in such form that perjury may be assigned' thereon. 83 The facts stated must show an illegal impris- onment. 54 But where the commitment was without prob- able cause, the prisoner will be discharged on habeas cor- pus. 35 The probable cause of the commitment may be in- quired into by the writ. The district attorney in filing the information acts only in a ministerial capacity. 56 And for the purpose of determining whether probable cause appears for commitment, the question of whether depositions taken before the magistrate are sufficient, may be reviewed, and the depositions may be examined for that purpose. 57 63 Ex parte Buckley, 105 Cal. 123; Ex parte Walpole, 84 Cal. 584. 04 Ex parte Walpole, 84 Cal. 584. 85 In re Howell, 114 Cal. 250. Be Ex parte Sternes, 82 Cal. 245; Ex parte Nicholas, 91 Cal. 646. 8T People v. Smith, 1 Cal. 9; Ex parte Cottrell, G3 Cal. 422; Ex parte Sternes, 82 Cal. 247. CHAPTER LXVI. BXXRADITION. FUGITIVES FROM JUSTICE. The obligation of the federal statute that a fugitive from justice from one state shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime, is an absolute right and duty and no longer a matter of mere comity between the states. 1 But the provision for the arrest and detention of such fugitives before the requisition has arrived, is upon principles of comity Only. 2 Where the surrender is for a crime not specified in a treaty, it will be presumed it was within the exercise of sovereign discretion as an act of comity. 3 The power to issue the warrant for the apprehension of a fugitive from justice de- pends upon the following facts : ( i ) That the person is charged in some state or territory of the United States with any treason, felony or other crime 5(2) that he has fled from justice; (3) that he is fovmd in this state; and (4) that the executive authority of the state or territory from which he fled, has demanded his delivery, to be removed to the territory having jurisdiction of the crime. 4 Any illegal means used to effect this purpose does not impair the juris- diction of the court to try for an offense committed within its jurisdiction, 5 but the trial should be for the crime on 1 In Matter of Romaine, 23 Cal. 591. 2 Ex parte Rosenblat, 51 Cal. 285. s Ex parte Foss, 102 Cal. 347. * In matter of Romaine, 23 Cal. 591. s People v. Pratt, 78 Cal. 345. EXTRADITION. 486 which the extradition is based only. 6 When, however, the indictment is set aside another may be filed for the same offense. 7 An affidavit is not sufficient if it is made merely on information and belief. 8 The recitals in the warrant of arrest will be taken as true, on habeas corpus, if not disputed. 9 The cause of imprisonment may be in- quired into by habeas corpus and a refusal to deliver, as commanded in the writ, is a contempt of court. 10 The governor of this state has no power to surrender a fugitive unless judicial proceedings have been commenced against the prisoner in the state where the crime was committed ; he cannot be even arrested without such proceedings hav- ing been begun, 11 but a fugitive from justice, who has fled from another state, before a demand for his surrender by the executive authority of the state from which he fled, may be arrested and detained for a reasonable time to afford an opportunity for such demand. 12 The proceedings under the statute in relation to the arrest and detention, are required to be similar to those against the person charged with crime committed in this state, and the war- rant must specify the offense alleged to have been com- mitted by the accused. 13 e People v. Gray, 66 Cal. 271. 7 Ex parte Foss, 102 Cal. 347. s Ex parte Spears, 88 Cal. 640. Ex parte Lewis, 79 Cal. 96. 10 In re Robb, 64 Cal. 431; Ex parte Sternes, 77 Cal. 163. 11 Ex parte White, 49 Cal. 433. 12 Ex parte Cubreth, 49 Cal. 436; Ex parte White, 49 Cal. 433. Ex parte Cubreth; 49 Cal. 436. THE PENAL CODE OF CALIFORN IA ANNOUNCEMENT. In the publication of the Penal Code we have undoubt- edly changed the law of this state not the law as enacted by the legislature, but as furnished to the public by law book publishers. It was not originally intended to insert the Penal Code in this volume, but a number of lawyers who knew we were printing a work on criminal law in California insisted that it would not be complete without the code, especially in view of the dilapidated condition in which the Supreme Court in its decision on the Commission- ers' amendments to the codes had put all existing publica- tions of that code. Hence as the work was supposed to be purely mechanical, we turned over to the compositors a pony edition of the Penal Code issued in 1897 by a San Francisco publishing house with our own subsequent slips for copy, and then started to read the proofs by Pomeroy's Codes of 1901; when, behold, they did not agree! Then we turned to the original laws and found they were both incorrect. Many of the errors are of minor importance and perhaps immaterial. But punctuation seems to have been at the mercy of the whims of the printer and proof- reader without any regard to the law as originally issued by the state. For instance, what was originally " keybit," in section 466 had become " key, bit ; " while in section 369 the words " railroad, car " have gone the other way, and now in all the publications in general use appear as " rail- road car." Amongst the material changes in the reading may be mentioned section 627, by which the legislature of 1897 (Statutes, p. 92) made it a misdemeanor for any com- mon carrier to transport certain game " except for purposes of propagation,'' but none of the aforesaid publications contain the exception, although they all publish the section as law. We have omitted it because the statutes of 1901 (p. 821) say it "is hereby amended to read as follows:" In some of the publications referred to, " person " has been changed to " woman," (sec. 275) ; " offense " to " defense," (sec. 952) ; " broker " to " banker," (sec. 536) ; " or quiet " is omitted, (sec. 415) ; " made " inserted, (sec. 536) ; while " of," " in," " a " and " the," and small words of that kind seem to have been irrelevant, incompetent and immaterial in the eyes of the aforesaid printers and proof readers. And when the grammatical construction seemed faulty there was no hesitation in fixing it. Suffice it to say that we went to the Penal Code issued from the state printing office in 1872 and published under an authority from the legislature, (Statutes 1872-3, p. 481) and under the supervision of the Code Commission, and certified by the members of the commission to be correct, and then took all the amendments of the legislature since as published by the state printing office, and read the afore- said proofs. We laid aside all " style " of a printing office and followed the copy in all respects except in capitaliza- tion, which we opine can make no difference in the law. We have followed the typographical errors of no one else, and all that are herein are our own. In some cases we have italicized words to show that we followed the copy, and if a typographical error is not ours. The citations are those taken from the California Code Citations issued by us. A new and complete index has been prepared by Mr. Fairall, and knowing the care, labor and ability bestowed upon the portion of this book preceding this explanation, we confidently submit this book to the bench, bar and people of the state of California with no fear or trepidation. THE PUBLISHERS. Los ANGELES, March 15, 1902. AN ACT TO ESTABLISH A PENAL CO13E. [Approved February 14, 1872.] The People of the State of California, represented in Senate and Assembly, do enact as follows: TITLE OF THE ACT. 1. This act shall be known as the Penal Code of California, and is divided into three parts, as follows: 1. Of Crimes and Punishments. II. Of Criminal Procedure. III. Of the State Prison and County Jails. PRELIMINARY PROVISIONS. Sec. 2. When this act takes effect. 3. Not retroactive. 4. Construction of the Penal Code. 5. Provisions similar to existing laws, how construed. 6. Effect of code upon past offenses. 7. Certain terms defined in the senses in which they are used in this code. 8. What intent to defraud is sufficient. 9. Civil remedies preserved. 10. Proceedings to impeach or remove officers and others preserved. 11. Authority of courts-martial preserved. Courts of justice to punish for contempts. 12. Of sections declaring crimes punishable. Duty of court. 13. Punishments, how determined. 14. Witness' testimony may be read against him on prosecution for perjury. 15. "Crime" and "public offense" defined. 16. Crimes, how divided. 17. Felony and misdemeanor defined. 18. Punishment of felony, when not otherwise prescribed. 19. Punishment of misdemeanor, when not otherwise prescribed. 20. To constitute crime there must be unity of act and intent. 21. Intent, how manifested, and who considered of sound mind. 22. Drunkenness no excuse for crime. When it may be considered. 23. Certain statutes specified as continuing in force. 24. This act, how cited. When this act takes effect. 2. This code takes effect at twelve o'clock, noon, on the first day of January, eighteen hundred and seventy-three. Not retroactive. 3. No part of it is retroactive, unless expressly so declared. 106 Cal. 680. Construction of the Penal Code. 4. The rule of the common law, that penal statutes are to b strictly construed, has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice. 46 Cal. 116; 49 Cal. 70; 82 Cal. 274; 88 Cal. 139; 93 Cal. 584; 98 Cal. 631; 105 Cal. 558; 12? Cal. 316. 5-7 PENAL CODE. 492 Provisions similar to existing laws, how construed. 5. The provisions of this code, so far as they are substan- tially the same as existing statutes, must be construed as con- tinuations thereof, and not as new enactments. Effect of Code upon past offenses. 6. No act or omission, commenced after twelve o'clock noon of the day on which this code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this code, or by some of the statutes which it specifies as continuing in force and as not affected by its provisions, or by some ordinance, municipal, county, or township regulation, passed or adopted, under such statutes and in force when this code takes effect. Any act or omission commenced prior to that time may be inquired of, prosecuted, and punished in the same manner as if this code had not been passed. 46 Cal. 116; 55 Cal. 229. Certain terms defined in the senses in which they are used in this Code. 7. Words used in this code in the present tense include the future as well as the present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word "person" includes a corporation as well as a natural person; writing includes printing; oath includes affirmation or declar- ation; and every mode of oral statement under oath or affir- mation is embraced by the term "testily," and every written one in the term "depose"; signature or subscription includes mark, when the person can [not] write;, his name being written near it, and witnessed by a person who writes his own name as a witness. The following words, also, have in this code the signification attached to them in this section, unless otherwise apparent from the context: One The word "wilfully," when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage. Two The words "neglect," "negligence," "negligent," and "negligently," import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns. Three The word "corruptly" imports a wrongful design to acquire or cause some pecuniary or other advantage to the person guilty of the act or omission referred to, or to some other person. Four The words "malice" and maliciously" import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law. Five The word "knowingly" imports only a knowledge that the facts exist which bring the act or omission within the pro- visions of this code. It does not require any knowledge of the unlawfulness of such act or omission. Six The word "bribe" signifies anything of value or advan- tage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to 493 PRELIMINARY PROVISIONS. 8-9 1 influence, unlawfully, the person to whom it is given, in his action, vote, or opinion, in any public or official capacity. Seven The word "vessel," when used with reference to shipping, includes ships of all kinds, steamboats, canals, boats, barges, and every structure adapted to be navigated from place t place for the transportation of merchandise or persons. Eight The word "peace officer" signifies any one of the officers mentioned in section eight hundred and seventeen of this code. Nine The word "magistrate" signifies any one of the offi- ce rs mentioned in section eight hundred and eight of this code. Ten The word "property" includes both real and personal property. Eleven The words "real property" are coextensive with lands, tenements, and hereditaments. Twelve The words "personal property" include money, goods, chattels, things in action, and evidences of debt. Thirteen The word "month" means a calendar month, unless otherwise expressed. Fourteen The word "will" includes codicils. Fifteen The word "writ" signifies an order or precept in writing, issued in the name of the people, or of a court or judicial officer, and the word "process" a writ or summons issued in the course of judicial proceedings. Sixteen Words and phrases must be construed according t'o the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning. Seventeen Words giving a joint authority to three or more public officers or other persons, are construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority. Eighteen When the seal of a court or public officer is required by law, to be affixed to any paper, the word "seal" includes an impression of such seal upon the paper alone, or upon any substance attached to the paper capable of receiving a visible impression. The seal of a private person may be made in like manner, or by the scroll of a pen, or by writing the word "seal" against his name. Nineteen The word "state," when applied to the different parts of the United States, includes the District of Columbia and the territories, and the words "United States" may include the district and territories. [Approved March 30, 1874; Amend- ments 1873-4, p. 419. In effect July 1, 1874.] 58 Cal. 269; 67 Cal. 422; 68 Cal. 363; 68 Cal. 438; 70 Cal. 533; 72 Cal. 616; 75 Cal. 631; 82 Cal. 468; 93 Cal. 566; 96 Cal. 177; 105 Cal. 639; 110 Cal. 371; 120 Cal. 135; 120 Cal. 202; 127 Cal. 319; 129 Cal. 551; 130 Cal. 577. What intent to defraud is sufficient. 8. Whenever, by any of the provisions of this code, an intent to defraud is required in order to constitute any offense, it is sufficient if an intent appears to defraud any person, association, or body politic or corporate, whatever. Civil remedies preserved. 9. The omission to specify or affirm in this code any liability to damages, penalty, forfeiture, or other remedy imposed by 10-15 PENAL CODE. 494 law and allowed to be recovered or enforced in any civil action or proceeding, for any act or omission declared punishable herein, does not affect any right to recover or enforce the same. Proceedings to impeach or remove officers and others preserved. 10. The omission to specify or affirm in this code any ground of forfeiture of a public office, or other trust or special authority conferred by law, or any power conferred by law to Impeach, remove, depose, or suspend any .public officer or other person holding any trust, appointment, or other special authority con- ferred by law, does not affect such forfeiture or power, or any proceeding authorized by law to carry Into effect such impeach- ment, removal, deposition, or suspension. Authority of courts-martial preserved. 11. This code does not affect any power conferred by law upon any courtmartial, or other military authority or officer, to impose or Inflict punishment upon offenders; nor any power conferred by law upon any public body, tribunal, or officer, to impose or inflict punishment for a contempt. 94 Cal. 333. Of sections declaring crimes punishable. Duty of court. 12. The several sections of this code which declare certain crimes to be punishable as therein mentioned devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed. 93 Cal. 640; 110 Cal. 654. Punishments, how determined. 13. Whenever in this code the punishment for a crime is left undetermined between certain limits, the punishment to be Inflicted in a particular case must be determined by the court authorized to pass sentence, within such limits as may be pre- scribed by this code. Witness' testimony may be read against him on prosecution for perjury. 14. The various sections of this code which declare that evidence obtained upon the examination of a person as a wit- ness cannot be received against him in any criminal proceeding, do not forbid such evidence being proved against such person upon any proceedings founded upon a charge of perjury com mitted in such examination. "Crime" and "public offense" defined. 15. A crime or public offense is an act committed or omitted In violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punish- ments: 1. Death; 2. Imprisonment; 3. Fine; 4. Removal from office; or, 5. Disqualification to hold and enjoy any office of honor, trust, or profit in this state. 90 Cal. 278; 93 Cal. 439; 110 Cal. 656; 118 Cal. 460; 118 Cal. 482. 495 PRELIMINARY PROVISIONS. 16-28 Crimes, how divided. 16. Crimes are divided into: 1. Felonies; and, 2. Misdemeanors. 94 Cal. 574; 102 Cal. 428; 118 Cal. 4fiO. Felony and misdemeanor defined. 17. A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. [Amendments approved March 7, 1874; Amendments 1873-4, p. 455.1 49 'Cal. 395; 53 Cal. 428; 69 Cal. 605; 7S Cal 306; 85 Cal. 87; 94 Cal. 574. Punishment of felony, when not otherwise prescribed. 18. Except in cases where a different punishment is pre- scribed by this code, every offense declared to be a felony is punishable by imprisonment in the state prison, not exceeding five years. Punishment of misdemeanor when not otherwise prescribed. 19. Except in cases where a different punishment is pre- scribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or by both. 68 Cal. 413; 85 Cal. 37; 85 Cal. 211; 102 Cal. 429; 114 Cal. 282; 114 Cal. 371; 124 Cal. 152. To constitute crime there must be unity of act and intent. 20. In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence. 63 Cal. 168; 82 Cal. 520; 93 Cal. 566; 116 Cal 77; 129 Cal. 551. Intent, how manifested, and who considered of sound mind. 21. The intent or intention is manifested by the circum- stances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots nor lunatics, nor affected with insanity. 132 Cal. 329. Drunkenness no excuse for crime. When it may be considered. 22. No act committed by a person while in a state of volun- tary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was Intox- icated at the time, in determining the purpose, motive, or intent with which he committed the act. 65 Cal. 278; 93 Cal. 112; 93 Cal. 487; 95 Cal. 428 i 100 Cal. 390; 103 Cal. 575; 115 Cal. 577; 122 Cal. 239; 123 Cal. 49; 132 Cal. 332. Certain statutes specified as continuing in force. 23. Nothing in this code affects any of the provisions of the following statutes, but such statutes are recognized as con- tinuing in force, notwithstanding the provisions of the codes, 23-24 PENAL CODE. 49& except so far as they have been repealed or affected by sub- sequent iaws: 1. All acts incorporating or chartering municipal cor- porations, and acts amending or supplementing such acts. 2. All acts consolidating cities and counties, and acts amend- ing or supplementing! such acts. 3. All acts for fundkig the state debt, or any part thereof,, and for issuing state bonds, and acts amending or supplement- ing such acts. 4. All acts regulating and in relation to rhodeos. 5. All acts in relation to judges of the plains. 6. All acts creating or regulating boards of water com- missioners and overseers in the several townships or counties of the state. 7. All acts in relation to a branch state prison. 8. An act for the more effectual prevention of cruelty to animals, approved March thirtieth, eighteen hundred and sixty-eight. 9. An act for the suppression of Chinese houses of ill- fame, approved March thirty-first, eighteen hundred and sixty- six. 10. An act relating to the Home of the Inebriate of San Francisco, and to prescribe the powers and duties of the board of managers and the officers thereof, approved April first, eighteen hundred and seventy. 11. An act concerning marks and brands in the county of Siskiyou, approved March twentieth, eighteen hundred and sixty-six. 12. An act to prevent the destruction of fish in the waters of Bolinas bay, in Marin county, approved March thirty- first, eighteen hundred and sixty-six. 13. An act concerning trout in Siskiyou county, approved April second, eighteen hundred and sixty-six. 14. An act to prevent the destruction of fish in Napa river and Sonoma creek, approved January twenty-ninth, eighteen hundred and sixty-eight. 15. An act to prevent the destruction of fish and game in, upon, and around the waters of Lake Merritt or Peralta, in the county of Alameda, approved March eighteenth, eighteen hundred and seventy. 16. An act to regulate salmon fisheries in Eel river, in Humboldt county, approved April eighteenth, eighteen hun- dred and fifty-nine. 17. An act for the better protection of stock-raisers in the counties of Fresno, Tulare, Monterey, and Mariposa, approved March twentieth, eighteen hundred and sixty-six. 18. An act concerning oysters, approved April twenty-eighth, eighteen hundred and fifty-one. 19. An act concerning oyster-beds, approved April second, eighteen hundred and sixty-six. 20. An act concerning gas companies, approved April fourth, eighteen hundred and seventy. This act, how cited. 24. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as The Penal Code, adding, when necessary, the number of the section. 497 PERSONS LIABLE TO PUNISHMENT. 2G-2& PART I. OF CRIMES AND PUNISHMENTS. TITLE I. OP PERSONS LIABLE TO PUNISHMENT FOR CRIME. Sec. 26. Who arc canable of committing crimes. 27. Who are liifble to punishment. 28. Discharges from prisons to be on a Monday. Who are capable of committing crimes. 26. All persons are capable of committing crimes except those belonging to the following classes: One Children under the age of fourteen, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. Two Idiots. Three Lunatics and insane persons. Pour Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent. Five Persons who committed the act charged without being conscious thereof. Six Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence. Seven Married women (except for felonies) acting under the threats, command, or coercion of their husbands. Eight Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused. [Approved March 30, 1874; Amendments 1873-4, p. 422. In effect July 1, 1874.] 132 Cal. 339. Who are liable to punishment. 27. The following persons are liable to punishment under the laws of this state: 1. All persons who commit, in whole or in part, any crime within this state; 2. All who commit larceny or robbery out of this state, and bring to, or are found with the property stolen, in this state; 3. All who, being out of this state, cause or aid, advise or encourage, another, person to commit a crime within this state, and are afterwards found therein. 132) Cal. 232. Discharges from prisons to be on a Monday. 28. Every person now confined in or that may hereafter be committed to and confined in any penitentiary, prison, jail, house of detention, reform school, or other penal institution, by whatsoever name the same may now or hereafter be known in this state, under conviction for a penal offense, shall be dis- charged on a Monday, regardless of the day of the week upon which the term or time of confinement prescribed in the sen- CRIMES --32 30-37 PENAL CODE. 498 tence or terminated by credits or commutation would otherwise expire, unless the Monday upon or preceding the day in the &ame week upon which the sentence or commutation would otherwise expire shall fall upon or precede, within four days, a legal holiday, in which event, such person shall be discharged upon the first Monday preceding that, which will not be upon or be followed by a holiday within four days. [Stats. 1901, p. 11.] TITLE II. OF PARTIES TO CRIME. Sec. .",0. Classification of parties to crime. 31. Who are principals. 32. Who are accessories. 33. Punishment of accessories. Classification of parties to crime. 30. The parties to crimes are classified as: 1. Principals; and, 2. Accessories. Who are principals. 31. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its comnlission, and all persons counseling, advising, or encour- aging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed. 56 Cal. 398; 78 Cal. 86; 113 Cal. 179; 122 Cal. 492. Who are accessories. 32. All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and piotect the person charged with or convicted thereof, are accessories. 78 Cal. 87; 122 Cal. 187; 129 Cal. 368. Punishment of accessories. 33. Except in cases where a different punishment is prescribed, an accessory is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding two years, or by fine not exceeding five thousand dollars. TITLE III. OF OFFENSES AGAINST THE SOVEREIGNTY OF THE STATE. Sec. 37. Treason, who only can commit. 38. Mlsprision of treason. Treason, who only can commit. 37. Treason against this state consists only in levying war against it, adhering to its enemies, or giving them aid and comfort, and can be committed only by persons owing allegiance to the state. The punishment of treason shall be death. 499 CRIMES AGAINST ELECTIVE FRANCHISE. 38-42 Misprision of treason. 38. Misprision of treason is the knowledge and concealmsnt of treason, without otherwise assenting to or participating in the crime. It is punishable by imprisonment in the state prison for a term not exceeding five years. TITLE IV. OF CRIMES AGAINST THE ELECTIVE FRANCHISE. Sec. 40. Person acting as election officer without appointment. 41. Violation of election laws by certain officers a felony. 42. Fraudulent registration a felony. 43. Refusal to he sworn or to answer board of judges. 44. Refusal to obey summons of board. 45. Fraudulent voting. 46. Attempting to vote without being qualified. 47. Procuring illegal voting. 48. Changing ballots or altering returns by election officers. 49. Inspectors unfolding or marking tickets. "(>. Forging or altering returns. 51. Adding to or subtracting from votes given. 52. Persons aiding and abetting. 53. Intimidating, corrupting, deceiving, or defrauding electors. 54. Furnishing money, for elections. 55. Offers to procure offices for electors. rift. Communicating such offer. 57. Bribing members of legislative caucuses, etc. 58. Preventing public meetings. 50. Disturbance of public meetings. 60. Betting on elections. 01. Violation of election laws by persons not officers. 62. Violation of election laws as to tickets. 02n. Circulation of. anonymous circulars referring to political candidates. 62b. Printer must put imprint on printed matter. 63. Advancing money by candidate for U. S. senate. 63*. Candidate or member of legislature accepting money. 64. No prosecution against witness testifying in election cases. 64J. Primary elections, provisions relating to. Person acting as election officer without appointment. 40. Any person who acts as an election officer at any election, without first having been appointed and qualified as such, and any person who, not being an election officer, performs or dis- charges any of the duties of an election officer, in regard to the handling or counting or canvassing of any ballots cast at any election, shall be guilty of a felony, and on conviction be pun- ished by imprisonment in the state prison for not less than two nor more than seven years. [New section approved March 26, 1895; stats. 1895, p. 74. In effect March 26, 1895.] Violation of election laws by certain officers a felony. 41. Every person charged with the performance of any duty, under the provisions of any law of this state relating to elections, who wilfully neglects or refuses to perform it, or who, in his official capacity, knowingly and fraudulently acts in con- travention or violation of any of the provisions of such laws, is, unless a different punishment for such acts or omissions is prescribed by this code, punishable by fine not exceeding one thousand dollars, or by imprisonment in the state prison not exceeding five years, or by both. ?.-> Cal. 631. Fraudulent registration a felony. 42. Every person who wilfully cruises, procures, or allows him- self to be registered in the great register of any county, knowing himself not to be entitled to such registration, is punishable by 43-48 PENAL CODE. 500 fine not exceeding one thousand dollars, or by imprisonment in the county jail or state prison not exceeding one year, or by both. In all cases where, on the trial of a person charged with any offense under the provisions of this section, it appears in evidence that the accused stands registered in the great register of any county, without being qualified for such regis- tration, the court must order such registration to be canceled. Refusal to be sworn or to answer board of judges. 43. Every person who, after being required by the board of judges at any election, refuses to be sworn, or, being sworn, refuses to answer any pertinent question, propounded by such board, touching the right of another to vote, is guilty of a mis- demeanor. [Amendment approved March 30, 1874; amendments 1873-4, p. 423. In effect Jffly 1, 1874.] Refusal to obey summons of board. 44. Every person summoned to appear and testify before any board of registration, who wilfully disobeys such summons, is guilty of a misdemeanor. Fraudulent voting. 45. Every person not entitled to vote, who fraudulently votes, and every person who votes more than once at any one election, or knowingly hands in two or more tickets folded together, or changes any ballot after the same has been deposited in the ballot- box, or adds, or attempts to add, any ballot to those legally polled at any election, either by fraudulently introducing tne same into the ballot-box before or after the ballots therein have been count- ed; or adds to or mixes with, or attempts to add to or mix with, the ballots lawfully polled, other ballots, while the same are being counted or canvassed, or at any other time, with intent to change the result of such election; or carries away or destroys, or attempts to carry away or destroy, any poll list, or ballots, or ballot-box, for the purpose of breaking up or invalidating such election, or wilfully detains, mutilates, or destroys any election returns, or in any manner so interferes with the officers holding such election or conducting such canvass, or with the voters lawfully exercising their rights of votins; at suoh election, as to prevent such election or canvass from being fairly held and lawfully conducted, is guilty of felony. 91 Cal. 47. Attempting to vote without being qualified. 46. Every person not entitled to vote, who fraudulently attempts to vote, or who, being entitled to vote, attempts to vote more than once at any election, is guilty of a misdemeanor. Procuring illegal voting. 47. Every person who procures, aids, assists, counsels, or advises another to give or offer his vote at any election, knowing that the person is not qualified to vote, is guilty of a mis- demeanor. Changing ballots or altering returns by election officers. 48. Every officer or clerk of election who aids in changing or destroying any poll list, or in placing any ballots in the ballot box, or taking any therefrom, or adds, or attempts to add, any ballots to those legally polled at such election, either by fraudu- lently introducing the same into the ballot box before or after tho ballots therein have been counted, or adds to or mixes with, or attempts to add to or mix with the ballots polled any other 501 CRIMES AGAINST ELECTIVE FRANCHISE. 49-53 ballots, while the same are being counted or canvassed, or at any other time, with intent to change the result of such election, or allows another to do so, when in his power to prevent it, or carries away or destroys, or knowingly allows another to carry away or destroy any poll list, ballot box, or ballots law- fully polled, is punishable by imprisonment in the state prison for not less than two nor more than seven years. Inspectors unfolding or marking tickets. 49. Every inspector, judge, or clerk of an election, who, pre- vious to putting the ballot of an elector in the ballot box, attempts to find out any name on such ballot, or who opens or suffers the folded ballot of any elector which has been handed in to be opened or examined previous to putting the same into the ballot box, or who makes or pla-ces any mark or device on any folded ballot with the view to ascertain the name of any person for whom the elector has voted, or who, without the consent of the elector, discloses the name of any person which such inspector, judge, or clerk has fraudulently or illegally dis- covered to have been voted for by such elector, is punishable by fine, not less than fifty nor more than five hundred dollars. Forging or altering returns. 50. EVery person who forges or counterfeits returns of an election purporting to have been held at a precinct, town, or ward where no election was in fact held, or wilfully substitutes foYged or counterfeit returns of election in the place of the true returns, for a precinct, town, or ward where an election was actually held, is punishable 'by imprisonment in the state prison for a term not less than two nor more than ten years. Adding to or subtracting from votes given. 51 f Every person who wilfully adds to or subtracts from the votes actually cast at an election, in any returns, or who alters such returns, is punishable by imprisonment in the state prison for not less than one nor more than five years. Persons aiding and abetting. 52. Every person who aids or abets in the commission of any of the offenses mentioned in the four preceding sections, is pun- ishable by imprisonment in the county jail for the period of six months, or in the state prison not exceeding two years. [Ap- proved March 30, 1874; amendments 1873-4, p. 423. In effect July 1, 1874.] Intimidating, corrupting, deceiving, or defrauding electors. 53. Every person who, by force, threats, menaces, bribery, or any corrupt means, either directly or indirectly, attempts to influence any elector in giving his vote, or to deter him from giving the same; or attempts by any means whatever to awe, restrain, hinder, or disturb any elector in the exercise of the right of suffrage, or furnishes any elector wishing to vote, who cannot read, with a ticket, informing or giving such elector to understand that it contains a name, written or printed thereon, different from the name which is written or printed thereon, or defrauds any elector at any such election by deceiving and causing such elector to vote for a different person for any office than he intended or desired to vote for; or who, being inspector, judge, or clerk of any election, while acting as such, induces or attempts to induce any elector, either by menace or reward, or promise thereof, to vote differently from what such elector 54-59 PENAL CODE. 502 intended or desired to vote, is guilty of felony. [Amendment approved February 23, 1893; stats. 1893, p. 7.] Furnishing money for elections. 54. Every person who, with intent to promote the election of himself or any other person, either 1. Furnishes entertainment at his expense to any meeting of electors previous to or during an election; 2. Pays for, procures, or engages to pay for any such enter- tainment; 3. Furnishes or engages to pay or deliver any money or prop- erty for the purpose of procuring the attendance of voters at the polls, or for the purpose of compensating any person for procur- ing attendance of voters at the polls, except for the conveyance of voters who are sick or infirm; 4. Furnishes or engages to pay or deliver any money or prop- erty for any purpose intended to promote the election of any candidate, except for the expenses of holding and conducting public meetings for the discussion of public questions and of printing and circulating ballots, handbills, and other papers previous to such election; is guilty of a misdemeanor. Offers to procure offices for electors. 55. Every person who, being a candidate at any election, offers or agrees to appoint or procure the appointment of any particular person to office, as an inducement or consideration to any person to vote for, or procure or aid in procuring the election of such candidate, is guilty 'of a misdemeanor. Communicating such offer. 56. Every person, not being a candidate, who communicates any offer, made in violation of the last section, to any parson, with intent to induce him to vote for or to procure or aid in procuring the election of the candidate making the offer, is guilty of a misdemeanor. Bribing members of legislative caucuses, etc. 57. Every person who gives or offers a bribe to any officer or member of any legislative caucus, political convention, com- mittee, primary election, or political gathering of any kind, held for the purpose of nominating candidates for offices ot honor, trust, or profit, in this state, with intent to influence the person to whom such bribe is given or offered to be more favorable to one candidate than another, and every person, member of either of the bodies in this section mentioned, who receives or offers to receive any such bribe, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. 126 Cal. 352. Preventing public meetings. 58. Every person who, by threats, intimidations, or unlawful violence, wilfully hinders or prevents electors from assembling in public meeting for the consideration of public questions, is guilty of a misdemeanor. Disturbance of public meetings. 59. Every person who wilfully disturbs or breaks up any public meeting of electors or others, lawfully being held for the purpose of considering public questions, is guilty of a mis- demeanor. 503 CRIMES AGAINST ELECTIVE FRANCHISE. 60-63 Betting on elections. 60. Every person who makes, offers, or accepts any bet or wager upon the result of any election, or upon the success or failure of any person or candidate, or upon the number of votes to be cast, either in the aggregate or for any particular can- didate, or upon the vote to be cast by any person, is guilty of a misdemeanor. Violation of election laws by persons not officers. 61. Every person who wilfully violates any of the provisions of the laws of this state relating to elections is, unless a different punishment for such violation is prescribed by this code, pun- ishable by fine not exceeding one thousand dollars, or by imprisonment in the state prison not exceeding five years, or by both. Violation of election laws as to tickets. 62. Every person who prints any ticket not in conformity with section one thousand one hundred and ninety-one of the Political Code, or who circulates or gives to another any ticket, knowing at the time that such ticket does not conform to the provisions of section one thousand one hundred and ninety-one of the Political Code, is guilty of a misdemeanor. [New section ap- proved March 23, 1874; amendments 1873-4, p. 456. In effect in sixty days.] Circulation of anonymous circulars referring to political can- didates. 62a. Every person who intentionally writes, prints, posts, or distributes, or causes to be written, printed, posted, or distrib- uted, any circular, pamphlet, letter, or poster which is designed or intended to injure or defeat any candidate for nomination or election to any public office by reflecting upon his personal character or political action, unless there appears upon such circular, pamphlet, letter, or poster, in a conspicuous place, either the name of the chairman and secretary or the names of two officers at least of the political or other organization issu- ing the same, or the name and residence, with the street and number thereof, if any, of some voter of this state, and respon- sible therefor, shall be guilty of a misdemeanor. [Stats. 1901, p. 297.] Printer must put imprint on printed matter. 62b. Every person who prints any circular, pamphlet, letter, or poster of the kind or character mentioned in section sixty- two a of this code, without adding thereto his name/ showing the printing office at which the same was printed, is guilty of a misdemeanor. [Stats. 1901, p. 298.] Advancing money by candidate for United States Senate. 63. Every candidate for .United States senator at an approach- ing session of the legislature, and every person acting for or on behalf of any such candidate for senator in the congress of the United States at an approaching session of the legislature, who shall advance or give or loan, or promise to advance or give or loan, any money or property to any candidate for the legis- lature, before or after his nomination, or before or after his election, under an express or implied promise that such can- didate for the legislature (whether nominated or not, or before, or after his election) will support or vote for such candidate 4^ PENAL CODE. 504 for senator in the congress of the United States at an approach- ing session of the legislature, shall be deemed guilty of a felony. The advancing, giving, or loaning of money or property, or the promise to advance, give, or loan money or property to any can- didate for the legislature, by any candidate for senator as afore- said, or by any person for him, or on his behalf, as aforesaid, shall be deemed prima facie proof of an express or implied agreement that such candidate for the legislature will, if elected to the legislature, vote for such candidate for senator in con- gress | In effect 60 days from March 9, 1899; Stats, p. 83.] Candidate or member of legislature accepting money. 63%. Every person being a member-elect of the legislature, and every person being a candidate for the legislature, and every person being a candidate for nomination for the legislature, who shall accept any money or property from any candidate for sen- ator in the congress of the United States before the legislature at an approaching session thereof, or from any other person acting for or on behalf of any such candidate for senator in the congress of the United States at an approaching session of the legislature, under an express or implied promise that such mem- ber-elect of the legislature, or such candidate for the legislature, or candidate for nomination for the legislature, will, if elected as a member of the legislature, support or vote for any such candidate for senator in the congress of the United States for that office, shall be deemed guilty of a felony. The receipt of money or property by any member-elect of the legis- lature, and by. any candidate for the legislature, and by any candidate for nomination for the legislature, from any candidate before the legislature for senator in congress at an approaching session of the legislature as aforesaid, or from any person acting for or on behalf of any such candidate for senator in congress as aforesaid, shall be prima facie proof of an express or implied agreement that such member-elect of the legislature will vote for such candidate for senator as aforesaid, and that such candidate, or candidate for nomination for the legislature, will, if elected, vote for such candidate for senator as aforesaid. [In effect 60 days from March 9, 1899; stats., p. 84. | No prosecution against witness testifying in election cases. 64. No person, otherwise competent as a witness, shall be disqualified or excused from testifying concerning any of the offenses enumerated and prescribed in this title, on the ground that such testimony may criminate himself; but no prosecution can afterwards be had against such witness for any such offense concerning which he testified for the prosecution. [New section added March 20, 1891; stats. 1891, p. 185.] Primary elections, provisions relating to. 64%. All the provisions of sections forty to sixty-four of this code, both inclusive, shall apply with like force and effect to elections, known and designated as primary elections, held and conducted under official supervision pursuant to law and to registration therefor, as to other elections, whether the word "primary" be used in connection with the word "election" or "elections" used in said sections or not. fin effect at passage. Signed by governor March 20, 1899, deposited with secretary of state March 28, 1899. This is identical with another, being chapter LII of the statutes of 1899,, in effect March 4, 1899, but without any enacting clause. 1 505 CRIMES BY AND AGAINST EXECUTIVE POWER. 65-70 TITLE V. CRIMES BY AND AGAINST THE EXECUTIVE POWER OF THE STATE. Sec. 05. Acting in a public capacity without having qualified. 66. Acts of officers de facto not affected. 67. Giving or offering bribes to executive officers. 68. Asking or receiving bribes. O. Resisting ollioers. 70. Extortion. 71. Officers illegally interested in contracts. 7i!. Presenting fraudulent bills or claims for allowance or payment. ~:i. iJuying appointments to office. 7-f. Taking rewards for deputation. 7.1. Kxereising functions of office wrongfully. 7(j. Refusal to surrender books, etc.. to successor. 77. Sections to apply to administrative and ministerial officers. Acting in a public capacity without having qualified. 65. Every person who exercises any function of a public office without taking the oath of office, or without giving the required bond, is guilty of a misdemeanor. [Approved March 30, 1874; amendments 1873-4; p. 423. In effect July 1, 1874.] Acts of officers de facto not affected. 66. The last section shall not be construed to affect the validity of acts done by a person exercising the functions of a public office in fact, where other persons than himself are interested in maintaining the validity of such acts. Giving or offering bribes to executive officers. 67. Every person who gives or offers any bribe to any execu- tive officer of this state, with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer, is punishable by imprisonment in the state prison not less than one nor more than fourteen years, and is disqualified from holding any office in this state. 62 Cal. 493; 64 Cal. 162. Asking or receiving bribes. 68. Every executive officer, or person elected or appointed to an executive office, who asks, receives, or agrees to receive, any bribe, upon any agreement or understanding that his vote, opin- ion, or action upon any matter then pending, or which may be brought before him in his official capacity, shall be influenced thereby, is punishable by imprisonment in the state prison not less than one nor more than fourteen years: and, in addition thereto, forfeits his office, and is forever disqualified from holding any office in this state. 64 Cal. 158; 68 Cal. 550. Resisting officers. 69. Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the per- formance of his duty, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding five years. Extortion. 70. Every executive or ministerial officer who knowingly asks or receives any emolument, gratuity, or reward, or any promise thereof, excepting such as may be authorized by law, for doing any official act, is guilty of a misdemeanor. [Approved 71-77 PENAL CODE. 50& March 30, 1874; amendments 1873-4, p. 423. In effect July l r 1874.] 60 Cal. 117. Officers illegally interested in contracts. 71. Every officer or person prohibited by the laws of this state from making or being interested in contracts, or from becoming a vendor or purchaser at sales, or from purchasing scrip, or other evidences of indebtedness, who violates any of the provisions of such laws, is punishable by a fine- of not more than one thousand dollars, or by imprisonment in the state prison not more than five years, and is forever disqualified from holding any office in this state. 125 Cal. 122. Presenting fraudulent bills or claims for allowance or payment. 72. Every person who, with intent to defraud, presents for allowance or for "payment to any state board or officer, or to any county, town, city, ward, or village board or officer, author- ized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of felony. 71 Cal. 196. Buying appointments to office. 73. Every person who gives or offers any gratuity or reward, in consideration that he or any other person shall be appointed/ to any public office, or shall be permitted to exercise or dis- charge the duties thereof, is guilty of a misdemeanor. Taking rewards for deputation. 74. Every public officer who, for any gratuity or reward, appoints another person to a public office, or permits another person to exercise or discharge any of the duties of his office, is punishable by a fine not exceeding five thousand dollars, and, in addition thereto, forfeits his office and is forever disqualified from holding any office in this state. Exercising functions of office wrongfully. 75. Every person who wilfully and knowingly intrudes him- self into any public office to which he has not been elected or appointed, and every person who, having been an executive officer, wilfully exercises any of the functions of his office after his term has expired, and a successor has been elected or appointed and has qualified, is guilty of a misdemeanor. Refusal to surrender books, etc., to successor. 76. Every officer whose office is abolished by law, or who, after the expiration of the time for which he may be appointed or elected, or after he has resigned or been legally removed from office, wilfully and unlawfully withholds or detains from his successor, or other person entitled thereto, the records, papers, documents, or other writing appertaining or belonging to his office, or mutilates, destroys, or takes away the same, is pun- ishable by imprisonment in the state prison not less than one nor more than ten years. 103 Cal. 493. Sections to apply to administrative and ministerial officers. 77. The various provisions of this chapter apply to admin- istrative and ministerial officers, in the same manner as if they were mentioned therein. 507 CRIMES AGAINST LEGISL * HVE POWER. 81-86 TITLE VI. OF CRIMES AGAINST THE LEGISLATIVE POWER. Sec. 81. Preventing the meeting of the legislature. 82. Disturbing the legislature while in session. 83. Altering draft of bill or resolution. 84. Altering enrolled cnjiy of bill or resolution 85. Giving or offering bribes to members of the legislature. 86. Receiving bribes by members of the legislature. 87. Witnesses refusing to attend, etc., before the legislature. 88. Bribes by members of the legislature. 89. Lobbying. Preventing the meeting of the legislature. 81. Every person who wilfully, and by force or fraud, pre- vents the legislature of this state, or either of the houses com- posing it, or any of the members thereof, from meeting or organizing, is guilty of felony. Disturbing the legislature while in session. 82. Every person who wilfully disturbs the legis]ature of this state, or either of the houses composing it, while in session, or who commits any disorderly conduct in the immediate view and presence of either house, tending to interrupt its proceedings or impair the respect due to its authority, is guilty of a mis- demeanor. Altering craft of bill or resolution. 83. Every person who fraudulently alters the draft of any bill or resolution which has been presented to either of the houses composing the legislature, to be passed or adopted, with intent to procure it to be passed or adopted by either house, or certified by the presiding officer of either house, in language different from that intended by such house, is guilty of felony. Altering enrolled copy of bill or resolution. 84. Every person who fraudulently alters the enrolled copy of any bill or resolution which has been passed or adopted by the legislature of this state, with intent to procure it to be approved by the governor, or certified by the secretary of state, or printed or published by the printer of the statutes, in lan- guage different from that in which it was passed or adopted by the legislature, is guilty of felony. Giving or offering bribes to members of the legislature. 85. Every person who gives or offers to give a bribe to any member of the legislature, or to another person for him, or attempts by menace, deceit, suppression of truth, or any corrupt means, to influence a member in giving or withholding his vote, or in not attending the house or any committee of which he is a member, is. punishable by imprisonment in the state prison not less than one nor more than ten years. Receiving bribes by members of the legislature. 86. Every member of either of the houses composing the legislature of this state who asks, receives, or agrees to receive any bribe upon any understanding that his official vote, opinion, judgment, or action shall be influenced thereby, or shall be given in any particular manner, or upon any particular side of any question or matter upon which he may be required to act in his official capacity, or gives, or offers, or promises to give any official vote in consideration that another member of the legislature shall give any such vote, either upon the same or another question is punishable by imprisonment in the state 87-92 PENAL CODE. 508 prison not less than one nor more than fourteen years, and upon conviction thereof shall, ,m addition to said punishment, forfeit his office, be disfranchised, and forever disqualified from holding any office or public trust. [Amendment approved April 6, 1880; amendments 1880, p. 7. In effect April 6, 1880.] Witnesses refusing to attend, etc., before the legislature. 87. Every person who, being summoned to attend as witness before either house of the legislature or any committee thereof, refuses or neglects, without lawful excuse, to attend pursuant to such summons; and every person who, being present before either house of the legislature or any committee thereof, wilfully refuses to be sworn or to answer any material and proper question, or to produce, upon reasonable notice, any material and proper books, papers, or documents in his possession or under his control, is guilty of a misdemeanor. Bribes by members of the legislature. 88. Every member of the legislature convicted of any crime denned in this chapter, in addition to the punishment prescribed, forfeits his office and is forever disqualified from holding any office in this state. Lobbying. 89. Every person who obtains, or seeks to obtain money or other thing of value from another person, upon a pretense, claim, or representation that he can or will improperly influence in any manner the action of any member of a legislative body in regard to any vote or legislative matter, is guilty of a felony. Upon the trial no person otherwise competent as a witness shall be excused from testifying as such concerning the offense charged, on the grounds that such testimony may criminate himself, or subject him to public infamy, but such testimony shall not after- wards be used against him in any judicial proceeding except for perjury in giving such testimony. [Amendment approved April 6, 1880; amendments 1880, p. 7. In effect April 6, 1880.] TITLE Vn. OF CRIMES AGAINST PUBLIC JUSTICE. Chapter I. Bribery and Corruption. II. Rescue. III. Escapes and aiding therein. IV. Forging, stealing, mutilating, and falsifying judicial and public records and documents. V. Perjury and subornation of perjury. VI. Falsifying evidence. VII. Other offenses against public justice. VIII. Conspiracy. CHAPTER I. BRIBERY AND CORRUPTION. Sec. 92. Giving bribes to judges, jurors, referees, etc. 93. Receiving bribes by judicial officers, jurors, etc. 94. Extortion. 95. Improper attempts to influence jurors, referees, etc. 96. Misconduct of jurors, referees, etc. 97. Justice or constable purchasing judgment. 98. Officers convicted of, disfranchised. 99. Superintendent of printing, interest? in contracts, etc. 100. Superintendent of printing, collusion in furnishing materials. Giving bribes to judges, jurors, referees, etc. 92. Every person who gives or offers to give a bribe to any 509 BRIBERY AND CORRUPTION. 93-96 judicial officer, juror, referee, arbitrator, or umpire, or to any person who may be authorized by law to hear or determine any question or controversy, with intent to influence his vote, opinion, or decision upon any matter or question which is or may be brought before him for decision, is punishable by imprison- ment in the state prison not less than one nqr more than ten years. Receiving bribes by judicial officers, jurors, etc. 93. Every judicial officer, juror, referee, arbitrator, or umpire, and every person authorized by law to hear or determine any question or controversy, who asks, receives, or agrees to receive, any bribe, upon any agreement or understanding that his vote, opinion, or decision upon any matters or question which is or may be brought before him for decision, shall be influenced thereby, is punishable by imprisonment in the state prison not less than one nor more than ten years. 64! 'Cai. 436; 99 Cal. 328. Extortion. 94. Every judicial officer who asks or receives any emolu- ment, gratuity, or reward, or any promise thereof, except such as may be authorized by law, for doing any official act, is guilty of a misdemeanor. Every judicial officer who shall ask or receive the whole or any part of the fees allowed by law to any stenographer or reporter appointed by him, or any other person, to record the proceedings of any court or investigation held by him, shall be guilty of a misdemeanor, and upon conviction thereof shall forfeit his office. Any stenographer or reporter, appointed by any judicial officer in this state, who shall pay, or offer to pay, the whole or any part of the fees allowed him by law, for his appointment or retention in office, shall be guilty of a misdemeanor, and upon conviction thereof shall be forever dis- qualified from holding any similar office in the courts of this state. [Amendments approved March 8, 1895; stats. 1895, p. 30. In effect March 8, 1895.] Improper attempt to influence jurors, referees, etc. 95. Every person who corruptly attempts to influence a juror, or any person summoned or drawn as a juror, or chosen as an arbitrator, or umpire, or appointed a referee, in respect to his verdict in or decision of any cause, or proceeding, pending, or about to be brought before him, either: One By means of any communication, oral or written, had with him except in the regular course of proceedings; Two By means of any book, paper, or instrument exhibited, otherwise than in the regular course of proceedings; Three By means of any threat, intimidation, persuasion, or entreaty; or. Pour By means of any promise, or assurance of any pecuniary or other advantage; is punishable by fine not exceeding uve thousand dollars, or by imprisonment in the state prison not exceeding five years. [Approved March 30, 1874; amendments 1873-4, p. 424. In effect July 1. 1874.1 61 Cal. 135; 64 Cal. 4X6; 121 Cal. 389. Misconduct of jurors, referees, etc. 96. Every juror, or person drawn or summoned as a juror, or chosen arbitrator or umpire, or appointed referee, who either: 97-100 PENAL CODE. 510 One Makes any promise or agreement to give a verdict or decision for or against any party; or, Two 'Wilfully and corruptly permits any communication to be made to him, or receives any book, paper, instrument, or information relating to any cause or matter pending before him, except according to the regular course of proceedings, is punishable by fine not exceeding five thousand dollars, or by imprisonment in the state prison not exceeding five years. [Approved March 30, 1874; Amendments 1873-4, p. 424. In effect July 1, 1874.] 64 Cal. 436; 99 Cal. 330. Justice or constable purchasing judgment. 97. Every justice of the peace or constable of the same township who purchases or is interested in the purchase of any judgment or part thereof on the docket of, or on any docket in possession of such justice, is guilty of a misde- meanor. Officers convicted of, disfranchised. 98. Every officer convicted of any crime defined in this chapter, in addition to the punishment prescribed, forfeits his office and is forever disqualified from holding any office in this state. Superintendent of printing, interest in contracts, etc. 99. The superintendent of state printing shall not, during his continuance in office, have any interest, either directly or indirectly, in any contract in any way connected with his office as superintendent of state printing; nor shall he, during said period, be interested, either directly or indirectly, in any state printing, binding, engraving, lithographing, or other state work of any kind connected with his said office; nor shall he, directly or indirectly, be interested in any contract for furnish- ing paper, or other printing stock or material, to or for use in his said office; and any violations of these provisions shall subject him, on conviction before a court of competent juris- diction, to imprisonment in the state prison for a term of not less than two years nor more than five years, and to a fine of not less than one thousand dollars nor more than three thous- and dollars, or by both such fine and imprisonment. [Amend- ment annroved March 27, 1895; Stats. 1895, p. 235. In effect March 2^ 1895.] Superintendent of printing, collusion in furnishing materials. 100. If the said superintendent of state printing shall cor- ruptly collude with any person or persons furnishing paper or materials, or bidding therefore, or with any other person or persons, or have any secret understanding with him or them, by himself or through others, to defraud the state, or by which the state shall be defrauded or made to sustain a loss, contrary to the true intent and meaning of this act, he shall, upon conviction thereof, in any court of competent jurisdiction, forfeit his office, and be subject to imprisonment in the state prison for a term of not less than two years, and to a fine of not less than one thousand dollars nor more than three thousand dollars, or both such fine and imprisonment. [New section approved April 3, 1876; Amendments 1875-6, p. 19. In effect April 3d, 1876.] 511 RESCUES ESCAPES. 101-106 CHAPTER II. RESCUES. Sec. 101. Rescuing prisoners. 102. Retaking goods from custody of officer. Rescuing prisoners. 101. Every person who rescues or attempts to rescue, or aids another person in rescuing or attempting to rescue, any prisoner from any prison, or from any officer or person having him in lawful custody, is punishable as follows: 1. If such prisoner was in custody upon a conviction of felony punishable with death: by imprisonment in the state prison not less than one nor more than fourteen years; 2. If such prison* was in custody upon a conviction of any other felony: L\ imprisonment in the state prison not less than six months nor more than five years; 3. If such prisoner was in custody upon a charge of felony: by a fine not exceeding one thousand dollars and imprison- ment in the county jail not exceeding two years; 4. If such prisoner was in custody otherwise than upon a charge or conviction cf felony; by fine not exceeding five hundred dollars and imprisonment in the county jail not ex- ceeding six months. Retaking goods from custody of officer. 102. Every person who wilfully injures or destroys, or takes or attempts to take, or assists any person in taking or attempting to take, from the custody of any officer or person, any personal property which such officer or person has in charge under any process of law, is guilty of a misdemeanor. CHAPTER III. ESCAPES AND AIDING THEREIN. Sec. 105. Escapes from state prison. lOfi. Attempt to escape from state prison. 107. Escapes from other than stat* A prison. 108. Officers suffering convicts to escape. 109. Assisting prisoner to escape. 110. Carrying Into prison things useful t i rid f -. an escape. 111. Expense of trial for escape. Escapes from state prison. 105. Every prisoner confined in the state prison for a term less than for life, who escapes therefrom, is punishable by imprisonment in the state prison for a term equal in length to the term he was serving at the time of such escape; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison. [Amendment approved April 16, 1880; Amendments 1880, p. 42. In effect April 16th, 1880.] S8 Gal. 170; 132 Cal. 348. Attempt to escape from state prison. , 106. Every prisoner confined in the state prison for a term less than for life, who attempts to escape from such prison, is guilty of a felony, and, on conviction thereof, the term of imprisonment therefor shall commence from the time such convict would otherwise have been discharged from said prison. [Amendment approved April 16, 1880; Amendments 1880, p. 42. In effect April 16, 1880.] 107-113 PENAL CODE. 512 Escapes from other than state prison. 107. Every prisoner confined in any other prison than the state prison, who escapes or attempts to escape therefrom, is guilty of a misdemeanor. Officers suffering convicts to escape. 108. Every keeper of a prison, sheriff, deputy sheriff, con- stable, or jailer, or person employed as a guard, who fraudu- lently contrives, procures, aids, connives at, or voluntarily permits the escape of any prisoner in custody, is punishable by imprisonment in the state prison not exceeding ten years, and fine not exceeding ten thousand dollars. Assisting prisoners to escape. 109. Every person who wilfully assists any prisoner con- fined in any prison or in the lawful custody of any officer or person to escape, or in an attempt to escape from such prison or custody, is punishable as provided in section 108 of this code. Carrying into prison things useful to aid in an escape. 110. Every person who carried or sends into a prison any- thing useful to aid a prisoner in making his escape, with in- tent thereby to facilitate the escape of any prisoner confined therein, is punishable as provided in section 108 of this code. Expense of trial for escape. 111. Whenever a trial shall be hadi of any person under any of the provisions of sections one hundred and five and one hundred and six of this code, and whenever a convict in the state prison shall be tried for any crime committed therein, the county clerk of the county where such trial is had shall make out a statement of all the costs incurred by the county for the trial of such case, and of guarding and keeping such convict, properly certified to by a superior judge of said coun- ty, which statement shall be sent to the board of state prison directors for their approval; and after such approval, said board shall cause the amount of such costs to be paid out of the money appropriated for the support of the state prison to the county treasurer of the county where such trial was had. [New section approved April 6, 1880; Amendments 1880, p. 9. In effect April 6, 1880.] CHAPTER IV. FORGING, STEALING, MUTILATING, AND FALSIFYING JUDICIAL AND PUBLIC RECORDS AND DOCUMENTS. Sec. 113. Larceny, destruction, etc., of records by officers. 114. Larceny, destruction, etc.. of records hy otners. 115. Offering false or forced instruments to be recorded. 116. Adding names, otc.. to jury lists. 117. Falsifying jury lists, etc. Larceny, destruction, etc., of records by officers. 113. Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his hands for any purpose, who is guilty of stealing, wilfully destroying, mu- tilating, defacing, altering or falsifying, removing or secreting the whole or any part of such record, map, book, paper, or proceeding, or who permits any other person so to do, is pun- 513 PERJURY AND SUBORNATION. 114-118 ishable by imprisonment in the state prison not less than one nor more than fourteeen years. 96 Cal. 174. Larceny, destruction, etc., of records by others. 114. Every person not an officer such as is referred to in the preceding section, who is guilty of any of the acts specified in that section, is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceed- iny one year, or by a fine not exceeding one hundred dollars, or by both. 96 Cal. 174. Offering false or forged instruments to be recorded. 115. Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, or registered, or recorded under any law of this state or of the United States, is guilty of felony. 84 Cal. 569; 132 Cal. 2. Adding names, etc., to jury lists. 116. Every person who adds any name to the list of persons selected to serve as jurors for the county, either by placing the same in the jury box or otherwise, or extracts any name therefrom, or destroys the jury box or any of the pieces of paper containing the names of jurors, or mutilates or defaces such names so that the same cannot be read, or changes such names on the pieces of paper, except in cases allowed by law, is guilty of a felony. [Approved March 30, 1874; Amendments 1873-4, p. 425. In effect July 1, 1874.] Falsifying jury lists, etc. 117. Every officer or person required by law to certify to the list of persons selected as jurors, who maliciously, corruptly, or wilfullv certifies to a false or incorrect list, or a list con- taining other names than those selected, or who, being required by law to write down the names placed on the certified lists on separate pieces of paper, does not write down and place in the jurv box the same names that are on the certified list, and no more and no less than are on such lists, is guilty of a felony. CHAPTER V. PERJURY AND SUBORNATION OF PERJURY. Sec. IIP. Perjury defined. 110. Oath defined. 120. Oath of office. 121. Irregularity in administering. 122. Incompetency of witness no defense. 123. Knowledge of materiality of testimony not necessary. 124. Makin.tr depositions, etc., when deemed complete. 125. Statement of that which one does not know to be true. 12f>. Punishment of per.iury. 127. Subornation of perjury. 128. Procuring the execution of innocent persons. Perjury defined. 118. Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, wilfully and contrary CRIMES--33 119-128 PENAL CODE. 514 to such oath, states as true any material matter which he knows to be false, is guilty of perjury. 54 Cal. 528; 59 Cal. 374; 59 Cal. 379; 63 Cal. 63; 64 Cal. 271; 103 Cal. 427; 111 Cal 658; 113 Cal. 75; 117 Cal. 682; 120 Cal. 132; 122 Cal. 680; 131 Cal. 260; 133 Cal. 368. Oath defined. 119. The term "oath," as used in the last section, includes an affirmation, and every other mode authorized by law of at- testing the truth of that which is stated. 133 Cal. 370. Oath of office. 120. So much of an oath of office as relates to the future performance of official duties is not such an cath as is intended by the two preceding sections. Irregularity in administering. 121. It is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner. 64 Cal. 271; 118 Cal. 80; 131 Cal. 256. Incompetency of witness no defense. 122. It is no defense to a prosecution for perjury that the accused was not competent to give the testimony, deposition, or certificate of which falsehood is alleged. It is sufficient that he did give such testimony or make such deposition or certificate. 64 Cal. 271. Knowledge of materiality of testimony not necessary. 123. It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him; or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding. 82 Cal. 610. Making depositions, etc., when deemed complete. 124. The making of a deposition or certificate Is deemed to be complete, within the provisions of this chapter, from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true. IIT Cal. 682; 118 Cal. 51. Statement of that which one does not know to be true. 125. An unqualified statement of that which one does not know to- be true is equivalent to a statement of that which one knows to be false. 120 Cal. 132. Punishment of perjury. 126. Perjury is punishable by imprisonment in the state prison not less than one nor more than fourteen years. Subornation of perjury. 127. Every person who wilfully procures another person to commit perjury is guilty of subornation of perjury, and is pun- ishable in the same manner as he would be if personally guilty of the perjury so procured. Procuring the execution of innocent persons. 128. Every person who, by wilful perjury or subornation of perjury, procures the conviction and execution of any innocent person, is punishable by death. 515 FALSIFYING EVIDENCE. 132-138 CHAPTER VI. FALSIFYING EVIDENCE. Sec. 132. Offering false evidence. 133. Deceiving a witness. 134. Preparing false evidence. 1 :!.">. Destroying evidence. 136. Preventing or dissuading witness from attending. 137. Bribing witnesses. 138. Receiving or offering to receive bribes. Offering false evidence. 132. Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or antedated, is guilty of felony. Deceivinq a witness. 133. Every person who practices any fraud or deceit, or know- ingly makes or exhibits any false statement, representation, token, or writing, to any witness or person about to be called as a witness upon any trial, proceeding, inquiry, or investigation whatever, authorized by law, with intent to affect the testimony of such witness, is guilty of a misdemeanor. Preparing false evidence. 134. Every person guilty of preparing any false or antedated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony. Destroying evidence. 135. Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, wilfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor. Preventing or dissuading witness from attending. 136. Every person who wilfully prevent or dissuades any person who is or may become a witness, from attending upon any trial, proceeding, or inquiry, authorized by law, is guilty of a misdemeanor. Bribing witnesses. 137. Every person who gives or offers, or promises to give, to any witness, or person about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced, or who attempts by any other means fraudulently to induce any person to give false or withhold true testimony, is guilty of a felony. [Ap- proved March 30, 1874; amendments 1873-4, p. 425. In effect July 1, 1874.] 78 Cal. 170. Receiving or offering to receive bribes. 138. Every person who is a witness, or is about to be called as such, who receives, or offers to receive, any bribe, upon any 142-143 PENAL CODE. 516 understanding that his testimony shall be influenced thereby, or that he will absent himself from the trial or proceeding upon which his testimony is required, is guilty of a felony. [Ap- proved March 30, 1874; amendments 1873-4, p. 425. In effect July 1. 1874.] CHAPTER VII. OTHER OFFENSES AGAINST PUBLIC JUSTICE. Sec. 142. Officer refusing to arrest parties charged with crime. 143. Public administrator, neglect or violation of duty by. 144. Receiving fee for services in arresting fugitives. . 145. Delaying to take person arrested before a magistrate. 146. Making arrests, etc., without lawful authority. 147. Inhutaanity to prisoners. 148. Resisting public offl cers in the discharge of their duties. 149. Assault, etc., by officers, under color of authority. 150. Refusing to aid officers In arrest, etc. 153. Compounding crimes. 154. Debtor fraudulently concealing his property. 155. Defendant fraudulently concealing his property. 156. Fraudulent pretense relative to birth of Infant. 157. Substituting one child for another. 158. Common barratry defined. How punished. 159. What proof is reaulred. 159$. Advertising procuring of divorce. 160. Misconduct by attorneys. 161. Buying demands or suit by an attorney. 162. Attorneys forbidden to defend prosecutions carried on by their partners or formerly by themselves. 163. Limitation of preceding section. 164. Grand juror acting after challenge has been allowed. 165. Bribing boarda of supervisors. 166. Criminal contempts. 167. False certificates by public officers. 168. Disclosing fact of indictment having been found. 169. Disclosing what transpired before the grand jury 170. Maliciously procuring search warrant. 171. Unauthorized communication with convict. 172. Keeping liquor within two miles of state prison. 17:?. Importing foreign convicts. 174. Bringing Chinese into the state. 175. Separate and distinct prosecution. 170. Omission of duty by public officer. 177. Offense for which no penalty isj prescribed. 178. < (Hirers of corporations not to employ Chinese. 179. Corporations not to employ Chinese. 180. County treasurer receiving money from private source. 180a. Bringing narcotics. Intoxicating liquors, firearms, etc.. Into state prisons. 181. Infringement of personal liberty. Officer refusing to arrest parties charged with crime. 142. Every sheriff, coroner, keeper of a jail, constable, or other peace officer, who wilfully refuses to receive or arrest any person charged with a criminal offense, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding five years. Public administrator, neglect or violation of duty by. 143. Every person holding the office of public administrator, who wilfully refuses or neglects to perform the duties thereof, or who violates any provision of law relating to his duties or the duties of his office, for which some other punishment is not prescribed, is punishable by fine not exceeding five thousand dollars, or imprisonment in the county jail not exceeding two years, or both. 517 OTHER OFFENSES. 144-153 Receiving fee for services in arresting fugitives. 144. Every person who violates any of the provisions of sec- tion 1558 is guilty of a misdemeanor. Delaying to take person arrested before a magistrate. 145. Every public officer or other person, having arrested any person upon a criminal charge, who wilfully delays to take such person before a magistrate having jurisdiction, to take his examination, is guilty of a misdemeanor. Making arrests, etc., without lawful authority. 146. Every public officer, or person pretending to be a public officer, who, under the pretense or color of any process or other legal authority, arrests any person or detains him against his will, or seizes or levies upon any property, or dispossesses any one of any lands or tenements, without a regular process or other lawful authority therefor, is guilty of a misdemeanor. Inhumanity to prisoners. 147. Every officer who is guilty of wilful inhumanity or oppression toward any prisoner under his care or in his custody, is punishable by fine not exceeding two thousand dollars, and by removal from office. Resisting public officers in the discharge of their duties. 148. Every person who wilfully resists, delays, or obstructs any public officer, in the discharge or attempt to discharge any duty of his office, when no other punishment is prescribed, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding five years. 59 Cal. 370; 120 Cal. 2S1. Assault, etc., by officers, under color of authority. 149. Every public officer who, under color of authority, with- out lawful necessity, assaults or beats any person, is punish- able by fine not exceeding five thousand dollars, and imprison- ment in the county jail not exceeding five years. Refusing to aid officers in arrest, etc. 150. Every male person above eighteen years of age who neglects or refuses to join the posse comitatus or power of the county, by neglecting or refusing to aid and assist in taking or arresting any person against whom there may be issued any process, or by neglecting to aid and assist in retaking any per- son who. after being arrested or confined, may have escaped from such arrest or imprisonment, or by neglecting or refusing to aid and assist in preventing any breach of the peace, or the commission of any criminal offense, being thereto lawfully required by any sheriff, deputy sheriff, coroner, constable, judge, or justice of the peace, or other officer concerned in the admin- istration of justice, is punishable by fine of not less than fifty nor more than one thousand dollars. Compounding crimes. 153. Every person who, having knowledge of the actual com- mission of a crime, takes money or property of another, or any gratuity or reward, or any engagement, or promise thereof, upon any agreement or understanding to compound or conceal such crime, or to abstain from any prosecution thereof, or to with- hold any evidence thereof, except in the cases provided for by law in which crimes may be compromised by leave of court, is punishable ?.s follows: 154-159 PENAL CODE. 518 1. By imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year, where the crime was punishable by death or imprisonment in the state prison for life; 2. By imprisonment in the state prison not exceeding three years, or in the county jail not exceeding six months, where, the crime was punishable by imprisonment in the state prison for any other term than for life; 3. By imprisonment in the county jail not exceeding six months, or by fine not exceeding five hundred dollars, where the crime was a misdemeanor. 103 Cal. 677. Debtor fraudulently concealing his property. 154. Every debtor who fraudulently removes his property or effects out of this state, or fraudulently sells, conveys, assigns, or conceals his property, with intent to defraud, hinder, or delay his creditors of their rights, claims, or demands, is punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars, or by both. 103 Cal. 354. Defendant fraudulently concealing his property. 155. Every person against whom an action is pending, or against whom a judgment has been rendered for the recovery of any personal property, who fraudulently conceals, sells, or dis- poses of such property, with intent to hinder, delay, or defraud the person bringing such action or recovering such judgment, or with such intent removes such property beyond the limits of the county in which it may be at the time of the commencement of such action or the* rendering of such judgment, is punishable as provided in the preceding section. Fraudulent pretenses relative to birth of infant. 156. Every person who fraudulently produces an infant, falsely pretending it to have been born of any parent whose child would be entitled to inherit any real estate or to receive a share of any personal estate, with intent to intercept the inher- itance of any such real estate, or the distribution of any such personal estate from any person lawfully entitled thereto, is punishable by imprisonment in the state prison not exceeding ten years. Substituting one child for another. 157. Every person to whom an infant has been confided for nursing, education, or any other purpose, who, with intent to deceive any parent or guardian of such child, substitutes or produces to such parent or guardian another child in the place of the one so confided, is punishable by imprisonment in the state prison not exceeding seven years. Common barratry defined. How punished. 158. Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail not exceeding six months and by fine not exceeding five hundred dollars. What proof is required. 159. No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy. 519 OTHER OFFENSES. 1594-163 Advertising procuring of divorce. 159%. Whoever advertises, prints, publishes, distributes, or circulates, or causes to be advertised, printed, published, dis- tributed, or circulated, any circular, pamphlet, card, handbill, advertisement, printed paper, book, newspaper, or notice of any kind, offering to procure or obtain, or to aid in procuring or obtaining, any divorce, or the severance, dissolution, or nullity of any marriage, or offering to engage or appear or act as attor- ney, counsel, or referee in any suit for alimouy or divorce, or the severance, dissolution, or nullity of any marriage, either in this state or elsewhere, shall be guilty of a misdemeanor- This act shall not apply to the printing or publishing of any notice or advertisement required or authorized by any law of this state. [Amendment approved February 27, 1893; stats. 1893, p. 48. In effect immediately.] Misconduct by attorneys. 160. Every attorney who, whether as attorney or as counsel- lor, either: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any partv; or, 2. Wilfully delays his client's suit with a view to his own gain; or. 3. Wilfully receives any money or allowance for or on account of any money which he has not laid out or become answerable for; is guilty of a misdemeanor. Buying demands or suit by an attorney. 161. Every attorney who, either directly or indirectly, buys or is interested in buying any evidence of debt or thing in action, with intent to bring suit thereon, is guilty of a misde- meanor. 68 Cal.\ 81; 98 Cal. 524. Attorneys forbidden to defend prosecutions carried on by their partners or formerly by themselves. 162. Every attorney who directly or indirectly advises in relation to, or aids, or promotes the defense of any action, or proceeding in any court, the prosecution of which is carried on, aided, or promoted by any person as district attorney or other public prosecutor, with whom such person is directly or indirect- ly connected as a partner; or who, having himself prosecuted or in any manner aided or promoted any action or proceeding in any court as district attorney or other public prosecutor, afterwards, directly or indirectly, advises in relation to or takes any part in the defense thereof, as attorney or otherwise, or who takes or receives any valuable consideration from or on behalf of any defendant in any such action, upon any under- standing or agreement whatever having relation to the defense thereof, is guilty of a misdemeanor, and in addition to the pun- ishment prescribed therefor, forfeits his license to practice law. 69 Cal. 59. Limitation of preceding section. 163. The preceding section does not prohibit an attorney from defending himseif in person, as attorney or counsel, when prosecuted, either civilly or criminally. 164-168 PENAL CODE. 520 Grand juror acting after challenge has been allowed. 164. Every grand juror who, with knowledge that a challenge interposed against him by a defendant has been allowed, is present at or takes part or attempts to take part in the con- sideration of the charge against the defendant who interposed the challenge, or the deliberations of the grand jury thereon, is guilty of a misdemeanor. Bribing boards of supervisors, etc. 165. Every person who gives or offers a bribe to any member of any common council, board of supervisors, or board of trustees of any county, city, or corporation, with intent to cor- ruptly influence such member in his action on any matter or subject pending before the body of which he is a member, and every member of either of the bodies mentioned in this section who receives or offers to receive any such bribe, is punishable by imprisonment in the state prison for a term not less than one nor more than fourteen years, and is disqualified from holding any office in this state. 93 Cal. 631.110 'Cal. 372. Criminal contempts. 166. Every person guilty of any contempt of court, of either of the following kinds, is guilty of a misdemeanor: 1. Disorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in immediate view and presence of the court, and directly tending to interrupt its pro- ceedings or to impair the respect due to its authority; 2. Behavior of the like character committed in the presence of any referee, while actually engaged in any trial or hearing, pursuant to the order of any court, or in the presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceedings authorized by law; 3. Any breach of the peace, noise, or other disturbance directly tending to interrupt the proceedings of any court; 4. Wilful disobedience of any process or order lawfully issued by any court; 5. Resistance wilfully offered by any person to the lawful order or process of any court; 6. The contumacious and unlawful refusal of any person to be sworn as a witness; or, when so sworn, the like refusal to answer any material question; 7. The publication of a false or grossly inaccurate report of the proceedings of any court; 8. Presenting to any court having power to pass sentence upon any prisoner under conviction, or to any member of such court, any affidavit or testimony or representation of any kind, verbal or written, in aggravation or mitigation of the punishment to be imposed upon such prisoner, except as provided in this code. 64 Cal. 438: 69 Cal. 543: S9 Cal. 361. False certificates by public officers. 167. Every public officer authorized by law to make or give any certificate or other writing, who makes and delivers as true any such certificate or writing, containing statements which he knows to be false, is guilty of a misdemeanor. Disclosing fact of indictment having been found. 168. Every grand juror, district attorney, clerk, judge, or other officer, who, except by issuing or in executing a warrant of 521 OTHER OFFENSES. 169-175 arrest, wilfully discloses the fact of a presentment or indict- ment having been made for a felony, until the defendant has been arrested, is guilty of a misdemeanor. 63 Cal. 424. Disclosing what transpired before the grand jury. 169. Every grand juror who, except when required by a court, wilfully discloses any evidence adduced before the grand jury, or anything which he himself or any other member of the grand jury may have said, or in what manner he or any other grand juror may have voted on a matter before them, is guilty of a misdemeanor. Maliciously procuring search warrant. 170. Every person who maliciously and without probable cause procures a search warrant or warrant of arrest to be issued and executed, is guilty of a misdemeanor. Unauthorized communication with convict. 171. Every person, not authorized by law, who, without the consent of the warden, or other officer in charge of the state prison, communicates with any convict therein, or brings into or conveys out of the state prison any letter or writing to or from any convict, is guilty of a misdemeanor. Keeping liquor within two miles of state prison, etc. 172. Every person who, within two miles of the land belong- ing to this state, upon which the state prison is situated, or within one mile of the insane asylum at Napa, or within one mile of the grounds belonging and adjacent to the University of California, in Alameda county, or in the state capitol, or within the limits of the grounds adjacent and belonging thereto, sells, gives away, or exposes for saie, any vinous or alcoholic liquors, is guilty of a misdemeanor. [Amendment approved April 3, 1876; amendments 1875-6, p. 109. In effect April 3, 1876.] 61 Cal. 437. Importing foreign convicts. 173. Every captain, master of a vessel, or other person, who wilfully imports, brings, or sends, or causes or procures to be brought or sent, into this state, any person who is a foreign con- vici of any crime which, if committed within this state, would be punishable therein, (treason and misprision of treason except - ed) or who is delivered or sent to him from any prison or place of confinement in any p^ace without this state, is guilty of a misdemeanor. Bringing Chinese into the state. 174. Every person bringing to o:- landing within this state any person born either in the empire of China or Japan, or the islands adjacent to the empire of China, without first presenting to the commissioner of immigration evidence satisfactory to such commissioner that such person desires voluntarily to come into this state and is a person of good character, and obtaining from such cqmmissioner a permit describing such person and authorizing the landing, is punishable by a fine of not less than one nor more than five thousand dollars, or by imprisonment in the county jail not less than two nor more than twelve months. Separate and distinct prosecution. 175. Every individual person of the classes referred to In the two preceding sections, brought to or landed within this 176-180 PENAL CODE. 522 state contrary to the provisions of such sections, renders the person bringing or landing liable to a separate prosecution and penalty. Omission of duty by public officer. 176. Every wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision shall have been made i'or the punishment of such delinquency, is punishable as a misdemeanor. 47 Cal. 129; 84 Cal. 310. Offense for which no penalty is prescribed. 177. When an act or omission is declared by a statute to be a public offense, and no penalty for the offense is prescribed in any statute, the act or omission is punishable as a misdemeanor. I Amendment approved March 30, 1874; amendments 1873-4, p. 426. In effect July 1, 1874.] i):; Cal. 310. Officers of corporations not to employ Chinese. 178. Any officer, director, manager, member, stockholder, clerk, agent, servant, attorney, employee, assignee, or con- tractor of any corporation now existing, or hereafter formed under the laws of this state, who shall employ, in any manner or capacity, upon any work or business of such corporation any Chinese or Mongolian, is guilty of a misdemeanor, and is pun- ishable by a fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the county jail of not less than fifty nor more than five hundred days, or by both such fine and imprisonment; provided, that no director of a corporation shall be deemed guilty under this section who refuses to assent to such employment, and has such dissent recorded in the minutes of the board of directors. 1. Every person who, having been convicted for violating the provisions of this section, commits any subsequent violation thereof after such conviction, is punishable as foaows: 2. For each subsequent conviction such person shall be fined not less than five hundred nor more than five thousand dollars, or by imprisonment not less than two hundred and fifty days nor more than two years, or by both such fine and imprison- ment. [New section approved February 13, i860; amendments 1880, p. 1. In effect February 13, 1880.] Corporations not to employ Chinese. 179. Any corporation now existing, or hereafter formed under the laws of this state, that shall employ, directly or indirectly, in any capacity, any Chinese or Mongolian, shall be guilty of a misdemeanor, and upon conviction thereof shall for the first offense be fined not less than five hundred nor more than five thousand dollars, and upon the second conviction shall, in addition to said penalty, forfeit its charter and franchise, and all its corporate rights and privileges, and it shall be the duty of the attorney general to tak'e the necessary steps to enforce such forfeiture. [Amendment approved February 13. 1880; amendments 1880, p. 2. In effect February 13, 1880.] County treasurer receiving money from private source. 180. Any county treasurer who shall accept, or allow, any deposit in the county treasury of moneys from any private and unofficial source, is guilty of misdemeanor, and shall be pun- 523 CONSPIRACY. 180a-182 ished by imprisonment in the county jail for not less than six months nor more than one year, or by a fine of not less than five hundred dollars and not more than five thousand dollars, or both such fine and imprisonment, in the discretion of the court, and, in addition thereto, shall forfeit his office. [New section added March 3, 1897; stats. 1897, p. 56.] Bringing narcotics, intoxicating liquors, firearms, etc., into state prisons. 180a. 'Any person, not authorized by law, who brings into either of the state prisons of the state of California, or any reformatories therein, or within the grounds of such institu- tions, or who brings into or passes into any jail within the state of California, any opium, morphine, cocaine, or other narcotics, or any intoxicating liquors of any kind whatever, or firearms, weapons, or explosives of any kind, is guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the state prison for a term not less than one nor more than five years, and shall be disqualified from hold- ing any state office or position in the employ of this state. [Stats. 1901, p. 107.] Infringement of personal liberty. 181. Every person who h6lds, or attempts to hold, any per- son in involuntary servitude, or assumes, or attempts to assume, rights of ownership over any person, or who sells, or attempts to sell, any person to another, or receives money or anything of value, in consideration of 'placing any person in the custody, or under the power or control of another, or who buys, or attempts to buy, any person, or pays money, or delivers any- thing of value, to another, in consideration of having any per- son placed in his custody, or under his power or control, or who knowingly aids or assists in any manner any one thus offending, is punishable by imprisonment in the state prison not less than one nor more than ten years. [Stats. 1901, p. 330.1 CHAPTER VIII. CONSPIRACY. Sec. 182. Criminal conspiracy defined and punishment fixed. 183. Xo other conspiracies punishable criminally. 184. Overt act, when necessary. 185. Wearing mask or disguise. Criminal conspiracy defined and punishment fixed. 182. If two or more persons conspire: One To commit any crime; Two Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime; Three Falsely to move or maintain any suit, action, or pro- ceeding; Four To cheat and defraud any person of any property, by any means which are in themselves criminal, or to obtain money or property by false pretenses; or, Five To commit any act injurious to the public health, to pub- lic morals, or for the perversion or obstruction of justice, or due administration of the laws; they are punishable by imprisonment in the county jail not 183-185 PENAL CODE. 524 exceeding one year, or by fine not exceeding one thousand dol- lars, or both. [Amendment approved March 30, 1874; amenu- ments 1873-4, p. 426. In effect July 1, 1874.] 84 Cal. 472; 105 Cal. 263. 118 Cal. 460. No other conspiracies punishable criminally. 183. No conspiracies, other than those enumerated in the preceding section, are punishable criminally. Overt act, when necessary. 184. No agreement, except to commit a felony upon the per- son of another, or to commit arson, or burglary, amounts to a conspiracy, unless some act, beside such agreement, be done to effect the object thereof, by one or more of the parties to such agreement. 105 Cal. 264. Wearing* mask or disguise. 185. It shall be unlawful for any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of: One Evading or escaping discovery, recognition, or identifica- tion in the commission of any public offense. Two Concealment, flight, or escape, when charged with, ar- rested for, or convicted of, any public offense. Any person violating any of the provisions of this section shall be deemed guilty of & misdemeanor. [New section approved March 30, 1874; amend- ments 1873-4, p. 426. In effect July 1, 1874.] 525 HOMICID.E. 187-190 TITLE VIII. OF CRIMES AGAINST THE PERSON. Chapter I. Homicide. II. Mayhem. III. Kidnapping. IV. Robbery. V. Attempts to kill. VI. Assaults with intent to commit felony, other than assaults with intent to murder. VII. Duels and challenges. VIII. False imprisonment. IX. Assault and battery. X. Libel. CHAPTER I. HOMICIDE. Sec. 187. Murder defined. 188. Malice denned. 189. Degrees of murder. 190. Punishment of murder. 191. Petit treason abolished. 192. Manslaughter voluntary and involuntary. 1!*;?. Punishment of manslaughter. 194. Deceased must die within a year and a day. 195. Excusable homicide: 196. Justifiable homicide by public ofiicers. 197. Justifiable homicide by other persons. 198. Bare fear not to justify killing. 199. Justifiable and excusable homicide not punishable. Murder defined. 187. Murder is the unlawful killing of a human being, with malice aforethought. 58 Cal 268; 63 Cal. 28; 63 Cal. 166; 63 Cal. 424; 65 Cal. 212; 65 Cal. 235; 68 Cal. 362; 86 Cal. 240; 99 Cal. 2; 122 Cal. 141. Malice defined. 188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied, when no' considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. 58 Cal. 268; 65 Cal. 235; 71 CaT. 3; 76 Cal 285; 93 Cal. 566; 120 Cal. 202; 122 Cal. 141; 123 Cal. 305. Degrees of murder. 189. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliber- ate, and premeditated killing, or which is committed in the per- petration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree. [Amendment approved March 30, 1874; amendments 1873-4, p. 427. In effect July 1, 1874.] 57 Cal. 94; 58 Cal. 26S; 59 Cal. 601; 63 Cal. 424; 71 Cal. 6: 76 Cal. 285; 80 Cal. 125; 81 Cal. 567: 86 Cal. 240; 88 Cal. 271; 99 Cal. 3; 121 Cal. 347; 122 Cal. 141. Punishment of murder. 190. Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the 191-196 PENAL CODE. 526 discretion of the jury trying the same; or, upon a plea of guilty, the court shall determine the same; and every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years. [Amendment ap- proved March 28, 1874; amendments 1873-4, p. 457. In effect March 28, 1874.] 49 Cal. 178; 49 Cal. 184; 58 Cal. 268; 59 Cal. 357; 59 Cal. 432; 67 Cal. 114; 69 Cal. 176; 90 Cal. 197; ' 105 Cal. 495; 129 Cal. 551. Petit treason abolished. 191. The rules of the common Maw, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this chapter. Manslaughter voluntary and involuntary. 192. Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds: 1. Voluntary upon a sudden quarrel or heat of passion. 2. Involuntary in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. 58 Cal. 268; 65 Cal. 212; 72 Cal. 620; SO Cal. 125; 118 Cal. 156; 129 Cal. 552. Punishment of manslaughter. 193. Manslaughter is punishable by imprisonment in the state prison not exceeding 1 ten years. Deceased must die within a year and a day. 194. To make the killing either murder or manslaughter, it is requisite that the party die within a year and a day after the stroke received or the cause of death administered; in the computation of which the whole of the day on which the act was done shall be reckoned the first. 58 Cal. 268. Excusable homicide. 195. Homicide is excusable in the following cases: 1. When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not dcce in a cruel pr unusual manner. 49 Cal. 428; 58 Cal. 268; 80 Cal. 185. Justifiable homicide by public officers. 196. Homicide is justifiable when committed by public offi- cers and those acting by their command in their aid and assist- ance, either 1. In obediences to any judgment of a competent court; or, 2. When necessarily committed in overcoming actual resist- ance to the execution of some legal process, or in the discharge of any other legal duty; or, 3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed In 527 HOMICIDE MAYHEM. 197-203 arresting persons charged with felony, and who are fleeing from justice or resisting such arrest. 58 Cal. 268. Justifiable homicide by other persons. 197. Homicide is also justifiable when committed by any person in either of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or, 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or ser- vant of such person, when there is reasonable ground to appre- hend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or, 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony com-, mitted, or in lawfully suppressisg any riot, or in lawfully keeping and preserving the peace. 58 Cal. 250; 58 Cal. 268; 60 Cal. 74; 61 Cal. 187; 61 Cal. 546; 65 Cal. 133; 67 Cal. 649; 70 Cal. 523; 74 Cal. 645; 82 Cal. 40; 89 Cal. 170; 93 Cal. 488; 106 Cal. 631; 109 Cal. 461; 111 Cal. 626; 117 Cal. ISO; 118 Cal. 269. US Cal. 443; 133 Cal. 160. Bare fear not to justify killing. 198. A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of the preceding sec- tion, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be suffi- cient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone. 68 Cal. 268; 61 Cal. 546; 65 Cal. 223; 118 Cal. 443. Justifiable and excusable homicide not punishable. 199. The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged. CHAPTER II. MAYHEM. Sec. 203. Mayhem defined. 204. Mayhem, how punished. Mayhem defined. 203. Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem. [Amendment approved March 30, 1874; amendments 1873-4, p. 427. In effect July 1, 1874.] 62 Cal. 542; 93 Cal. 565; 105 Cal. 673. 204-212 PENAL CODE. 528 Mayhem, how punishable. 204. Mayhem is punishable by imprisonment in the state prison not exceeding fourteen years. CHAPTER III. KIDNAPPING. Sec. 207. Kidnapping defined. 2m. Punishment of kidnapping. 209. Penalty for kidnapping. Kidnapping defined. 207. Every person who forcibly steals, takes, or arrests any person in this state, and carries him into another country, state, or county, or who forcibly takes or arrests any person, with a design to take him out of this state, without having established a claim according to the laws of the United States or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell such person into slavery or involuntary servitude, or otherwise to employ him for his own use, or to the use of another, without the free will and consent of such persuaded person, is guilty of kidnapping. 85 Cal. 310; &9 Cal. 150. Penalty for kidnapping. 208. Kidnapping is punishable by imprisonment in the state prison not less than one nor more than ten years. Punishment of kidnapping. 209. Every person who maliciously, forcibly, or fraudulently takes or entices away any person with intent to restrain such person and thereby to commit extortion or robbery, or exact from the relatives or friends of such person any money or valuable thing, is guilty of a felony, and shall be punished therefor by imprisonment in the state's prison for life, or any number of years not less than ten. [Stats. 1901, p. 98.] CHAPTER IV. ROBBERY. Sec. 211. Robbery denned. 212. What fear may be an element in robbery. 213. Punishment of robbery. Robbery defined. 211. Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. f'al. 59; 56 Cal. 80; 59 Cal. 439; 67 Cal. 422; -r, Cal. 99; 80 Cal. 207; 100 Cal. 439; 116 Cal. 586; 118 Cal. 26. What fear may be an element in robbery. 212. The fear mentioned in the last section may be either: One The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, Two The fear of an immediate and unlawful injury to the person or property of any one in the company of the person 529 ATTEMPTS TO KILL. 213-220 robbed at the time of the robbery. [Amendment approved Marcn 30, 1874; amendments 1873-4, p. 427. In effect July 1, 1874.] Punishment of robbery. 213. Robbery is punishable by imprisonment in the state prison not less than one year. 59 Cal. 441; 60 Cal. 110; 61 Cal. 137; 69 Cal. 605; 118 Cal. 93. CHAPTER V. ATTEMPTS TO KILL. Sec. 216. Administering poison. 217. Assault with intent to commit murder. 218. Train-wrecking, punishment for. Administering poison. 216. Every person who, with intent to kill, administers, or causes or procures to be administered, to another, any poison or other noxious or destructive substance or liquid, but by which death is not caused, is punishable by imprisonment in the state prison not less than ten years. 53 Cal. 148; 54 Cal. 54. Assault with intent to commit murder. 217. Every person who assaults another with intent to com- mit murder, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. SO Cal. 44; 99 Cal. 232. Train-wrecking, punishment for. 218. Every person who shall unlawfully throw out a switch, remove a rail, or place any obstruction on any railroad in the state of California, with the intention of derailing any passenger, freight, or other train, or who shall unlawfully board any pas- senger train with the intention of robbing the same, or who shall unlawfully place any dynamite or other explosive material, or any other obstruction, on the track of any railroad in the state of California, with the intention of blow- ing up or derailing any passenger, freight, or other train, or who shall unlawfully set fire to any railroad bridge or trestle, over which any passenger, freight, or other train must pass, with the intent of wrecking said train, upon conviction shall be adjudged guilty of felony, and shall be punished with death or imprisonment in the state prison for life, at the option of the jury trying the case. [New section added March 31, 1891; stats. 1891, p. 283. In effect immediately.] Ill Cal. 244. CHAPTER VI. ASSAULTS WITH INTENT TO COMMIT FELONY, OTHER THAN ASSAULTS WITH INTENT TO MURDER. Sec. 220. Assault with intent to commit rape. 221. Other assaults. 222. Administering stupefying drugs. Assault with intent to commit rape. 220. Every person who assaults another with intent to com- mit rape, the infamous crime against nature, mayhem, robbery, CRIMES --34 221-228 PENAL CODE. 530 or grand larceny, is punishable by imprisonment in the state prison not less than one nor more- than fourteen years. 53 Cal. 539; 65 Cal. 299; 93 Cal. 583; 98 Cal. 128; 106 Cal. 214; 109 Cal. 277; 118 Cal. 26; 119 Cal. 386. 'Other assaults. 221. Every person who is guilty of an assault, with intent to commit any felony, except an assault with intent to commit murder, the punishment for which assault is not prescribed by the preceding section, is punishable by imprisonment in the' state prison not exceeding five years, or in a county jail not exceeding one year, or by fine not exceeding five hundred dol- lars, or bv both. 61 Cal. 622. Administering stupefying drugs. 222. Every person guilty of administering to another any chloroform, ether, laudanum, or other narcotic, anaesthetic, or intoxicating agent, with intent thereby to enable or assist him- self or any other person to commit a felony, is guilty of felony. CHAPTER VII. DUELS AND CHALLENGES. Sec. 225. Duel defined. 226. Punisiiment for fighting a duel, when death ensues. ui'7. Punishment for fighting a duel, although death does not ensue. 228. Persons fighting duels, etc., disqualified from holding office, etc. 229. Posting for not fighting. 230. Duties of officers to prevent duels. 231. Leaving the state with intent to evade laws against dueling. 232. Witness' privilege. Duel defined. 225. A duel is any combat with deadly weapons, fought between two or more persons, by previous agreement or upon a previous quarrel. Punishment for fighting a duel, when death ensues. 226. Every person guilty of fighting any duel, from which death ensues within a year and a day, is punishable by imprison- ment in the state prison not less than one nor more than seven years. Punishment for fighting a duel, although death does not ensue. 227. Every person who fights a duel, or who sends or accepts a challenge to fight a duel, is punishable by imprisonment in the state prison or in the county jail not exceeding one year. [Amendment approved March 30, 1874; amendments 1873-4, p. 428. In effect July 1, 1874.] Persons fighting duels, etc., disqualified from holding office, etc. 228. Any citizen of this state who shall fight a duel with deadly weapons, or send or accept a challenge to fight a duel with deadly weapons, either within this state or out of it, or who shall act as second, or knowingly aid or assist in any manner those thus offerfding, shall not be allowed to hold any office of profit, or to enjoy the right of suffrage, and shall be declared so disqualified in the judgment, upon conviction. [Amendment approved April 6, 1880; amendments 1880, p. 8. In effect April 6, 1880.] 531 FALSE IMPRISONMENT. 229-237 Posting for not fighting. 229. Every person who posts or publishes another for not fighting a duel, or for not sending or accepting a challenge to fight a duel, or who uses any reproachful or contemptuous language, verbal, written, or printed, to or concerning another, for not sending or accepting a challenge to fight a duel, or with intent to provoke a duel, is guilty of a misdemeanor. Duties of officers to prevent duels. 230. Every judge, justice of the peace, sheriff, or other officer bound to preserve the public peace, who has knowledge of the intention on the part of any persons to fight a duel, and who does not exert his official authority to arrest the party and prevent the duel, is punishable by fine not exceeding one thousand dollars. Leaving the state with intent to evade laws against dueling. 231. Every person who leaves this state with intent to evade any of the provisions of this chapter, and to commit any act out of this state such as is prohibited by this chapter, and who does any act, although out of this state, which would be punish- able by such provisions if committed within this state, is pun- ishable in the same manner as he would have been in case such act had been committed within this state. Witness' privilege. 232. No person shall be excused from testifying or answer- ing any question upon any investigation or trial for a violation of either of the provisions of this chapter, upon the ground that his testimony might tend to convict him of a crime. But no evidence given upon any examination of a person so testifying shall be received against him in any criminal prosecution or proceeding. CHAPTER VIII. FALSE IMPRISONMENT. Sec. 236. False imprisonment defined. 237. False imprisonment, punishment for. False imprisonment defined. 236. False imprisonment is the unlawful violation of the persona] liberty of another. 73 Cal. 256; 77 Cal. 570; 85 Cal. 312. False imprisonment, punishment for. 237. False imprisonment is punishable by fine not exceeding five hundred dollars, or by imprisonment in the county jail not more than one year, or by both. If such false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison for not less than one nor more than ten years. [Stats. 1901, p. 53.] 85 Cal. 312. 240-246 PENAL CODE. 532 CHAPTER IX. ASSAULT AND BATTERY. St'c. 1MU Assault defined. 241. Assault, how punished. _M1'. Mattery denned. L'l:;. I'.attery. how punished. 244. Assaults with caustic chemicals. 2I.*>. Assaults with deadly wcaiions. LM<;. Death penalty for assault by life convict. Assault defined. 240. An assault is an unlawful attempt, coupled with a pres- ent ability, to commit a violent injury on the person of another. 47 Cal. 108; 59 Cal. 630; 61 Cal. 621; 65 Cal. 212; 66 Cal. 367; 69 Cal. 604; 70 Cal. 468; 77 Cal. 636; 119 Cal. 385. Assault, how punished. 241. An assault is punishable by fine not exceeding five hun- dred dollars, or by imprisonment in the county jail not exceed- ing three months. 61 Cal. 622; 71 Cal. 624; 88 Cal. 580. Battery defined. 242. A battery is any wilful and unlawful use of force or violence upon the person of another. 61 Cal. 622; 65 Cal. 213. Battery, how punished. 243. A battery is punishable by fine oi not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding six months, or by both. [Amendment approved Feb- ruary 26, 1881; stats. 1881, p. 11.1 60 Cal. 438; 61 Cal. 622; 65 Cal. 156; 65 Cal. 213. Assaults with caustic chemicals. 244. Every person who wilfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of such person, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. 106 Cal. 140. Assaults with deadly weapons. 245. Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to product great bodily injury, is pun- ishable by imprisonment in the state prison, or in a county jail, not exceeding two years, or by fine not exceeding five thousand dollars, or by both. [ Amendment approved March 30, 1874; amendments 1873-4, p. 428. In. effect July 1, 1874.] :>3 Cal. 42S; 61 Cal. 488; 61 Cal. 622; 64 Cal. 342; 65 Cal. 213; 65 Cal. 475; 6? Cal. 542; 70 Cal. 2; 78 Cal. 305; 81 Cal. 119; 81 Cal. 651; 99 Cal. 232; llfi Cal. 686; 118 Cal. 389; 125 Cal. 343; 126 Cal. 681. Death penalty for assault by life convict. 246. Every person undergoing a life sentence in a state prison of this state, who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, is punishable with death. [Stats. 1901, p. 6.] 533 LIBEL. 248-254 CHAPTER X. LIBEL. See. 24S. Libel defined. 249. Punishment of libel. U.'iO. Malice presumed. :_'."i1. Truth may be given In evidence. Jury to determine law and fact. 252. Publication denned. 253. Liability of editors and publishers. 254. Publishing a true report of public official proceedings privi- leged. 255. Extent of privilege. 256. Other privileged communications 257. Threatening to publish libel. Offer to prevent publication, with intent to extort money. 258. Cartoon or caricature, publication of. 251 >. Newspaper articles to be signed. Libel defined. 248. A libel is a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the hon- esty, integrity, virtue, or reputation, or publish the natural or alleged defects of one who is alive, and thereby to expose him to pubnc hatred, contempt, or ridicule. [Amendment approved March 30, 1874; amendments 1873-4, p. 428. In effect July 1, 1874.] 73 Cal. 122. Punishment of libel. 249. Every person who wilfully, and with a malicious intent to injure another, publishes or procures to be published any libel, is punishable by fine not exceeding five thousand dollars, or imprisonment in the county jail not exceeding one year. Malice presumed. 250. An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown. Truth may be given in evidence. Jury to determine law and fact. 251. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous is true, and was published with good motives and for -justifiable ends, the party shall be acquitted. The jury have the right to determine the law and the fact. Publication defined. 252. To sustain a charge of publishing a libel, it is not need- ful that the words or things complained of should have been read or seen by another. It is enough that the accused know- ingly parted with the immediate custody of the libel under circumstances which exposed it to be read or seen by any other person than himself. 122 Cal. 93. Liability of editors and publishers. 253. Each author, editor, and proprietor of any book, news- paper, or serial publication, is chargeable with the publication of any words contained In any part of such book, or number of such newspaper or serial. Publishing a true report of public official proceedings privileged. 254. No reporter, editor, or proprietor of any newspaper is liable to any prosecution for a fair and true report of any 255-259 PENAL CODE. 534 judicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication. Extent of privilege. 255. Libelous remarks or comments connected with matter privileged by the last section receive no privilege by reason of their being so connected. Other privileged communications. 256. A communication made to a person interested in the communication, by one who was also interested or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to be malicious, and is a privileged communication. Threatening to publish libel. Offer to prevent publication, with intent to extort money. 257. Every person who threatens another to publish a libel concerning him, or any parent, husband, wife, or child of such person, or member of his family, and every person who offers to prevent the publication of any libel upon another person, with intent to extort any money or other valuable consideration from any person, is guilty of a misdemeanor. Cartoon or caricature, publication of. 258. It shall be unlawful to publish in any newspaper, hand- bill, poster, book or serial publication, or supplement thereto, the portrait of any living person a resident of California, other than that of a person holding a public office in this state, without the written consent of such person first had and obtained; provided, that it shall be lawful to publish the portrait of a person convicted of a crime. It shall likewise be unlawful to publish in any newspaper, handbill, poster, book or serial publication or supplement thereto, any caricature of any person residing in this state, which caricature will in any manner reflect upon the honor, integrity, manhood, virtue, reputation, or business or political motives of the person so caricatured, or which tends to expose the individual so caricatured to public hatred, ridicule, or contempt. A violation of this section shall be a misdemeanor, and shall be punished by a fine of not less than one hundred dollars, nor more than five hundred dollars, or by imprisonment in the county jail for not less than one month nor more than six months, or by both such fine and imprisonment. All persons concerned in said publication, either as owner on manager, editor, or publisher, or engraver, are each liable for said publication. Actions for the violation of this section shall be tried in the county where such newspaper, handbill, poster, book, or serial publication or supplement is printed or has its publication office, or in the county where the person whose portrait or caricature is published resides at the time of the alleged publication. [In effect 60 days from February 23, 1899. Stats. 1899, p. 28.] Newspaper articles to be signed. 259. Every article, statement, or editorial, contained in any newspaper or other printed publication, printed or published iu this state, which by writing or printing tends to blacken the 535 LIBEL 259 memory of one who is dead, or to impeach the honesty, integ- rity, virtue or reputation, or publish the natural or alleged defects of one who is alive, and thereby expose him or her to public hatred, contempt or ridicule, must be supplemented by the true name of the writer of such article, statement, or editorial, signed or printed at the end thereof, ^ny owner, proprietor or publisher of any newspaper or other printed publication, printed or published in this state, who shall publish any such article, statement, or editorial in any printed publication, printed or published in this state, which is not so supplemented by the true name of the writer thereof, signed or printed at the end thereof as required by this section, shall forfeit the sum of one thousand dollars for each and every article, statement, or editorial so published in violation of the requirements of this section, which said sum so forfeited may be sued for and recovered against any such owner, publisher, or proprietor so violating this sec- tion, in a civil action by and in the name of any person who may bring action therefor, one-half of the recovery to be paid into the treasury of this state by the plaintiff and the other half to be retained by the plaintiff in such action. If, in any such action, it shall appear by affidavit to the satisfaction of the court where such action is commenced that a defendant has made a pub- lication in violation of this section within this state, and that after due diligence such defendant cannot be found within this state, or is a foreign corporation, the court must direct an attachment in such action to issue against the property of such defendant, and thereupon such attachment shall issue and be executed as in other cases where by law an attachment is pro- vided for. Where the work of any author is contained in a book or pamphlet it shall be sufficient that the name of the author be printed upon the cover or upon a leaf therein, and where any publisher in the regular course of business publishes as news, telegraphic dispatches not furnished or forwarded by its or his own correspondent or correspondents, but furnished and for- warded by telegraph as news by a telegraphic news agency, established and engaged in forwarding telegraphic news to var- ious different publishers as a business, and having an established business name as such a news agency, it shall be sufficient as to such dispatches, that the said business name of such telegraphic news agency be printed in connection with such dispatches as the forwarder of the same. [In effect 30 days from passage. Signed March 20, 1899; stats. 1899, p. 155.] 261 PENAL CODE. 536 TITLE IX. OF CRIMES AGAINST THE PERSON AND AGAINST PUBLIC DECENCY AND GOOD MORALS. Chapter 1. Rape, abduction, carnal abuse of children, and seduction, sections 261-7. II. Abandonment, and neglect of children, sections 270-2. III. Abortions, sections 274-5. IV. Child-stealing, section 278. V. Bigamy, incest, and the crime against nature, sec- tions 281-7. VI. .Violating sepulture and the remains of the dead, section 290-7. VII. Crimes against religion and conscience, and other offenses against good morals, sections 299-309. VIII. Indecent exposure, obscene exhibitions, books, and prints, and bawdy and other disorderly houses, sections 311-18. IX. Lotteries, sections 319-26. X. Gaming, sections 330-7. XI. Pawnbrokers, sections 338-43. XII. Other injuries to persons, sections 346-67. CHAPTER I. RAPE. ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SEDUCTION. Sec. 201. Rape defined. 2i2. When physical ability must lie proved. 263. IVnet ration sufficient. L'ti4. Punishment of rape. :.'(>.">. Abduction of women. Jttti. Seduction for purposes of prostitution. 267. Abduction. L'r.s. Seduction under promise of in;irri:ii:o. 269. Intermarriage subsequent to seduction. Rape defined. 261. Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances: 1. Where the female is under the age of sixteen years; 2. Where she is incapable, through lunacy or other unsound- ness of mind, whether temporary or permanent, of giving legal consent; 3. Where she resists, but her resistance is overcome by force or violence; 4. Where she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution, or by any intoxicating narcotic, or anaesthetic substance, administered by or with the privity of the accused; 5. Where she is at the time unconscious of the nature of the act, and this is known to the accused: 6. Where she submits under the belief that the person com- mitting the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with 537 RAPE, ABDUCTION, SEDUCTION. 262-268 intent to induce such belief. {Amendment approved March 27, 1897; stats. 1897, p. 201.] 63 Cal. 615; 70 Cal. 468; 70 Cal. 473; 75 Cal. 32*; 94 Cal. 311; 106 Cal. 213; 112 Cal. 672; 117 Cal. A I: IL-II Cal. :.21; 133 Cal. 23. When physical ability must be proved. 262. No conviction for rape can be had against one who was under the age of fourteen years at the time of the act alleged, unless his physical ability to accomplish penetration is proved as an independent fact, and beyond a reasonable doubt. 98 Cal. 353. Penetration sufficient. 263. The essential guilt of rape consists in the outrage to the person and feelings of the female. Any sexual penetration, however slight, is sufficient to complete the crime. 133 Cal. 23. Punishment of rape. 264. Rape is punishable by imprisonment in the state prison not less than five years. 98 Cal. 129. Abduction of women. 265. Every person who takes any woman unlawfully, against her will, and by force, menace, or duress, compels her to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment in the state prison not less than two nor more than fourteen years. Seduction for purposes of prostitution. 266. Every person who inveigles or entices any unmarried female, of previous chaste character, under the age of eighteen years, into any house of ill-fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal con- nection with any man; and every person who aids or assists in such inveiglement or enticement; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man, is punishable by imprisonment in the state prison not exceeding five years, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment. [Amendment approved March 30, 1874; amendments 1873-4, p. 429. In effect July 1. 1874.1 49 Cal. 10; 119 Cal. 594. Abduction. 26/. Every person who takes away any female under the age of eighteen years from her father, mother, guardian, or other person having the legal charge of her person, without their con- sent, for the purpose of prostitution, is punishable by imprison- ment in the state prison not exceeding five years, and a fine not exceeding one thousand dollars. 61 Cal. 479; 71 Cal. 612; 88 Cal. 138; SS Cal. 317; 96 Cal. 318. Seduction under promise of marriage. 268. Every person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment in the state prison for not more than five years, or by a fine of not more than five thousand dollars, or by both such fine and imprison- 269-274 PENAL CODE. 538 ment. [New section approved Feb. 15th, 1889; stats. 1889, p. 12.] 93 Gal. 77; 97 Cal. 461; 118 Cal. 673; 120 Cal. 639; 123 Cal. 226. Intermarriage subsequent to seduction. 269. The intermarriage of the parties subsequent to the com- mission of the offense is a bar to a prosecution for a violation of the last section; provided, such marriage take place prior to the finding of an indictment or the filing of an information charging such offense. [New section approved February 15, 1889; stats. 1889. p. 12.] 120 Cal. 539; 123 Cal. 225. CHAPTER II. ABANDONMENT AND NEGLECT OF CHILDREN. Sec. 270. Omitting to provide child with necessaries. 271. Deserting child. 272. Disposing of child for mendicant business. Omitting to provide child with necessaries. 270. Every parent of any child who wilfully omits, without lawful excuse, to perform any duty imposed upon him by law, to furnish necessary food, clothing, shelter, or medical attendance for such child, is guilty of a misdemeanor. Desertina child. 271. Every parent of any child under the age of six years, and every person to whom any such child has been confided for nurture or education, who deserts such child in any place what- ever, with intent wholly to abandon it, is punishable by imprison- ment in the state prison not exceeding seven years, or in a county jail not exceeding one year. Disposing of child for mendicant business. 2/2. Any person, whether as parent, relative, guardian, employer, or otherwise, having in his care, custody, or control any child under the age of sixteen years, who shall sell, appren- tice, give away, let out, or otherwise dispose of any such child to any person, under any name, title, or pretense, for the vocation, use, occupation, calling, service, or purpose of singing, playing on musical instruments, rope walking, dancing, beg- ging, or peddling, in any public street or highway, or in any mendicant or wandering business whatsoever; and any person wno shall take, receive, hire, employ, use, or have in custody any child for such purposes, or either of them, is guilty of a misde- meanor. [New section approved March 3, 1876; amendments 1875-6, p. 110. In effect March 3, 1876.] CHAPTER III. ABORTIONS. Sec. 274. Administering drills, etc.. with intent to produce miscarriage. ^7r>. Submitting to an attempt to produce miscarriage. Administering drugs, etc., with intent to produce miscarriage. 274. Every person who provides, supplies, or adminsters to any pregnant woman, or procures any such woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to 539 CHILD STEALING, BIGAMY. 275-284 preserve her life, is punishable by imprisonment in the state prison not less than two nor more than five years. Submitting to an attempt to produce miscarriage. 275. Every person who solicits of any person any medicine, drug, or substance whatever, and takes the same, or who sub- mits to any operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than one nor more than five years. CHAPTER IV. CHILD STEALING. 278. Child-stealing, penalty. Child-stealing, penalty. 278. Every person who maliciously, forcibly, or fraudulently takes or entices away any minor child with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, is punishable by impris- onment in the state prison not exceeding twenty years. [Stats. 1901, p. 269.] 60 Cal. 72. CHAPTER V. BIGAMY, INCEST, AND THE CRIME AGAINST NATURE. Sec. 281. Bigamy denned. 282. Exceptions. 283. Punishment of bigamy. 284. Marrying a husband or wife of another. 285. Infest. 286. Crime against nature. 287. Penetration sufficient to complete the crime. 288. Crimes against children a felony. Bigamy defined. 281. Every person having a husband or wife living, who mar- ries any other person, except in the cases specified in the next section, is guilty of bigamy. 99 Cal. 288; Exceptions. 282. The last section does not extend 1. To any person by reason of any former marriage, whose husband or wife by such marriage has been absent for five suc- cessive years without being known to such person within that time to be living; nor, 2. To any person by reason of any former marriage which has been pronounced void, annulled, or dissolved by the judg- ment of a competent court. Punishment of bigamy. 283. Bigamy is punishable by fine not exceeding two thousand dollars and by imprisonment in the state prison not exceeding three years. Marrying a husband or wife of another. 284. Every person who knowingly and wilfully marries the husband or wife of another, in any case in which such husband or wife would be punishable under the provisions of this chapter. 285-2U2 PENAL CODE. 540 is punishable by fine not less than two thousand dollars, or by imprisonment in the state prison not exceeding three years. Incest. 285. Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit for- nication or adultery with each other, are punishable by imprison- ment in the state prison not exceeding ten years. 102 Cal. 242; 119 Cal. 458. Crime against nature. 286. Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison not less than five years. Penetration sufficient to complete the crime. 287. Any sexual penetration, hoVever slight, is sufficient to complete the crime against nature. Crimes against children a felony. 288. Any person who shall wilfully and lewdly commit any lewd or lascivious act other than the acts constituting other crimes provided for in part two of this code upon or with the body, or any part or member thereof, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be impris- oned in the state prison not less than one year. | Stats. 1901, p. 630.] CHAPTER VI. VIOLATING SEPULTURE AND THE REMAINS OF THE DEAD. Sec. 2'.io Unlawful mutilation or removal of dead bodies 2!)1. Unlawful removal of dead body from grave foi dissection, etc. 202. Who are charged with the duty of burial. 293. Punishment for omitting to bury. 204. Who are entitled to custody of a body. 20.'. Arresting or attaching a dead body. L'SMi. Defacing tombs and monuments. 2'.)T. Unlawful interments. Unlawful mutilation or removal of dead bodies. 290. Every person who mutilates, disinters, or removes from the place of sepulture the dead body of a human being without authority of law, is guilty of felony. But the provisions of this section do not apply to any person who removes the dead body of a relative or friend for reinterment. 58 Cal. 227. Unlawful removal of dead body from grave for dissection, etc. 291. Every person who removes any part of the dead body of a human being from any grave or other place where the same has been, buried, or from any place where the same is deposited while awaiting burial, with intent to sell the 'same or to dissect it, without authority of law, or from malice or wantonness, is punishable by imprisonment in the state prison not exceeding five years. Who are charged with the duty of burial. 292. The duty of burying the body of a deceased person devolves upon the persons hereinafter specified: 541 VIOLATING SEPULTURE. 293-297 1. If the deceased was a married woman, the duty of burial devolves upon her husband; 2. If the deceased was not a married woman, but left any kindred, the duty of burial devolves upon the person or persons in the same degree nearest of kin to the deceased, being of adult age, and within this state, and possessed of sufficient means to defray the necessary expenses; 3. If the deceased left no husband nor kindred answering the foregoing description, the duty of burial devolves upon the coroner conducting an inquest upon the body of the deceased, if any such inquest is held; if there is none, then upon the persons charged with the support of the poor in the locality in which the death occurs; t. In case the person upon whom the duty of burial is cast by the foregoing provisions omits to make such burial within a reasonable time, the duty devolves upon the person next speci- fied; and if all omit to act, it devolves upon the tenant; or if there is no tenant, upon the owner of the premises or master; or if there is no master, upon the owner of the vessel in which the death occurs or the body is found. 110 Cal. 88; 113 Cal. 203; 123 Cal. 289; 131 Cal. 72. Punishment for omitting to bury. 293. Every person upon whom the duty of making burial of the remains of a deceased person is imposed by law, who omits to perform that duty within a reasonable time, is guilty of a misdemeanor; and, in addition to the punishment prescribed therefor, is liable to pay to the person performing the duty in his stead treble the expenses incurred by the latter in making the burial, to be recovered in a civil action. 113 Cal. 203. Who are entitled to custody of a body. 294. The person charged by law with the duty of burying the body of a deceased person is entitled to the custody of such body for the purpose of burying it; except that in the case in which an inquest is required by law to be held upon a dead body by a coroner, such coroner is entitled to its custody until such inquest has been completed. 131 Cal. 72. Arresting or attaching a dead body. 295. Every person who arrests or attaches any dead body of a human being, upon any debt or demand whatever, or detains or claims to detain it for any debt or demand, or upon any pretended lien or charge, is guilty of a misdemeanor. Defacing tombs and monuments. 296. Every person who wilfully and maliciously defaces, breaks, destroys, or removes any tomb, monument, or gravestone, erected to any deceased person, or any memento or memorial, or any ornamental plant, tree, or shrub, appertaining to the place of burial of a human being, or who shall mark, deface, injure, destroy, or remove any fence, post, rail, or wall of any cemetery or graveyard, is guilty of a misdemeanor. Unlawful interments. 297. Every person who shall bury or inter, or cailse to be buried or interred, the dead body of any human being, or any human remains, in any place within the corporate limits of any city or town in this state, or within the corporate limits of 302-305 PENAL CODE. 542 the city and county of San Francisco, except in a cemetery, or place of burial now existing under the laws of this state, and in which interments have been made, or that is now or may hereafter be established or organized by the board of super- visors of the county, or city and county, in which such city or town, or city and county is situate, shall be guilty of a misae- meanor. [New section approved March 30, 1874; amendments 1873-4, p. 458. In effect March 30, 1874.] 60 Cal. 4. CHAPTER VII. OF CRIMES AGAINST RELIGION AND CONSCIENCE, AND OTHER OFFENSES AGAINST GOOD MORALS. Sec. 302. Disturbing religious meetings. 303. Sale of liquors at theatres, and employing women to sell liquors thereat. 304. Selling liquors at camp-meeting. 305. Limitation of preceding section. 306. Females exhibited In public places. 307. Keeping or resorting to place where opium Is used. 308. Selling tobacco to minors. 309. Admission of minor to place of prostitution. 31OJ. Barber shops open on Sunday. Disturbing religious meetings. 302. Every person who wilfully disturbs or disquiets any assemblage of people met for religious worship by noise, pro- fane discourse, rude, or indecent behavior, or by any unnecessary noise, either within the place where such meeting is held, or so near it as to disturb the order and solemnity of the meeting, is guilty of a misdemeanor. 60 Cal. 195. Sale of liquors at theaters, and employing women to sell liquors thereat. 303. Every person who sens or furnishes any malt, vinous, or spirituous liquors to any person in the auditorium or lobbies of any theater, melodeon, museum, circus, or caravan, or place where any farce, comedy, tragedy, ballet, opera, or play is being performed, or any exhibition of dancing, juggling, wax-work figures and the like is being given for public amusement, and every person who employs or procures, or causes to be employed or procured, any female to sell or fur- nish any malt, vinous, or spirituous liquors at such place, is guilty of a misdemeanor. Selling liquors at camp-meeting. 304. Every person who erects or keeps a booth, tent, stall, or other contrivance for the purpose of selling or otherwise dis- posing of any wine, or spiritous, or intoxicating liquors, or any drink of which wines, spiritous, or intoxicating liquors form a part, or for selling or otherwise disposing of any article of mer- chandise, or who peddles, or hawks about any such drink or article, within one mile of any camp or field meeting for religious worship, during the time of holding such meeting, is punishable by fine of not less than five nor more than five hundred dollars. 60 Cal. 191. Limitation of preceding section. 305. The provisions of the preceding section do not apply to any person carrying on a regular business in the sale of liquors 543 CRIMES AGAINST RELIGION. 306-309 or other articles, which business was established prior to the appointment of the meeting referred to in such section. Females exhibited in public places. 306. Every person who causes, procures, or employs any female, for hire, drink, or gain, to play upon any musical instru- ment, or to dance, promenade, or otherwise exhibit herself, in any drinking saloon, dance-cellar, ballroom, public garden, public highway, common, park, or street, or in any ship, steamboat, or railroad car, or in any place whatsoever, if in such place there is connected therewith the sale or use, as a beverage, of any intoxicating, spirituous, vinous, or malt liquors; or who shall allow the same in any premises under his control, where intoxicating, spirituous, vinous, or malt liquors are sold or used, when two or more persons are present, is punishable by a fine of not less than fifty nor more than five hundred dollars, or by imprisonment in tne county jail not exceeding three months, or by both; and every female so playing upon any musical instrument, or dancing, promenading, or exhibiting herself, as herein aforesaid, is punishable by a fine not exceeding one hun- dred dollars, or by imprisonment in the county jail not exceed- ing one month, or by both. [Amendment approved March 30, 1874; amendments 1873-4, p. 460. In effect in sixty days.] 57 Cal. 605. Keeping or resorting to place where opium is used. 307. Every person who opens or maintains, to be resorted to by other persons, any place where opium, or any of its preparations, is sold or given away, to be smoked at such place; and any person who, at such place sells or gives away any opium, or its said preparations, to be there smoked or other- wise used; .and every person who visits or resorts to any such place for the purpose of smoking opium or its said prepara- tions, is guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment. [New section approved March 4, 1881; Stats. 1881, p. 34. In effect March 4, 1881.1 73 Cal. 144. Selling tobacco to minors. 308. Every person who sells or gives or furnishes in any way to another who is in fact under the age of sixteen years, any tobacco, or preparation of tobacco, is guilty of a misde- meanor, and upon conviction thereof shall be punished by a fine not exceeding one hundred dollars; provided, however, that this section shall not be deemed to apply to articles fur- nished on prescriptions from physicians authorized by law to practice medicine, nor to persons who supply such articles to their own children, nor to sales made to such minors upon the written consent of the parents or guardians of such minors first obtained in writing by the vender. [New section added March 10, 1891; Stats. 1891, p. 64.] Admission of minor to place of prostitution. 309. Any proprietor, keeper, manager, conductor, or person having the control of any house of prostitution, or any house or room resorted to for the purpose of prostitution, who shall admit or keep any minor of either sex therein; or any parent or guardian of any such minor, who shall admit or keep such minor, or sanction, or connive at the admission or keeping 3104-312 PENAL CODE. 544 thereof, into, or in any such house, or room, shall be guilty of a misdemeanor. [New section, approved April 12, 1880; Amend- ments 1880, p. 35. In effect April 12, 1880.1 Barber shops open on Sunday. 310%. Every person who as proprietor, manager, lessee, employee, or agent keeps open or conducts, or causes to be kept open or conducted, any barber-shop, bath-house and barber-shop, barber-shop of a bathing establishment, or hair- dressing establishment, or any place for shaving or hair-dressing, used or conducted in connection with any other place of busi- ness or resort, or who engages at work or labor as a barber in any such shop or establishment on Sunday, or on a legal holiday, after the hour of 12 o'clock M. of said day, is guilty of a misdemeanor. [New section approved March 27, 1895. Stats. 1895, p. 247. In effect in sixty days.) 112 Cal. 470. CHAPTER VIII. INDECENT EXPOSURE, OBSCENE EXHIBITIONS, BOOKS, AND PRINTS, AND BAWDY AND OTHER DIS- ORDERLY HOUSES. Sec. 311. Indecent exposures, exhibitions, and pictures. 312. Seizure of Indecent articles authorized. 313. Their character to be summarily determined. 314. Their destruction. 315. Keeping or residing in a house of ill-fame. 316. Keeping disorderly houses. 317. Advertising to produce miscarriage. 318. Enticing to place of gambling or prostitution. Indecent exposures, exhibitions, and pictures. 311. Every person who wilfully and lewdly, either: One Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or, Two Procures, counsels, or assists any person so to expose himself, or to take part in any model artist exhibition, or to make any other exhibition of himself to public view, or to the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts; or, Three Writes, composes, stereotypes, prints, publishes, sells, distributes, keeps for sale, or exhibits any obscene or indecent writing, paper, or book; or designs, copies, draws, engraves, paints, or otherwise prepares any obscene or indecent pic- ture or print; or molds, cuts, casts, or otherwise makes any obscene or indecent figure; or, Four Writes, composes, or publishes any notice or advertise- ment of any such writing, paper, book, picture, print, or fig- ure; or, Five Sings any lewd or obscene song, ballad, or other words, in any public place, or in any place where there are persons pres- ent to be be annoyed .thereby; Is guilty of a misdemeanor. [Amendment approved March 30, 1874; Amendments 1873-4, p. 429. In effect July 1. 1874.1 Seizure of indecent articles authorized. 312. Every person who is authorized or enjoined to arrest ;-ny person for a violation of subdivision 3 of the last sec- 545 OBSCKNE BOOKS' DISORDERLY HOUSES. 313-318 tion, is equally authorized and enjoined to seize any obscene or indecent writing, paper, book, picture, print, or figure found in possession or under the control of the person so arrested, and to deliver the same to the magistrate before whom the parson so arrested is required to be taken. Their character to be summarily determined. 313. The magistrate to whom any obscene or indecent writ- ing, paper, book, picture, print, or figure is delivered, pursuant to the foregoing section, must, upon die examination of the accused, or, if the examination is delayed or prevented, without awaiting such examination, determine the character of such writing, paper, book, picture, print, or figure, and if he finds it to be obscene or indecent, he must deliver one copy to the district attorney of the county in which the accused is liable to indict- ment or trial, and must at once destroy all the other copies. Their destruction. 314. Upon the conviction of the accused, such district attor- ney must cause any writing, paper, book, picture, print, or figure, in respect whereof the accused stands convicted, and which remains in the possession or under the control of such district attorney, to be destroyed. Keeping or residing in a house of ill fame. 315. Every person who keeps a house of ill-rame in this state, resorted to for the purposes of prostitution or lewd- ness, or who wilfully resides in such house, is guilty of a mis- demeanor. 88 Cal. 102. Keeping disorderly houses. , 316. Every person who keeps any disorderly house, or any house for the purpose of assignation or prostitution, or any house of public resort, by which the peace, comfort, or decency of the immediate neighborhood is habitually disturbed, or who keeps any inn in a disorderly manner; and every person who lets any apartment or tenement, knowing that it is to be used for the purpose of assignation or prostitution, is guilty of a misdemeanor. [Amendment approved March 30, 1874. In effect July 1, 1874; Amendments 1873-4, p. 430.] 114 Cal. 93; 127 Cal. 15. Advertising to produce miscarriage. 317. Every person who wilfully writes, composes, or pub- lishes any notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for the prevention of conception, or who offers his services by any notice, advertisement, or otherwise, to assist in the accom- plishment of any such purpose, is guilty of a felony. [New section approved March 30, 1874; Amendments 1873-4, p. 430. In effect July 1, 1874.1 Enticing to place of gambling or prostitution. 318. Whoever, through invitation or device, prevails upon any person to visit any room, building, or other places kept for the purpose of gambling or prostitution, is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not exceeding six months, or fined not exceed- ing five hundred dollars, or be punished by both such fine CRINIES--35 319-324 PENAL CODE. 546 and imprisonment. [New section approved April 16, 1880; Amendments 1880, p. 40. In effect April 16, 1880.] CHAPTER IX. LOTTERIES. Sec. 319. Lottery defined. 320. Punishment for drawing lottery. 321. Punishment for selling lottery tickets. 322. Aiding lotteries. 323. Lottery offices. Advertising lottery offices. 324. Insuring lottery tickets. Publishing offers to Insure. 325. Property offered for disposal in lottery forfeited. 326. Letting building for lottery purposes. Lottery defined. 319. A lottery is any scheme for the disposal or distribu- tion of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it, or for any share or any interest in such property, upon any agreement, understand- ing, or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle, or gift enter- prise, or by whatever name the same may be known. 68 Cal. 289; 70 Cal. 633. Punishment for drawinq lottery. 320. Every person who contrives, prepares, sets up, pro- poses, or draws any lottery, is guilty of a misdemeanor. 91 Cal. 440. Punishment for selling lottery tickets. 321. Every person who sells, giyes, or in any manner what- ever, furnishes or transfers to or for ..ny other person any ticket, chance, share, or interest, or any paper, certificate, or instrument purporting or understood to be or to represent any ticket, chance, share, or interest in, or depending upon the j event of any lottery, is guilty of a misdemeanor. 70 Cal. 633; 92 Cal. 652. Aiding lotteries. 322. Every person who aids or assists, either by printing, > writing, advertising, publishing, or otherwise in setting up, managing, or drawing any lottery, or in selling or disposing of any ticket, chance, or share therein, is guilty of a misde- meanor. Lottery offices. Advertising lottery offices. 323. Every person who opens, sets up, or keeps, by himself or by any other person, any office or other place for the sale of, or for registering the number of any ticket in any lottery, or who, by printing, writing, or otherwise, advertises or pub- lishes the setting up, opening, or using of any such office, Is guilty of a misdemeanor. Insuring lottery tickets. Publishing offers to insure. 324. Every person who insures or receives any consideration for insuring for or against the drawing of any ticket in any lottery whatever, whether drawn or to be drawn within this state or not, or who receives any valuable consideration upon any agreement to repay any sum, or deliver the same, or any other property, if any lottery ticket or number of any ticket 547 LOTTERIES GAMING. 325-330 In any lottery shall prove fortunate or unfortunate, or shall be drawn or not be drawn, at any particular time or in any par- ticular order, or who promises or agrees to pay any sum or money, or to deliver any goods, things in action, or property, or to forbear to do anything for the benefit of any person, with or without consideration, upon any event or contingency depend- ent on the drawing of any ticket in any lottery, or who pub- lishes any notice or proposal of any of the purposes aforesaid, is guilty of a misdemeanor. Property offered for disposal in lottery forfeited. 325. All moneys and property offered for sale or distribu- tion in violation of any of the provisions of this chapter are forfeited to the state, and may be recovered by information filed, or by an action brought by the attorney-general, or by any district attorney, in the name of the state. Upon the fil- ing of the information or complaint, the clerk of the court, or if the suit be in a justice's court, the justice, must issue an attach- ment against the property mentioned in the complaint or information, which attachment has the same force and effect against such property, and is issued in the same manner as attachments issued from the district courts in civil cases. Letting building for lottery purposes. 326. Every person who lets, or permits to be used, any build- ing or vessel, or any portion thereof, knowing that it is to be used for setting up, managing, or drawing any lottery, or for the purpose of selling or disposing of lottery tickets, is guilty of a misdemeanor. 68 Cal. 2S9; 91 Cal. 440; 93 Gal. 439. CHAPTER X. GAMING. Sec. 330. Gaming prohibited. Penalty. 331. Permitting gambling in houses owned or rented. 332. Winning at play by fraudulent means. 333. Witnesses neglecting or refusing to attend trial. 334. Witness' privilege. 335. Duties of district attorneys, sheriffs, and others. 336. Permitting minor to play in saloon. 337. Pretending to. give authority to conduct games. Gaming prohibited. Penalty. 330. Every person who deals, plays, or carries on, opens, or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noir, rondo, tan, fan-tan, stud- horse poker, seven-and-a-half, twenty-one, hokey-pokey, or any banking or percentage game played with cards, dice, or any device, for money, checks, credit, or other representative of value, and every person who plays or bets at or against any of said prohibited games, is guilty of a misdemeanor, and shall be punishable by a fine not less than one hundred dollars nor not more than five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment. [Amendment approved March 10, 1891; Stats. 1891, p. 57.] 47 Cal. 127; r>3 Cal. 247; 60 Cal. 82; 63 Cal. 299; 64 Cal. 157; 70 Cal. 516; 80 Cal 155; 82 Cal. 182; 84 Cal. 166; 85. Cal. 581; 86 Cal. 233; 128 Cal. 29. 331-o37 PENAL CODE. 548 Permitting gambling in houses owned or rented. 331. Every person who knowingly permits any of the games mentioned in the preceding section to be played, conducted, or dealt in any house owned or rented by such person, in whole or in part, is punishable as provided in the preceding section. Winning at play by fraudulent means. 332. Every person who by the game of "three-card monte," so-called, or any other game, device, sleight of hand, preten- sions to fortune-telling, trick, or other means whatever, by use of cards or other implements or instruments, or while bet- ting on sides or hands of any such play or game, fraudulently obtains from another person money or property of any descrip- tion, shall be punished as in case of larceny of property of like value. [Amendment approved April 16, 1880; Amendments 1880, p. 40. In effect April 16, 1880.] 107 Cal. 152; 110 Cal. 601; 122 Cal. 357. Witnesses neglecting or refusing to attend trial. 333. Every person duly summoned as a witness for the prose- cution, on any proceedings had under this chapter, who neg- lects or refuses to attend, as required, is guilty or a misde- meanor. Witness' privilege. 334. No person, otherwise competent as a witness, is dis- qualified from testifying as such concerning the offense of gam- ing, on the ground that such testimony may criminate him- self; but no prosecution can afterwards be had against him for any offense concerning which he testified. Duties of district attorneys, sheriffs, and others. 335. Every district attorney, sheriff, constable, or police officer must inform against and diligently prosecute persons whom they have reasonable cause to believe offenders against the provisions of this chapter, and every such officer refusing or neglecting so to do, is guilty of a misdemeanor. Permitting minor to play in saloon. 336. Every owner, lessee, or keeper of any house used in whole, or in part, as a saloon or drinking-place, wjio know- ingly permits any person under twenty-one years of age to play at any game of chance therein, is guilty of a misdemeanor. [New section approved March 24, 1874; Amendments 1873-4, p. 461. In effect in sixty days.] Pretending to give authority to conduct games. 337. Every state, county, city, city and county, town, or township officer, or other person who shall ask for, receive, or collect any money, or other valuable consideration, either for his own or the public use, for and with the understanding that he will aid, exempt, or otherwise assist any person from arrest or* conviction for a violation of section three hundred and thirty of the Penal Code; or who shall issue, deliver, or cause to be given or delivered to any person or persons, any license, permit, or other privilege, giving, or pretending to give, any authority or right to any person or persons to ca^ry on, conduct, open, or cause to be opened, any game or games which are forbidden or prohibited by section three hundred and thirty of said Code; and any of such officer or officers who shall vote for the pass- 549 PAWNBROKERS. 338-342 age of any ordinance or by-law, giving, granting, or pretend- ing to give or grant to any person or persons any authority or privilege to open, carry on, conduct, or cause to be opened, carried on, or conducted, any game or games prohibited by said section three hundred and thirty of the Penal Code, is guilty of a felony. [New section approved March 12, 1885. Stats. 1885, p. 113.] CHAPTER XI. PAWNBROKERS. Sec. .'{.'is. I'.'iwnbrokiug without license. :;:;!!. railing to keep a register. 340. Charging unlawful rate of interest. 341. Selling before time of redemption has expired, or without notice. 342. Refusing to disclose particulars of sale. 343. Refusing to allow an officer with search-warrant to inspect register of pledged articles. 344. Junk dealers, application of code sections to. Pawnbroking without license. 338. Every person who carries on the business of a pawn- broker, "by receiving goods in pledge for loans at any rate of interest above the rate of ten per cent, per annum, except by authority of a license, is guilty of a misdemeanor. Failing to keep a register. 339. Every person who carries on the business of a pawn- broker, who fails at the time of the transaction to enter in a register kept by him for that purpose, in the English language, the date, duration, amount, and rate of interest of every loan made by him, or an accurate description of the property pledged, or the name and residence of the pledgor, or to deliver to the pledger a written copy of such entry, or to keep an account in writing of all sales made by him, is guilty of a misdemeanor. Charging unlawful rate of interest. 340. Every pawnbroker who charges or receives interest at the rate of more than two per cent, per month, or who by charging commissions, discount, storage, or other charge, or by compounding increases, or attempts to increase, such interest, is guilty of a misdemeanor. [Amendment, approved March 7, 1881; Amendments 1881, p. 75. In effect March 7, 1881.] 67 Cal. 360. Selling before time of redemption has expired, or without no- tice. 341. Every pawnbroker who sells any article pledged to him and unredeemed, until it has remained in his possession six months after the last day fixed by contract for redemption, or who makes any sale without publishing in a newspaper printed in the city, town, or county, at least five days before such saio, a notice containing a list of the articles to be sold, and specify- ing the time and place of sale, is guilty x of a misdemeanor. Refusing to disclose particulars of sale. 342. Every pawnbroker who wilfully refuses to disclose to the pledgor or his agent the name of the purchaser and the price received by him for any article received by him in pledge and subsequently sold, or who, after deducting from the pro- 343-347 PENAL CODE. 550 ceeds of any sale the amount of the loan and interest due thereon, and four per cent, on the loan for expenses of sale, refuses, on demand, to pay the balance to the pledger or his agent, is guilty of a misdemeanor. Refusing to allow an officer with search warrant to inspect register of pledged articles. 343. Every pawnbroker who fails, refuses, or neglects to pro- duce for inspection his register, or to exhibit all articles received fcy him in pledge, or his account of sales, to any officer hold- ing a warrant authorizing hijn to search for personal property, or the order of a committing magistrate directing such officer to inspect such register, or examine such articles or account of sales, is guilty of a misdemeanor. Junk dealers, application of code sections to. 344. Sections three hundred and thirty-nine, and three hun- dred and forty-two, and three hundred and forty-three of the Penal Code are applicable to the persons carrying on the busi- ness of junk dealers, their clerks, employees, or servants, and to persons acting as brokers or commission agents for such persons, and apply to their transactions of purchase and sale as well as to those of pledge or mortgage. [Stats. 1901, p. 75.] CHAPTER XII. OTHER INJURIES TO PERSONS. Sec. 346. Acts of intoxicated physicians. 347. Wilfully poisoning food, medicine, or water. 348. Mismanagement of steamboats. 349. Mismanagement of steam-boilers. 350. Counterfeiting trade-marks. 351. Selling goods which bear counterfeit trade-marks. 352. Definition of the phrase "counterfeited trade-marks." etc. 353. "Trade-mark" defined. 354. Refilling casks, etc., bearing trade-mark. 3543. Selling or refilling casks, etc., containing trade-mark. 354J. Destroying or defacing trade-mark. 355. Defacing marks upon wrecked property and destroying bills of lading. 356. Defacing marks upon logs, lumber, or wood. 357. Changing or defacing marks or brands on domestic animals. 357J. Same. 358. Frauds in affairs of special partnership. 359. Contracting or solemnizing incestuous or forbidden marriages. 360. Making false return or record of marriage. 361. Cruel treatment of lunatics, etc. 362. Refusing to issue or obey writ of habeas corpus. 363. Reconfining persons discharged upon writ of habeas corpus. 364. Concealing persons entitled to benefit of habeas corpus. 365. Innkeepers and carriers refusing to receive guests. 366. Counterfeiting quicksilver stamps. 367. Selling debased quicksilver. Acts of intoxicated physicians. 346. Every physician who, in a state of intoxication, does any act as such physician to another person by which the life of such other person is endangered, is guilty of a misdemeanor. Wilfully poisoning food, medicine, or water. 347. Every person who wilfully mingles any poison with any food, drink, or medicine, with intent that the same shall be taken by any human being, to his injury, and every person who 551 OTHER INJURIES TO PERSONS. 348-351 wilfully poisons any spring, well, or reservoir of water, is pun- ishable by imprisonment in the state prison for a term not less than one nor more than ten years. Mismanagement of steamboats. 348. Every captain or other person having charge of any steamboat used for the conveyance of passengers, or of the boilers and engines thereof, who, from ignorance or gross neg- lect, or for the purpose of excelling any other boat in speed, creates, or allows to be created, ' such an undue quantity of steam as to burst or break the boiler, or any apparatus or machinery connected therewith, by which bursting or breaking human life is endangered, is guilty of a felony. [Amendment approved March 30, 1874; Amendments 1873-4, p. 431. In effect July 1, 1874.] Mismanagement of steam-boilers. 349. Every engineer or other person having charge of any steam-boiler, steam-engine, or other apparatus for generating or employing steam, used in any manufactory, railway, or other mechanical works, who wilfully, or from ignorance, or gross neglect, creates, or allows to be created, such an undue quantity of steam as to burst or break the boiler or engine, or apparatus, or cause any other accident whereby human life is endangered, is guilty of a felony. [Amendment approved March 30, 1874; Amendments, 1873-4, p. 431. In effect July 1, 1874.] Counterfeiting trademarks. 350. Every person who wilfully reproduces, copies, imitates, forges, or counterfeits, or procures to be reproduced, copied, imitated, forged, or counterfeited, any trademark usually affixed by any person to his goods, which has been duly recorded In the office of the secretary of state, or with the commissioner of patents in the United States patent office, or any label or brand, composed in whole or in part of a reproduction of said trademark, or who affixes the same to goods of essentially the same descriptive properties and qualities as those referred to in the registration of such trademark, with intent to pass off, or to assist other persons to pass off, any goods to which such reproduced, copied, imitated, forged, or counterfeited trademark, or label, or brand is affixed, or intended to be affixed, as the goods of the person, firm, company, or corporation owning the said trademark, is guilty of a misdemeanor. [Amendment approved March 27, 1897; Stats. 1897, p. 212.] Selling goods which bear counterfeit trademarks. 351. Every person who sells, or keeps for sale, or manufac- tures or prepares, for the purpose of sale, any goods upon or to which any reproduced, copied, imitated, forged, or counter- feited trademark, or label, or brand, composed in whole or in part of such a reproduced, copied, imitated, forged, or counter- feited trademark, has been affixed, after such trademark has been recorded in the office of the secretary of state, or with the commissioner of patents in the United States patent office, intending to represent such goods as the genuine goods of the person, firm, company, or corporation owning tne said trade- mark, knowing the same to be reproduced, copied, imitated, forged, or counterfeited, is guilty of a misdemeanor. [Amend- ment approved March 27, 1897; Stats. 1897, p. 213.] 352-3543 PENAL CODE. 552 Definition of the phrase "counterfeited trademark," etc. 352. The phrases "forged trademark" and "counterfeited trademsrk," or their equivalents, as used in this chapter, include every alteration or imitation of any trademark so resembling the original as to be likely to deceive. "Trademark" defined. 353. The phrase "trademark," as used in the three preced- ing sections, includes every description of word, letter, device, emblem, stamp, imprint, brand, printed ticket, label, or wrap- per usually affixed by any mechanic, manufacturer, druggist, merchant, or tradesman, to denote any goods to be goods imported, manufactured, produced, compounded, or sold by him, other than any name, word, or expression generally denoting any goods to be of some particular class or description. Refilling casks, etc., bearing trademark. 354. Every person who has in his possession, or who uses any cask, bottle, vessel, case, cover, label, brand, or other thing bearing, or having in any .way connected with it, the trademark of another, which has been duly recorded in the office of the secretary of state, or with the commissioner of patents in the United States patent office, or the trade name of another, for the purpose of disposing of any article other than that which such cask, bottle, vessel, case, cover, label, brand, or other thing originally contained, or is connected with by the owner of such trademark or trade name, with intent to deceive or defraud, is guilty of a misdemeanor. [Amendment approved March 27, 1897; Stats. 1897, p. 213.1 Selling or refilling casks, etc., containing trademark. 354%. Every person who wilfully sells, or traffics in any cask, keg, bottle, vessel, siphon, can, case, or other package bearing the duly filed trademark or name of another, printed, branded, stamped, engraved, etched, blown, or otherwise attached or produced thereon, or refills any such cask, keg, bottle, vessel, siphon, can, case, or other package with intent to defraud the owner thereof, without the consent of the owner thereof, or unless the same shall have been purchased from the owner thereof, is guilty of a misdemeanor. [In effect sixty days from March 14, 1899; Stats. 1899, p. 103.] Destroying or defacinn trademark. 354%. Every person who shall wilfully deface, erase, oblit- erate, cover up, or otherwise remove, destroy, or conceal the duly filed trademark or name of another, printed, branded, stamped, engraved, etched, blown, impressed, or otherwise attached to, or produced upon any cask, keg, bottle, vessel, siphon, can, case, or other package, for the purpose of selling or trafficking in such cask, keg, bottle, vessel, siphon, can, case, or other package, or refilling such cask, keg. bottle, vessel, siphon, can, case, or other package, with intent to defraud the owner thereof, without the consent of the owner, or unless the same shall have been purchased from the owner, is guilty ~f a misdemeanor. [In effect sixty days from March 9, 1899; Stats. 1899, p. 87.1 553 OTHER INJURIES TO PERSONS. 355-862 Defacing marks upon wrecked property and destroying bills of lading. 355. Every person who defaces or obliterates the marks upon wrecked property, or in any manner disguises the appearance thereof, with intent to prevent the owner from discovering its identity, or who destroys or suppresses any invoice, bill of lading, or other document tending to show the ownership, is guilty of a misdemeanor. Defacing marks upon logs, lumber or wood. 356. Every person who cuts out, alters, or defaces any mark made upon any log, lumber, or wood, or puts a false mark thereon with intent to prevent the owner from discovering its identity, is guilty of a misdemeanor. 128 Cal. 443. Changing or defacing marks or brands on domestic animals. 357. Every person who marks or brands, alters, or defaces the mark or brand of any horse, mare, colt, jack, jennet, mule, laull, ox, steer, cow, or calf belonging to another, with intent thereby to steal the same, or to prevent identification thereof by the true owner, is punishable by imprisonment in the state's prison for not less than one nor more than five years. [Stats. 1901, p. 329.] Same. 357y 2 . Every person who marks or brands, alters or defaces the mark or brand of any sheep, goat, hog, shoat, or pig belong- ing to another, with intent thereby to steal the sapae, or to prevent identification thereof by the true owner, is guilty of a misdemeanor. [Stats. 1901, p. 327.] Frauds in affairs of special partnership. 358. Every member of a special partnership who commits any fraud in the affairs of the partnership, is guilty of a mis- demeanor. Contracting or solemnizing incestuous or forbidden marriages. 359. Every person authorized to solemnize marriage, who wil- fully and knowingly solemnizes any incestuous or other mar- riage forbidden by law, is punishable by fine of not less than one hundred nor more than one thousand dollars, or by imprison- ment in the county jail not less than three months, nor more than one year, or by both. ;:, cai. 12. Making false return or record of marriage. 360. Every person authorized to solemnize any marriage, who wilfully makes a false return of any marriage or pretended mar- riage to the recorder, and every person who wilfully makes a false record of any marriage return, is punishable as provided in the preceding section. 75 Cal. 12. Cruel treatment of lunatics, etc. 361. Every person guilty of any harsh, cruel, or unkind treatment of, or any neglect of duty towards, any idiot, lunatic, or insane person, is guilty of a misdemeanor. Refusing to issue or obey writ of habeas corpus. 362. Every officer or person to whom a writ of habeas corpus 363-367 PENAL CODE. 554 may be directed, who, after service thereof, neglects or refuses to obey the command thereof, is guilty of a misdemeanor. Reconfining persons discharged upon writ of habeas corpus. 363. Every person who, either solely or as member ot a court, knowingly and unlawfully recommits, imprisons, or restrains of his liberty, for the same cause, any person who has been discharged upon a writ of habeas corpus, is guilty of a misdemeanor. Concealing persons entitled to benefit of habeas corpus. 364. Every person having in his custody, or under his restraint or power, any person for whose relief a writ of habeas corpus has been issued, who, with the intent to elude the service of such writ or to avoid the effect thereof, transfers such person to the custody of another, or places him under tne power or control of another, or conceals or changes the place of his confinement or restraint, or removes him without the jurisdic- tion of the court or judge issuing the writ, is guilty of a mis- demeanor. Innkeepers and carriers refusing to receive guests. 365. Every person, and every agent or officer of any corpora- tion carrying on business as an inn-keeper, or as a common carrier of passengers, who refuses, without just cause or excuse, to receive and entertain any guest, or to receive and carry any passenger, is guilty of a misdemeanor. Counterfeiting quicksilver stamps. 366. Every person who counterfeits, or who wilfully uses the counterfeited seal or stamp of any person engaged in manufac- turing or selling quicksilver, is guilty of a felony. Selling debased quicksilver. 367. Every person who wilfully sells, or offers for sale as pure, any debased or adulterated quicksilver, is guilty of a mis- demeanor. 555 CRIMES AGAINST PUBLIC HEALTH. 368-369 1 TITLE X. OF CRIMES AGAINST THE PUBLIC HEALTH AND SAFETY. Sec. 368. Death from explosions, etc. 369. Death from collision on railroads. 370. "Public nuisances" defined. 371. Unequal damage. :'.72. Maintaining a nuisance, a misdemeanor. 373. Establishing or keeping pest-houses within cities, towns, etc. 374. Putting dead animals in streets, rivers, etc. 374J. Discharging coal tar, etc., into water. 375. Keeping gunpowder, etc., unlawfully. 376. Violation of quarantine laws by masters of vessels. 377. Wilful violation of health laws. 378. Neglecting to perform duties under health law. 379. Unlicensed piloting. 380. Apothecary omitting to label drugs, or labeling them wrong- fully, etc. 381. Putting extraneous substances in packages of goods usually sold by weight, with intent to increase weight. 381a. Penalty for rendering inaccurate, incorrect, or false tests as to dairy products. 382. Adulterating foods, drugs, Honors, etc. 383. Disposing of tainted food, etc. 384. Setting woods on fire. 385. Obstructing attempts to extinguish fires. 386. Maintaining bridge or ferry without authority. 387. Violating condition of undertaking to keep ferry. 388. Riding on driving faster than a walk on toll-bridges. 389. Crossing toll-bridges, etc., without paying toll. 390. Engineer of locomotive engine omitting to ring bell when crossing highway. 391. Intoxication of engineers, conductors, or drivers of locomotives or cars. 392. Placing passenger cars in front of freight cars. 393. Violation of duty of employees of railroad companies. 394. Exposing person infected with any contagious disease In a public place. 395. Frauds practiced to affect the market price. 396. Racing upon highways 397. Selling liquor to Indian or common drunkard. 398. Selling firearms and ammunition to Indians. 399. Death from mischievous animals. 400. Exhibiting deformities of person. 400. Aiding or encouraging suicide a felony. 402. Using or exposing animals with glanders. 402J. Animal having glanders to be killed. 402J. Adulterating candy. Death from explosions, etc. 368. Every person having charge of any steam-boiler or steam-engine, or other apparatus for generating or employing steam, used in any manufactory, or on any railroad, or in any vessel, or in any kind of mechanical work, who wilfully, or from ignorance or neglect, creates, or allows to be created, such an undue quantity of steam as to burst or break the boiler, engine, or apparatus, or to cause any other accident whereby the death of a human being is produced, is punishable by imprisonment in the state prison for not less than one nor more than ten years. Death from collision on railroads. 369. Every conductor, engineer, brakeman, switchman, or other person having charge, wholly or in part, of any railroad, car, locomotive, or train, who wilfully or negligently suffers or causes the same to collide with another car, locomotive, or train, or with any other object or thing whereby the death of a human being is produced, is punishable by imprisonment in the state prison for not less than one nor more than ten years* 570-374 PKNAL CODE. 556 "Public nuisances" defined. 370. Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any nav- igable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance. [Amend- ment approved March 30, 1874; Amendments 1873-4, p. 431. In effect July 1, 1874.1 68 Cal. 413; 72 Cal. 53; 87 Cal. 92; 92 Cal. 574; 107 Cal. 481; 113 Cal. 150; 116 Cal. 399; 121 Cal. 513. Unequal damage. 371. An act which affects an entire community or neighbor- hood, or any considerable number of persons, as specified in the last section, is not less a nuisance because the extent of the annoyance or damage inflicted upon individuals is unequal. [Amendment approved March 30, 1874; Amendments 1873-4, p. 432. In effect July 1, 1874.] Maintaining a nuisance, a misdemeanor. 372. Every person who maintains or commits any public nui- sance, the punishment for which is not otherwise prescribed, or who wilfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor. 72 Cal. 53; 87 Cal. 92; 92 Cal. 574. Establishing or keeping pest-houses within cities, towns, etc. 373. Every person who establishes or keeps, or causes to be established or kept, within the limits of any city, town, or vil- lage, any pest-house, hospital, or place for persons affected with contagious or infectious diseases, is guilty of a misdemeanor. Putting dead animals in streets, rivers, etc. 374. Every person who puts the carcass of any dead animal, or the offal from any slaughter pen, corral, or butcher-shop, into any river, creek, pond, reservoir, stream, street, alley, public highway, or road in common use, or who attempts to destroy the same by fire within one-fourth of a mile of any city, town, or village, except it be in a cemetery, the construction and operation of which is satisfactory to the board of health in such city, town, or village; and any persou who puts any water-closet or privy, or the carcass of any dead animal, or any offal of any kind, in or upon the borders of any stream, pond, lake, or reservoir from which water is drawn for the supply of the inhabitants of any city, city and county, or any town in this state, so that the drainage from such water-closet, privy, car- cass, or offal may be taken up by or in such stream, pond, lake, or reservoir; or who allows any water-closet or privy, or car- cass of any dead animal, or any offal of any kind, to remain in or upon the borders of any such stream, pond, lake, or reser- voir within the boundaries of any land owned or occupied by him, so that the drainage from such water-closet, privy, car- cass, or offal may be taken up by or in such stream, pond, lake, or reservoir; or who keeps any horses, mules, cattle, swine, sheep, or livestock of any kind, penned, corralled, or housed on, over, or on the borders of any such stream, pond, lake, or 557 CRIMES AGAINST PUBLIC HEALTH. 374^-377" reservoir, so that the waters thereof shall become polluted by reason thereof; or who bathes in any such stream, pond, lake, or reservoir; or who by any other means fouls or pollutes the waters of any such stream, pond, lake, or reservoir, Is guilty of a misdemeanor, and upon conviction thereof shall be pun- ished as prescribed in section three hundred and seventy-seven of this code. [Amendment approved March 3, 1893; Stats. 1893, p. 66. In effect immediately.] 105 Cal. 637; 107 Cal. 226; 115 Oal. 450. Discharging coal tar, etc., into water. 374y 2 . Every person, firm, association, or corporation which shall discharge or deposit, or shall cause or suffer to be dis- charged or deposited, or to pass, in or into the waters of any navigable bay, or river, in this state, any coal tar or refuse or residuary product of coal, petroleum, asphalt, bitumen, or other carbonaceous material or substance, is guilty of a misdemeanor, and for each offense is punishable by imprisonment in the county jail for not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment. [Stats. 1901, p. 813.] Keeping gunpowder, etc., unlawfully. 375. Every person who makes or keeps gun-powder, nitro- glycerine, or other highly explosive substance, within any city or town, or who carries the same through the streets thereof, in any quantity or manner such as is prohibited by law, or by any ordinance of such city or town, is guilty of a misdemeanor. Violation of quarantine laws by masters of vessels. 376. Every master of a vessel subject to quarantine or visita- tion by the quarantine officer, arriving in the port of San Fran- cisco, who refuses or omits: 1. To proceed with and anchor his vessel at the place assigned for quarantine at the time of his arrival; or 2. To submit his vessel, cargo, and passengers to the exam- ination of the quarantine officer, and to furnish all necessary information to enable that officer to determine to what length of quarantine and other regulations they ought, respectively, to be subject; or 3. To remain with his vessel at the quarantine during the period assigned for her quarantine, and while at quarantine to comply with the regulations prescribed by law, and with such as any of the officers of health, by virtue of authority given them by law, shall prescribe in relation to his vessel, his cargo, himself, his passengers or crew is punishable by imprison- ment in the county jail not exceeding one year, or by fine not exceeding two thousand dollars, or both. [Amendment approved March 9, 1878; Amendments 1877-8, p. 116. In effect March 9, 1878.] Wilful violation of health laws. 377. Every person who is charged with a duty relating to the registration of deaths, under chapter three, title seven, of the act to establish a Political Code, approved March twelfth, 1872, who 1. Wilfully fails to keep a registry of the name, age, residence, and time of death of a decendent; or, 2. Wilfully fails to register with the county recorder a certi- 378-381 PENAL CODE. 558 fled copy of such register, as is provided for in said chapter; or, 3. Wilfully inters, cremates, or otherwise disposes of any human body, in any city, county, or city and county, without having first obtained a permit, as provided for in said chapter; or, 4. Wilfully grants a permit for the interment, cremation, or disposition of a dead human body, without the certificate pro- vided for in said chapter; or, 5. Wilfully violates any of the laws of this state relating to the preservation of the public health; Is guilty of a misdemeanor, and is, unless a different punish- ment for such violation is prescribed by this code, punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment. [Amendment approved February 25, 1889; Stats. 1889, p. 34.] 68 Cal. 413; 84 Cal. 306. Neglecting to perform duties under health law. 378. Every person charged with the performance or any duty under the laws of this state relating to the preservation of the public health, who wilfully neglects or refuses to perform the same, is guilty of a misdemeanor. 84 Cal. 310. Unlicensed piloting. 379. Every person, not the master or owner, or not author- ized to act as pilot under the laws of this state, who pilots or offers to pilot any vessel to or from any port of this state for which there are commissioned or licensed pilots, or who pilots or offers to pilot any vessel to or from any port other than that for which he is commissioned or licensed, and for which there are pilots so commissioned or licensed, i^ guilty of a misde- meanor. [Amendment approved March 30, 1874; Amendments 1873-4, p. 432. In effect July 1, 1874.] Apothecary omitting to label drugs, or labeling them wrong- fully, etc. 380. Every apothecary, druggist, or person carrying on busi- ness as a dealer in drugs or medicines, or person employed as clerk or salesman by such person, who, in putting up any drugs or medicines, or making up any prescription, or filling any order for drugs or medicines, wilfully, negligently, or ignorantly omits to label the same, or puts an untrue label, stamp, or other designation of contents, upon any box, bottle, or other package containing any drugs or medicines, or substitutes a different article for any article prescribed or ordered, or puts up a greater or less quantity of any article than that prescribed or ordered, or otherwise deviates from the terms of the pre- scription or order which he undertakes to follow, in consequence of which human life or health is endangered, is guilty of a misdemeanor, or if death ensues, is guilty of a felony. Putting extraneous substances in packages of goods usually sold by weight, with intent to increase weight. 381. Every person who, in putting up in any bag, bale, box, barrel, or other package, any hops, cotton, wool, grain, hay, or other goods usually sold in bags, bales, boxes, barrels, or packages by weight, puts in or conceals therein anything what- 559 CRIMES AGAINST PUBLIC HEALTH. 381 a- 386 ever, for the purpose of increasing the weight of such bag, bale, box, barrel, or package, with intent thereby to sell the goods therein or to enable another to sell the same, for an increased weight, is "punishable by fine of not less than twenty-five dollars for each offense. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 432. In effect July 1, 1874.] Penalty for rendering inaccurate, incorrect, or false tests as to dairy products. 381 a. Any person, or persons, whether as principals, agents, managers, or otherwise, who buy or sell dairy products, or deal in milk, cream or butter, and who buy or sell the same upon the basis of their richness or weight or the percentage of cream, or butter-fat contained therein, who use any apparatus, test bottle or other appliance, or who use the "Babcock test" or machine of like character for testing such dairy products, cream or butter, which is not accurate and correct, or which gives wrong or false percentages, or which is calculated in any way to defraud or injure the person with whom he deals, is guilty of a misdemeanor, and upon conviction shall be fined not more than five hundred dollars ($500.00) or imprisoned in the county jail not more than six (6) months. [Stats. 1901, p. 324.] Adulterating food, drugs, liquors, etc. 382. Every person who adulterates or dilutes any article of food, drink, drug, medicine, spirituous or malt liquor, or wine, or any article useful in compounding them, with a fraudulent intent to offer the same or cause or permit it to be offered for sale as unadulterated or undiluted, and every person who fraud- ulently sells, or keeps or offers for sale the same, as unadul- terated or undiluted, is guilty of a misdemeanor. Disposing of tainted food, etc. 383. Every person who knowingly sells, or keeps or offers for sale, or otherwise disposes of any article of food, drink, drug, or medicine, knowing that the same has become tainted, decayed, spoiled, or otherwise unwholesome or unfit to be eaten or drank, with intent to permit the same to be eaten or drank, is guilty of a misdemeanor. 126 Cal. 367. Setting woods on fire. 384. Every person who wilfully or negligently sets on fire, or causes or procures to be set on fire, any woods, prairies, grasses, or grain, on any lands, is guilty of a misdemeanor. 90 Cal. 107; 98 Cal. 270. Obstructing attempts to extinguish fires. 385. Every person who, at the burning of a building, dis- obeys the lawful orders of any public officer or fireman, or offers any resistance to or interference with the lawful efforts of any fireman or company of firemen to extinguish the same, or engages in any disorderly conduct calculated to prevent the same from being extinguished, or who forbids, prevents, or dissuades others from assisting to extinguish the same, is guilty of a misde- meanor. Maintaining bridge or ferry without authority. 386. Every person who demands or receives compensation for the use of any bridge or ferry, or sets up or keeps any road, PKNAL CODE. 560 bridge, ferry, or constructed ford for the purpose of receiving any remuneration for the use of the same, without authority of law, is guilty of a misdemeanor. Violating condition of undertaking to keep ferry. 387. Every person who, having entered into an undertaking to keep and attend a ferry, violates the conditions of such under- taking, is guilty of a misdemeanor. Riding or driving faster than a walk on toll-bridges. 388. Every person who wilfully rides or drives raster than a walk on or over any toll-bridge, lawfully licensed, is punishable by fine not exceeding twenty dollars. Crossing toll-bridges, etc., without paying toll. 389. Every person not exempt from paying tolls, wno crosses on any ferry or toll-bridge, or passes through any toll-gate, law- fully kept, without paying the toll therefor, and with intent to avoid such payment, is punishable by fine not exceeding twenty dollars. Engineer of locomotive engine omitting to ring bell when cross- ing highway. 390. Every person in charge of a locomotive engine who, before crossing any traveled public way, omits to cause a bell to ring or steam-whistle to sound at the distance of at least eighty rods from the crossing, and up to it, is guilty of a mis- demeanor. Intoxication of engineers, conductors, or drivers of locomotives or cars. 391. Every person who is intoxicated while in charge of a locomotive engine, or while acting as conductor or driver upon any railroad train or car, whether propelled by steam or drawn by horses, or while acting as train dispatcher or as telegraph operator, receiving or transmitting dispatches in relation to the movement of trains, is guilty of a misdemeanor. Placing passenger cars in front of freight cars. 392. Every person who, in making up or running railroad trains, places or runs, or causes to be placed or run, any freight car in the rear of passenger cars, is guilty of a misdemeanor, and if loss of life or limb results from such placing or running, is guilty of felony. The term "freight car, as used in this sec- tion, does not include a baggage, express, or mail car. Violation of duty of employees of railroad companies. 393. Every engineer, conductor, brakeman, switch-tender, or other officer, agent, or servant of any railroad company, who is guilty of any wilful violation or omission of his duty as such officer, agent, or servant, whereby human life or safety is endangered, the punishment of which is not otherwise prescribed, is guilty of a misdemeanor. Exposing person infected with any contagious disease in a public place. 394. Every person who wilfully exposes himself or another afflicted with any contagious or infectious disease, ..i any public place or thoroughfare, except in his necessary removal in a manner the least dangerous to the public health, is guilty of a misdemeanor. 561 CRIMES AGAINST PUBLIC HEALTH. 395-402 Frauds practiced to affect the market price. 395. Every person who wilfully makes or publishes any false statement, spreads any false rumor, or employs any other false or fraudulent means or device, with intent to affect the market price of any kind of property, is guilty of a misdemeanor. Racing upon highways. 396. Every person driving any conveyance drawn by horses, upon any public road or way, who causes or suffers his horses to run, with intent to pass another conveyance, or to prevent such other from passing his own, is guilty of a misdemeanor. Selling liquor to Indian or common drunkard. 397. Every person who sells or furnishes, or causes to be sold or furnished, any intoxicating liquors to any habitual or com- mon drunkard, is guilty of a misdemeanor; or who sells or furnishes, or causes to be sold or furnished, intoxicating liquors to any Indian, is punishable by imprisonment in the state prison, or in a county jail, not exceeding two years, or by a fine not exceeding one thousand dollars, or both. [Amendment approved February 25, 1897; Stats. 1897, p. 29.] 105 Cal. 345; 113 Cal. 174; 113 Cal. 178. Selling firearms and ammunition to Indians. 398. Every person who sells or furnishes- to any Indian any fire-arm, or ammunition therefor, is guilty of a misdemeanor. Death from mischievous animals. 399. If the owner of a mischievous animal, knowing its pro- pensities, wilfully suffers it to go at large, or keeps It without ordinary care, and such animal, while so at large, or while not kept with ordinary care, kills any human being who has taken all the precautions which the circumstances permitted, or which a reasonable person would ordinarily take in the same situation, is guilty of a felony. Exhibiting deformities of person. 400. Every person exhibiting the deformities of another, or his own deformities, for hire, is guilty of a misdemeanor; and every person who shall, by any artificial means, give to any per- son the appearance of a deformity, and shall exhibit such per- son for hire, shall be guilty of a misdemeanor. [New section approved February 4, 1874; Amendments 1873-4, p. 462. In effect immediately.] Aiding or encouraging suicide a felony. 400. Every person who deliberately aids or advises, or encourages another to commit suicide, is guilty of a felony. [New section approved March 30, 1874; Amendments 1873-4, p. 433. In effect July 1, 1874.] Using or exposing animals with glanders. 402. Any person who shall knowinglv sell, or offer for sale, or use, or expose, or who shall cause or procure to be sold or offered for sale, or .used, or expose, any horse, mule, or other animal having the disease known as glanders or farcy, or who shall bring, or cause to be brought, or aid in bringing into this state any sheep, hog, horse, or cattle, or any domestic animal, knowing the same to be affected with any contagious or infec- tious disease, shall be guilty of a misdemeanor. [Amendment approved March 10, 1891; Stats. 1891, p. 26.] CRIMES --36 402f 406 PENAL CODE. 562 Animal having glanders to be killed. 402*. Every animal having glanders or farcy shall at once be deprived of life by the owner or person having charge thereof, upon discovery or knowledge of its condition; and any such owner or person omitting or refusing to comply with the provisions of this section shall be guilty of a misdemeanor. I Amendment approved March 10, 1891; Stats. 1891, p. 26.] Adulterating candy. 402 1 /4. Every person who adulterates candy by using in its manufacture terra alba or any other deleterious substances, or who sells or keeps for sale any candy or candies adulterated with terra alba or any other deleterious substance, knowing the same to be adulterated, is guilty of a misdemeanor. [Amend- ment approved March 10, 1891; Stats. 1891, p. 27.] TITLE XI. OF CRIMES AGAINST THE PUBLIC PEACE. Sec. 403. Disturbance of public meetings, other than religions or political. 404. "Riot" defined. 405. Riot, punishment of. 406. "Rout" defined. 407. "Unlawful assembly" defined. 408. Punishment of rout and unlawful assembly. 409. Remaining present at place of riot, etc., after warning to disperse. 410. Magistrates neglecting or refusing to disperse rioters. 411. Consequence of resisting process after a county has been declared In a state of insurrection. 412. Prize fights. 413. Persons present at prize fights. 414. Leaving the state to engage in prize fights. 415. Disturbing the peace 416. Refusing to disperse upon lawful command. 417. Exhibiting deadly weapon in rude, etc., manner, or using the same unlawfully. 418. Forcible entry and detainer. 419. Returning to take possession of lands after being removed by legal proceedings. Disturbance of public meetings, other than religious or political. 403. Every person who, without authority of law, wilfully disturbs or breaks up any assembly or meeting, not unlawful in its character, other than such as is mentioned in sections 59 and 302, is guilty of a misdemeanor. "Riot" defined. 404. Any use of force or violence, disturbing the public peace, or any threat to use such force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot. 67 Cal. 418. Riot, punishment of. 405. Every person who participates in any riot is punish- able by imprisonment in the county jail not exceeding two years, or by fine not exceeding two thousand dollars, or both. "Rout" defined. 406. Whenever two or more persons, assembled and acting together, make any attempt or advance toward the commission 663 CRIMES AGAINST PUBLIC PEACE. 407-412 of an act which would be a riot if actually committed, such assembly is a rout. "Unlawful assembly" defined. 407. Whenever two or more persons assemble together to do an unlawful act, and separate without doing or advancing toward it, or do a lawful act in a violent, boisterous, or tumultuous man- ner, such assembly is an unlawful assembly. Punishment of rout and unlawful assembly. 408. Every person who participates in any rout or unlawful assembly is guilty of a misdemeanor. Remaining present at place of riot, etc., after warning to dis- perse. 409. Every person remaining present at the place of any riot, rout, or unlawful assembly, after the same has been lawfully warned to disperse, except public officers and persons assisting them in attempting to disperse the same, is guilty of a misde- meanor. S Magistrates neglecting or refusing to disperse rioters. 410. If a magistrate or officer, having notice of an unlawful or riotous assembly, mentioned in this chapter, neglects to pro- ceed to the place of assembly, or as near thereto as he can with safety, and to exercise the authority with which he is invested for suppressing the same and arresting the offenders, he is guilty of a misdemeanor. Consequence of resisting process after a county has been de- clared in a state of insurrection. 411. A person who, after the publication of the proclamation authorized by section 732, resists or aids in resisting the execution of process in any county declared to be in a state of insurrection, or who aids or attempts the rescue or escape of another from lawful custody or confinement, or who resists or aids in resisting any force ordered out by the governor to quell or suppress an insurrection, is punishable by imprisonment in the state prison not less than two years. Prize fights. 412. A person who, within this state, engages in, instigates, aids, encourages, or does any act to further a contention or fight, without weapons, between two. or more persons, or a fight commonly called a ring or prize fight, either within or without the state, or who engages in a public or private sparring exhib- ition, with or without gloves, within the state, or who sends or publishes a challenge or acceptance of a challenge for such a contention, exhibition, or fight, or carries or delivers such a challenge or acceptance, or trains or assists any person in train- ing or preparing for such a contention, exhibition or fight, shall be guilty of a felony, and upon conviction shall be fined not less than one thousand dollars nor more than five thousand dollars, and be imprisoned in the state prison not less than one year nor more than three years; provided, however, that spar- ring exhibitions not to exceed a limited number of rounds with gloves of not less than five ounces each in weight may be held by a domestic incorporated athletic club upon the prepayment by such club of an annual license to be fixed by the supervisors of each county; provided further, that such club shall have a 413-418 PENAL CODE. 564 physician in attendance to examine the boxers prior to each exhibition and determine whether or not they are in perfect physical condition. [Stats. 1899, p. 153.] Persons present at prize fights. 413. Every person wilfully present as a spectator at any fight or contention mentioned in the preceding section, is guilty of a misdemeanor. Leaving the state to engage in prize fights. 414. Every person who leaves this state with intent to evade any of the provisions of the last two sections, and to commit any act out of this state such as is prohibited by them, and who does any act which would be punishable under these provisions if committed within this state, is punishable in the same manner as he would have been in case such act had been committed within this state. Disturbing the peace. 415. Every person who maliciously and wilfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, tra- ducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any unincorporated town, or upon, the public highways in such unincorporated town, run any horse race, either for a wager or for amusement, or fire any gun or pistol in such unincorporated town, or use any vulgar, profane, or inde- cent language within the presence or hearing of women or chil- dren, in a loud and boisterous manner, is guilty of a misde- meanor, and upon conviction by any court of competent juris- diction shall be punished by fine not exceeding two hundred dollars, or by imprisonment in the county jail for not more than ninety days, or by both fine and imprisonment, or either, at the discretion of the court. [Amendment approved March 20, 1878; Amendments 1877-8, p. 117. In effect March 20, 1878.] 62 Cal. 509. Refusing to disperse upon lawful command. 416. If two or more persons assemble for the puroose of dis- turbing the public peace, or committing any unlawful act, and do not disperse on being desired or commanded so to do by a public officer, the persons so offending are severally guilty of a misdemeanor. Exhibiting deadly weapon in rude, etc., manner, or using the same unlawfully. 417. Every person who, not in necessary self-defense, in the presence of two or more persons, draws or exhibits any deadly weapon in a rude, angry, and threatening manner, or who, in any manner, unlawfully uses the same, in any fight or quarrel, is guilty of a misdemeanor. Forcible entry and detainer. 418. Every person using or procuring, encouraging or assist- ing another 'to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and in the manner allowed by law, is guilty of a mis- demeanor. 60 Cal. 574. 565 CRIMES AGAINST REVENUE AND PROPERTY. 419-424 Returning to take possession of lands after being removed by legal proceedings. 419. Every person who has been removed from any lands by process of law, or who has removed from any lands pursuant to the lawful adjudication or direction of any court, tribunal, or officer, and who afterwards unlawfully returns to settle, reside upon, or take possession of such lands, is guilty of a misde- meanor. CHAPTER XII. OF CRIMES AGAINST THE REVENUE, AND PROPERTY OP THIS STATE. Sec. 424. Embezzlement and falsification of accounts by public officers. 425. Officers neglecting to pay over public moneys. 426. "Public moneys," as used in the preceding section, defined. 427. Failure to pay over fines and forfeitures received, a mis- demeanor. 428. Obstructing officer in collecting revenue. 429. Refusing to give assessor list of property, or giving false name. 430. Making false statements, not under oath, in reference to taxes. 431. Delivering receipts for poll-taxes, other than prescribed by law, or collecting poll-taxes, etc., without giving the receipts prescribed by law. 432. Having blank receipts for licenses, etc., other than those prescribed by law. 434. Refusing to give name of persons in employment, etc. 435. Carrying on business without license. 436. Unlawfully acting as auctioneer. 439. Effecting insurance on account of foreign companies that have not complied with the laws of this state. 440. Officer charged with collection, etc., of revenue, refusing to permit inspection of his books. 441. Board of examiners, controller, aud treasurer neglecting certain duties. 442. Having state arms, etc. 443. Selling state arms. etc. Embezzlement and falsification of accounts by public officers. ' 424. Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safe-keeping, transfer, or disbursement of 'public moneys, who either: 1. Without authority of law, appropriates the same, or any portion thereof, to his own use, or to the use of another; or, 2. Loans the same, or any portion thereof, or having the possession or control of any public money, makes a profit out of, or uses the same for any purpose not authorized by law; or. 3. Fails to keep the same in his possession until disbursed or paid out bv authority of law; or, 4. Unlawfully deposits the same, or any portion thereof, in any bank, or with any banker or other person; or, 5. Changes or converts any portion thereof from coin into currencv, or from currency into coin, or other currency, without authoritv of law;- or. 6. Knowingly keeps anv false account, or makes any false entry or erasure in any account of or relating to the same; or. 7. Fraudulently alters, falsifies, conceals, destroys, or oblit- erates any such account; or, 8. Wilfully refuses or omits to pay over, on demand, any public moneys in his hands, upon the presentation of a draft, 425-430 PENAL CODE. 566 order, or warrant drawn upon such moneys by competent author- ity; or, 9. Wilfully omits to transfer the same when such transfer is required by law; or, 10. Wilfully omits or refuses to pay over to any officer or per- son authorized by law to receive the same, any money received by him under any duty imposed by law so to pay over the same; . Is punishable by imprisonment in the state prison for not less than one nor more than ten years, and is disqualified from holding any office in this state. [Amendment approved April 16, 1880; Amendments 1880, p. 39. In effect April 16, 1880.] 54 Cal. 63; 70 Cal. 524; 87 Cal. 608; 91 Cal. 511; 100 Cal. 23; 103 Cal. 489; 113 Cal. 211; 117 Cal. 243; 120 Cal. 5; 124 Cal. 454. Off.cers neglecting to pay over public moneys. 425. Every officer charged witn the receipt, safe-keeping, or disbursement of public moneys, who neglects or fails to keep and pay over the same in the manner prescribed by law, is guilty of felony. 52 Cal. 200; 91 Cal. 511. 'Public moneys," as used in the preceding section, defined. 426. The phrase "public moneys," as used in the two preced- ing sections, includes all bonds and evidence of indebtedness, and all moneys belonging to the state, or any city, county, town, or district therein, and all moneys, bonds, and evidences of indebtedness received or held by state, county, district, city, or town officers in their official capacity. 87 Cal. 608; 117 Cal. 244. Failure to pay over fines and forfeitures received, a mis- demeanor. 427. If any clerk, justice of the peace, sheriff, or constable, who receives any fine or forfeiture, refuses or neglects to pay over the same according to law and within thirty uays after the receipt thereof, he is guilty of a misdemeanor. 65 Cal. 478. Obstructing officer in collecting revenue. 428. Every person who wilfully obstructs or hinders any pub- lie officer from collecting any revenue, taxes, or other sums of money in which the people of this state are interested, and which such officer is by law empowered to collect, is guilty of a misdemeanor. 91 Cal. 511. Refusing to give assessor list of property, or giving false name. 429. Every person who unlawfully refuses, upon demand, to give to any county assessor a list of his property subject to tax- ation, or to swear to such list, or who gives a false name or fraudulently refuses to give his true name to any assessor, when demanded by such assessor in the discharge of his official duties, is guilty of a misdemeanor. Making false statements, not under oath, in reference to taxes. 430. Every person who, in making any statement, not upon oath, oral or written, which is required or authorized by law to be made, as the basis of imposing any tax or assessment, or of an application to reduce any tax or assessment, wilfully states anything which he knows to be false, is guilty of a misdemeanor. 567 CRIMES AGAINST REVENUE AND PROPERTY. 431-440 Delivering receipts for poll taxes, other than prescribed by law, or collecting poll taxes, etc., without giving the receipts prescribed by law. 431. Every person who uses or gives any receipt, except that prescribed by law, as evidence of the payment of any poll tax, road tax, or license of any kind, or who receives payment of such tax or license without delivering the receipt prescribed by law, or who inserts the name of more than one person therein, is guilty of a misdemeanor. Having blank receipts for licenses, etc., other than those prescribed by law. 432. Every person who has in his possession, with intent to circulate or sell, any blank licenses or poll-tax receipts other than those furnished by the controller of state or county auditor, is guilty of felony. 433. [Was repealed by an act entitled "An Act to Amend and in Relation to the Political, Civil, and Penal Codes, and the Code of Civil Procedure," approved April 1, 1872, now on file in the office of the secretary of state.] Refusing to give name of persons in employment, etc. 434. Every person who, when requested by the collector of taxes or licenses, refuses to give to such collector the name and residence of each man in his employment, or to give such col- lector access to the building or place where siucn men are employed, is guilty of a misdemeanor. Carrying on business without license. 435. Every person who commences or carries on any busi- ness, trade, profession, or calling, for the transaction or carry- ing on of which a license is required by any law of this state, without taking out or procuring the license prescribed by such law, is guilty of a misdemeanor. 69 Cal. 608; 71 Cal. 468; 85 Cal. 210; 106 Cal. 404; 114 CaJ. 282. Unlawfully acting as auctioneer. 436. Every person who acts as an auctioneer in violation of the laws of this state relating to auctions and auctioneers, is guilty of a misdemeanor. 437. [Repealed. See section 433.] 438. [Repealed. See section 43?.] Effecting insurance on account of foreign companies that have not complied with the laws of this state. 439. Every person who in this state procures, or agrees to procure, any insurance for a resident of this state, from any insurance company not incorporated under the laws of this state, unless such company or its agent has filed the bond, required by the laws of this state relating to insurance, is guilty of a misde- meanor. Officer charged with collection, etc., of revenue, refusing to permit inspection of his books. 440. Every officer charged with the collection, receipt, or dis- bursement of any portion of the revenue of this state, who, 441-443 PENAL CODE. 568 upon demand, fails or refuses to permit the controller or attor- ney-general to inspect his books, papers, receipts, and records pertaining to his office, is guilty of a misdemeanor. Board of examiners, controller, and treasurer neglecting certain duties. 441. Every member of the board of examiners and every controller' or state treasurer who violates any of the provisions of the, laws of this state relating to the board of examiners, or prescribing its powers and duties, is guilty of a felony. Having state arms, etc. 442. Every person who unlawfully retains in his possession any arms, equipments, clothing, or military stores belonging to the state, or the property of any company of the state militia, is guilty of a misdemeanor. Selling state arms, etc. 443. Every member of the state militia who unlawfully dis- poses of any arms, equipments, clothing, or military stores, the property of this state, or of any company of the state militia, Is guilty of a misdemeanor. TITLE XIII. OF CRIMES AGAINST PROPERTY. Chapter I. Arson. 447-55. II. Burglary and Housebreaking, 459-63. III. Having possession of Burglarious Instruments and Deadly Weapons, 466-7. IV. Forgery and Counterfeiting, 470-82. V. Larceny, 484-502. VI. Embezzlement, 503-14. VII. Extortion, 518-25. VIII. False Personation and Cheats, 528-36. IX. Fraudulently fitting out and Destroying Vessels, 539-541. X. Fraudulently Keeping possession of Wrecked Property, 544-5. XI. Fraudulent destruction of Property Insured, 548-9. XII. False Weights and Measures, 552-5. XIII. Fraudulent Insolvencies by Corporations, and other Frauds in their Management, 557-72. XIV. Fraudulent issue of Documents of Title to Mer- chandise, 577-83. XV. Malicious Injuries to Railroad Bridges, Highways, Bridges, and Telegraphs, 587-92. CHAPTER I. ARSON. Sec. 447. Arson defined. 448. "Building" defined. 440. "Inhabited building" defined. 450. "Night-time" defined 451. "Burning" defined. 4.YJ. ownership of the building. 453. Degrees of arson. 454. Arson of the first degree. Arson of the second degree. 455. Punishment of arson. 569 CRIMES AGAINST PROPERTY. 447-455 Arson defined. 447. Arson is the wilful and malicious burning of a building, with intent to destroy it. 51 Cal. 320; 71 Cal. 49; 81 Cal. 617; 103 Cal. 445; 113 Cal. 406; 127 Cal. S40. "Building" defined. 448. Any house, edifice, structure, vessel, or other erection, capable of affording shelter for human beings, or appurtenant to or connected with an erection so adapted, is a "building," within the meaning of this chapter. 51 Cal. 320; 71 Cal. 49; 81 Cal. 617; 103 Cal. 445. "Inhabited building" defined. 449. Any building which has usually been occupied by any person lodging therein at night is an "inhabited building," within the meaning of this chapter. 71 CaJ. 49; 81 Cal. 617. "Night-time" defined. 450. The phrase "night-time," as used in this chapter, means the period between sunset and sunrise. "Burning" defined. 451. To constitute a burning, within the meaning of this chapter, it is not necessary that the building set on fire should have been destroyed. It is sufficient that fire is applied so as to take effect upon any part of the substance of tne building. 103 Cal. 445. Ownership of the building. 452. To constitute arson it is not necessary that a person other than the accused should have had ownership in the build- ing set on fire. It is sufficient that at the time of the burning another person was rightfully in possession of, or was actually occupying such building, or any part thereof. 71 Cal. 49; SI Cal.' 617; 113 Cal. 406. Degrees of arson. 453. Arson is divided into, two degrees. 53 Cal. 627. Arson of the first degree. Arson of the second degree. 454. Maliciously burning in the night-time an inhabited build- ing in which there is at the time some human being, is arson in the first degree. All other kinds of arson are of the second degree. :i; Cal. 627. Penalty for crime of arson. 455. Arson is punishable by imprisonment in the state prison, as follows: 1. Arson in the first degree, for not less than two years; 2. Arson in the second degree, for not less than one nor more than twenty-five years. [Stats. 1901, p. 664.] 459-466 PENAL CODE. 570 CHAPTER II. BURGLARY. Sec. 459. "Burglary" defined. 460. Degrees of Imrgliiry. 461. Punishment of Imrglary 463. "Night-time" defined. "Burglary" defined. 459. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of bur- glary. [Amendment approved February 9, 1876; Amendments 1875-6, p. 111. In effect May 1, 1876.] 62 Cal. 454; 55 Cal. 525; 56 Cat. 407; 58 Cal. 106; 59 Cal. 383; 61 Cal. 366; 65 Cal. 226; 67 Cal. 104; 86 Cal. 240; 93 Cal. 113; 94 Cal. 482; 94 Cal. 597; 121 Cal. 347; 130 Cal. 602. Degrees of burglary. 460. Every burglary committed in the night-time is burglary of the first degree, and every burglary committed in the day- time is burglary of the second degree. [Amendment approved February 9, 1876; Amendments 1875-6, p. 111. In effect May 1, 1876.] 52 Cal. 454; 59 Cal. '383; 73 Cal. 581; 106 Cal. 642. Punishment of burglary. 461. Burglary of the first degree is punishable by imprison- ment in the state prison for not less than one nor more than fifteen years. Burglary of the second degree is punishable by imprisonment in the state prison for not more than five years. [Amendment approved February 9, 1876; Amendments 1875-6, p. 111. In effect May 1, 1876.] 52 CaJ. 454; 88 Cal. 120; 88 Cal. 173. "Night time" defined. 463. The phrase "night-time," as used in this chapter, means the period between sunset and sunrise. CHAPTER III. HAVING POSSESSION OF BURGLARIOUS INSTRUMENTS AND DEADLY WEAPONS. Sec. 466. Possession of Imrghirious instruments. 4(7. Having possession of deadly weapons. Possession of burglarious instruments. 466. Every- person having upon him or in his possession a picklock, crow, keybit, or other instrument or tool with intent feloniously to break or enter into any building, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument above named so that the same will fit or open the lock of a building, without being requested so to do by some person having the right to open the same, or who shall make, alter, or repair any instru- ment or thing, knowing or having reason to believe that it is intended to be used in committing a misdeih6anor or felony, is guilty of misdemeanor. Any of the structures mentioned in sec- tion four hundred and fifty-nine of this code shall be deemed 571 BURGLARY, FORGERY, ETC. 467-470 to be a building within the meaning of this section. [Amend- ment approved March 3, 1874; Amendments 1873-4, p. 463. In effect March 3, 1874.] Having possession of deadly weapons. 467. Every person having upon him any deadly weapon with, intent to assault another, is guilty of a misdemeanor. CHAPTER IV. FORGERY AND COUNTERFEITING. Sec. 470. Forgery of wills, conveyances, etc. 471. Making false entries in records or returns. 472. Forgery of public and corporate seals. 47:?. Punishment of forgery. 474. Forging telegraphic messages. 475. Passing or receiving forged notes. 476. Making, passing, or uttering fictitious bills, etc. 477. Counterfeiting coin, bullion, etc. 478. Punishment of counterfeiting. 470. Possessing or receiving counterfeit coin, bullion, etc. 4RO. Making or possessing counterfeit dies or plates. 4S1. Counterfeiting railroad ticket, etc. 482. Restoring canceled tickets. Forgery of wills, conveyances, etc. 470. Every person who, with intent to defraud another, falsely makes, alters, forges, or counterfeits any charter, Tetters, patent, deed, lease, indenture, writing obligatory, will, testament, codi- cil, annuity, bond, covenant, bank-bill or note, post-note, checK, draft, bill of exchange, contract, promissory note, aue-bill for the payment of money or property, receipt for money or prop- erty, passage ticket, power of attorney, or any certificate of any share, right, or interest in the stock of any corporation or asso- ciation, or any controller's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquit- tance, release, or receipt for money or goods, or any acquit- tance, release, or discharge for any debt, account, suit, action, demand, or other thing, real or personal, or any transfer or assurance of money, certificates of shares of stock, goods, chat- tels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certifi- cates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft, order, or assign- ment of any bond, writing obligatory, or promissory note for money or other property, or counterfeits or forges the seal or handwriting of another; or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above named false, altered, forged, or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any- person; or who, with intent to defraud, alters, corrupts, or falsi- fies any record of any will, codicil, conveyance, or other instru- ment, the record of which is by law evidence, or any record of 471-475 PRNAL CODE. 572 any judgment of a court or the return of any officer to any process of any court, is guilty of forgery. 65 Cal. 279; 66 Cal. 262; 70 Cal. 63; 77 Cal. #65; 84 Cal. 569; 90 Cal. 587; 91 Cal. 473; 92 Cal. 592; 96 Cal. 174; 100 Cal. 665; 103 Cal. 564; 105 Cal. 38; 108 Cal. 442; 111 Cal. 280; 113 Cal. 280; 114 Cal. 363; 117 Cal. 30; 118 Cal. 292; 119 Cal. 167; 122 Cal. 495; 123 Cal. 410; 130 Cal. 452; 133 Cal. 125. Making false entries in records or returns. 471. Every person who, with intent to defraud another, makes, forges, or alters any entry in any book of records, or any instru- ment purporting to be any record or return specified In the pre- ceding section, is guilty of forgery. 96 Cal. 174; 133 Cal. 125. Forgery of public and corporate seals. 472. Every person who, with intent to defraud another, forges, or counterfeits the seal of this state, the seal of any public officer authorized by law, the seal of any court of record, or the seal of any corporation, or any other public seal authorized or recognized by the laws of this state, or of any other state, gov- ernment, or country, or who falsely makes, forges, or counter- feits any impression purporting to be an impression of any such seal, or who has in his possession any such counterfeited seal or impression thereof, knowing it to be counterfeited, and wil- fully conceals the same, is guilty of forgery. 133 Cal. 125. Punishment of forgery. 473. Forgery is punishable by imprisonment in the state prison for not less than one nor more than fourteen years. 133 Cal. 125. Forging telegraphic messages. 474. Every person who knowingly and wilfully sends by tel- egraph to any person a false or forged message, purporting to be from such telegraph office, or from any other person, or who wilfully delivers, or causes to be delivered to any person any such message falsely purporting to have been received by tele- graph, or who furnishes or conspires to furnish, or causes to be furnished to any agent, operator, or employee, to be sent by telegraph, or to be delivered, any such message, knowing the same to be false or forged, with the intent to deceive, injure, or defraud another, is punishable by imprisonment in the state prison not exceeding five years, or in the county jail not exceed- ing one year, or by fine not exceeding five thousand dollars, or by both fine and imprisonment. Passing or receiving forged notes. 475. Every person who has in his possession, or receives from another person, any forged promissory note or bank-bill, or bills, for the payment of money or property, with the intention to pass the same, or to permit, cause, or procure the same to be uttered or passed, with the intention to defraud any person, knowing the same to be forged or counterfeited, or has or keeps in his possession any blank or unfinished note or bank-bill made in the form or similitude of any promissory note or bill for payment of money or property, made to be issued by any incor- porated bank or banking company, with intention to fill up and complete such blank and unfinished note or bill, or to permit, or 573 FORGERY AND COUNTERFEITING. 476-481 cause, or procure the same to be filled up and completed In order to utter or pass the same, or to permit, or cause, or pro- cure the same to be uttered or passed, to defraud any person, is punishable by imprisonment in the state prison for not less than one nor more than fourteen years. Making, passing, or uttering fictitious bills, etc. 476. Every person who makes, passes, utters, or publishes^ with intention to defraud any other person, or who, with the like intention, attempts to pass, utter, or publish, or who has in his possession, with like intent to utter, pass, or publish, any fic- titious bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of some bank, corporation, copartnership, or indi- vidual, when, in fact, there is no such bank, corporation, copart- nership, or individual in existence, knowing the bill, note, check, or instrument in writing to be fictitious, is punishable by im- prisonment in the state prison for not less than one nor more than fourteen years. 90 Cal. 587: 105 Cal. 38; 109 Cal. 296; 114 Cal. 351; 119 Cal. 169; 133 Cal. 122. Counterfeiting coin, bullion, etc. 477. Every person who counterfeits any of the species of gold or silver coin current in this state, or any kind or species of gold dust, gold or silver bullion, or bars, lumps, pieces, or nug- gets, or who sells, passes, or gives in payment such counterfeit coin, dust, bullion, bars, lumps, pieces, or nuggets, or permits, causes, or procures the same to be sold, uttered, or passed, with intention to defraud any person, knowing the same to be coun- terfeited, is guilty of counterfeiting. Punishment of counterfeiting. 478. Counterfeiting is punishable by imprisonment in the state prison for not less than one nor more than fourteen years. Possessing or receiving counterfeit coin, bullion, etc. 479. Every person who has in his possession, or receives for any other person, any counterfeit gold or silver coin of the species current in this state, or any counterfeit gold dust, gold or silver bullion or bars, lumps, pieces, or nuggets, with the intention to sell, utter, put off, or pass the same, or permits, causes, or procures the same to be sold, uttered, or passed, with intention to defraud any person, knowing the same to be coun- terfeit, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. Making or possessing counterfeit dies or plates. 480. Every person who makes, or knowingly has in his pos- session any die, plate, or any apparatus, paper, metal, machine, or other thing whatever, made use of in counterfeiting coin cur- rent in this state, or in counterfeiting gold dust, gold or silver bars, bullion, lumps, pieces, or nuggets, or in counterfeiting bank notes or bills, is punishable by imprisonment in the state prison not less than one nor more than fourteen years; and all such dies, plates, apparatus, paper, metal, or machine, intended for the purpose aforesaid, must be destroyed. 80 Cal. 286. Counterfeiting railroad ticket, etc. 481. Every person who counterfeits, forges, or alters any ticket, check, order, coupon, receipt for fare or pass, issued by 482-484 PENAL CODE. 574 any railroad company, or by any lessee or manager thereof, designed to entitle the holder to ride in the cars of such com- pany, or who utters, publishes, or puts into circulation any such counterfeit or altered ticket, check, or order, coupon, receipt for fare or pass, with intent to defraud any such railroad company, or any lessee thereof, or any other person, is punishable by imprisonment in the state prisdn, or in the county jail, not exceeding one year, or by fine not exceeding one thousand dol- lars, or by both such imprisonment and fine. [New section approved March 30, 1874; Amendments 1873-4, p. 433. In effect July 1, 1874.] Restoring canceled tickets. 482. Every person who, for the purpose of restoring to its original appearance and nominal value, in whole or in part, removes, conceals, fills up, or obliterates the cuts, marks, punch- holes, or other evidence of cancellation, from any ticket, check, order, coupon, receipt for fare or pass, issued by any railroad company, or any lessee or manager thereof, canceled in whole or in part, with intent to dispose of by sale or gift, or to circu- late the same, or with intent to defraud the railroad company, or lessee thereof, or any other person, or who, with like intent to defraud, offers for sale, or in payment of fare on the railroad of the company, such ticket, check, order, coupon, or pass, knowing the same to have been so restored in whole or in part, is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars, or by both such imprisonment and fine. [New section approved March 30, 1874; Amendments 1873-4, p. 433. In effect July 1, 1874.1 133 Cal. 126. CHAPTER V. LARCENY. Sec. 484. "Larceny" defined. 485. Larceny of lost property. 486. Grand and petit larceny. 487. Grand larceny defined. 488. Petit larceny. 489. Punishment of grand larceny. 490. Punishment of petit larceny. 491. Dogs property. 492. Larceny of written instruments. 493. Value of passage tickets. 494. Written instruments completed but not delivered. 495. Severing and removing part of the realty. 496. Receiver of stolen property. 497. Larceny, and receiving stolen property out of the state. 498. Stealing gas. 499. Stealing water. 499a. Stealing electricity a misdemeanor. 500. Larceny of goods saved from fire in San Francisco. 501. Purchasing or receiving in pledge junk, etc. 502J. Removal of mortgaged property. "Larceny" defined. 484. Lareeny is the felonious stealing, taking, carrying, lead- ing, or driving away the personal property of another. ?;3 Cal. 59; 56 Cal. 80; 61 Cal. 135; 61 Cal. 628; 62 Cal. 141; 80 Cal. 51; 81 Cal. 137; 86 Cal. 239; 90 Cal. 572; 95 Cal. 228; 110 Cal. 601; 112 Cal. 339; 118 Cal. 26; 123 Cal. 524. 575 LARCENY. 485-493 Larceny of lost property. 485. One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and restore the property to him, is guilty of larceny. SI Cal. 137; 95 Cal 230. Grand and petit larceny. 486. Larceny is divided into two degrees, the first of which is termed grand larceny; the second, petit larceny. 66 Cal. 185; 67 Cal. 351; 86 Cal. 240; 112 Cal. 339. Grand larceny defined. 487. Grand larceny is larceny committed in either of the fol- lowing cases: 1. When the property taken is of a value exceeding fifty dol- lars. 2. When the property is taken from the person of another. 3. When the property taken is a bicycle, horse, mare, gelding, cow, steer, bull, calf, mule, jack, or jenny. [Stats. 1901, p. 290.] 49 Cal. 68; 56 Cal. 80; 59 Cal. 392; 61 Cal. 477; 62 Cal. 52; 62 Cal. 142; 65 Cal. 17; 66 Cal. 185; 67 Cal. 351; SO Cal. 51; 90 Cal. 572; 100 Cal. 439; 114 Cal. 110; 116 Cal. 584; 120 Cal. 667. Petit larceny. 488. Larceny in other cases is petit larceny. 64 Cal. 404; 67 Cal. 352; 86 Cal. 240; 112 Cal. S39; 116 Cal. 584. Punishment of grand larceny. 489. Grand larceny is punishable by imprisonment in the state prison for not less than one nor more than ten years. 61 Cal. 135; 64 Cal. 252; 65 Cal. 299. Punishment of petit larceny. 490. Petit larceny is punishable by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or both. 64 Cal. 341; 66 Cal. 186; 73 Cal. 444; 109 Cal. 266. Dogs property. 491. Dogs are personal property, and their value is to be ascertained in the same manner as the value of other property. [Amendment approved March 15, 1887; Stats. 1887, p. 131. In effect March 15, 1887. Act provides for amending section 491 of the Civil Code in the body of the act, but in the title reads "Penal Code."] 80 Cal. 549. Larceny of written instruments. 492. If the thing stolen consists of any evidence of debt, or other written instrument, the amount of money due thereupon, or secured to be paid thereby, and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property the title to which is shown thereby, or the sum which might be recovered in the absence thereof, is the value of the thing stolen. 90 Cal. 573. Value of passage tickets. 493. If the thing stolen is any ticket or other paper or writ- 494-499 PENAL CODE. 576 ing entitling or purporting to entitle the holder or proprietor thereof to a passage upon any railroad or vessel or other pub- lic conveyance, the price at which tickets entitling a person to a like passage are usually sold by the proprietors of such con- veyance is the value of such ticket, paper, or writing. Written instruments completed but not delivered. 494. All the provisions of this chapter apply where the prop- erty taken is an instrument for the payment of money, evidence of debt, public security, or passage ticket, completed and ready to be issued or delivered, although the same has never been issued or delivered by the makers thereof to any person as a purchaser or owner. Severing and removing part of the realty. 495. The provisions of this chapter apply where the thing taken is any fixture or part of the realty, and is severed at the time of the taking, in the same manner as if the thing had been severed by another person at some previous time. Receiver of stolen property. 496. Every person who, for his own gain, or to prevent the owner from again possessing his property, buys or receives any personal property, knowing the same to have been stolen, is punishable by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding six months, or by both; and it shall be presumptive evidence that such property was stolen, if the same consists of jewelry, silver, or plated ware, or articles of personal ornament, if purchased or received from a person under the age of eighteen,, unless such property is sold by said minor at a fixed place of business carried on by said minor or his employer. [Amendment approved February 28, 1874; Amendments 1873-4, p. 464. In effect February 28, 1874.] 89 Cal. 499; 90 Cal. 573; 94 Cal. 574. Larceny, and receiving stolen property out of the state. 497. Every person who, in another state or country, steals the property of another, or receives such property knowing it to have been stolen, and brings the same into this state, may be convicted and punished in the same manner as if such larceny or receiving had been committed in this state. 90 Cal. 573; 91 Cal. 27; 122 Cal. 74. Stealing gas. 498. Every person who, with intent to injure or defraud, makes or causes to be made any pipe, tube, or other Instru- ment, and connects the same, or causes it to be connected, with any main, service-pipe, or other pipe for conducting or supply- ing illuminating gas, in such manner as to supply Illuminating gas to any burner or orifice, by or at which illuminating gas is consumed, around or without passing through the meter pro- vided for the measuring and registering the quantity consumed, or in any other manner so as to evade payment therefor, and every person who, with like intent, injures or alters any gas meter or obstructs its action, is guilty of a misdemeanor. Stealing water. 499. Every person who, with intent to injure or defraud, con- nects or causes to be connected, any pipe, tube, or other instru- 577 LARCENY. 499a-502i ment, with any main, service-pipe, or other pipe, or conduit or flume for conducting water, for the purpose of taking water from such main, service-pipe, conduit or flume, without the knowledge of the owner thereof, and with intent to evade pay- ment therefor, is guilty of a misdemeanor. 66 Cal. 215. Stealing electricity a misdemeanor. 499a. Every person who, with intent to injure or defraud, shall unlawfully connect, or procure another to connect, with any electric apparatus or any electric wire, operated by any person, persons or corporation authorized to generate, transmit, and sell electric current, without the knowledge and consent of such person, persons, or corporation operating such appar- atus or wires, for the purpose of appropriating electric current for light, power, heat, or other use, and to evade payment therefor, or who shall, with like intent, injure or alter, or who' shall procure to be injured or altered, any electric meter or obstruct its working, or who shall procure the same to be maliciously tampered with and injured, shall be deemed guilty of a misdemeanor. [Stats. 1901, p. 20.] Larceny of goods saved from fire in San Francisco. 500. Every person who, in the city and county of San Fran- cisco, saves from fire or from a building endangered by fire, any property, and for two days thereafter corruptly neglects to notify the owner or fire marshal thereof, is punishable by impris- onment in the state prison for not less than one nor more than ten years. Purchasing or receiving in pledge junk, etc. 501. Every person who purchases or receives in pledge or by way of mortgage from any person under the age of sixteen years any junk, metal, mechanical tools, or implements, is guilty of a misdemeanor. [New section approved March 28, 1872; Amendments 1871-2, p. 684. Took effect with the Code.] Removal of mortgaged property. 502%. Every person who, after mortgaging any real property, and during the existence of such mortgage, or after such mort- gaged property shall have been sold under an order and decree of foreclosure, and with intent to defraud or injure the mort- gagee, his representatives, successors, or assigns, or the pur- chaser of such mortgaged premises at such foreclosure sale, his representatives or assigns, takes, removes, or carries away from such mortgaged premises, or otherwise disposes of, or permits the taking, removing, or carrying away, or otherwise disposing of, any house, barn, windmill, or water-tank, upon or affixed to such premises as an improvement thereon, without the written consent of the mortgagee, his representatives, successors, or assigns, or the purchaser at such foreclosure sale, his representa- tives or assigns, is guilty of larceny, and shall be punished accordingly. [New section approved March 26, 1895; Stats. 1895. p. 77. In effect March 26, 1895.] CRIMES--37 503-507 PENAL CODE. 578 CHAPTER VI. EMBEZZLEMENT. Sec. 503. "Embezzlement" defined. 504. When officer, etc.. guilty of embezzlement. 505. Carrier, when guilty of embezzlement. 506. When trustee, hanker, etc., guilty of embezzlement. 5o~. When bailee, tenant, or lodger guilty of embezzlement. 508. When clerk, agent, or servant guilty of embezzlement. no'.). Distinct act of taking. 510. Evidence of debt undelivered a subject of embezzlement. 511. Claim of title a ground of defense. 512. Intent to restore the property Is no defense. 51.'{. Actual restoration a ground for mitigation of punishinent. 514. Punishment for embezzlement. "Embezzlement" defined. 503. Embezzlement is the fraudulent appropriation of prop- erty by a person to whom it has been intrusted. 61 Cal. 135; 69 Cal. 237; TJ Cal. ?; 82 Cal. 586; 91 Cal. 269; 100 Cal. 468; 108 Cal. 645; 120 Cal.. 694; 124 Cal. 453; 133 Cal. 280; 133 Cal. 329. When officer, etc., guilty of embezzlement. 504. Every officer of this state, or of any county, city, city and county, or other municipal corporation or subdivision thereof, and every deputy, clerk, or servant of any such officer, and every officer, director, trustee, clerk, servant, or agent of any association, society, or corporation, (public or private) who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a) fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement. [Amendment approved April 6, 1880; Amendments 1880, p. 8. In effect April 6, 1880.] 66 Cal 274; 69 Cal. 237; 82 Cal. 586; 106 Cal. 312; 108 Cal. 541; 124 Cal. 453. Carrier, when guilty of embezzlement. 505. Every carrier or other person having under his control personal property for the purpose of transporation for hire, who fraudulently appropriates it to any use or purpose inconsistent with the safe-keeping of such property and its transporation according to his trust, is guilty of embezzlement, whether he has broken the package in which such property is contained, or has otherwise separated the items thereof, or not. When trustee, banker, etc., guilty of embezzlement. 506. Every trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator, or collector, or per~ son otherwise intrusted with or having in his control property for the use of any other person, who fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement. 69 Cal. 237; 116 Cal. 390. When bailee, tenant, or lodger guilty of embezzlement. 507. Every person intrusted with any property as bailee, ten- ant, or lodger, or with any power of attorney for the sale or transfer thereof, who fraudulently converts the same or the 579 EMBEZZLEMENT. 508-514 proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, is guilty of embez- zlement. 51 Cal. 379; 71 Cal. 389; 77 Cal. 563; 133 Cal. 329. When clerk, agent, or servant guilty of embezzlement. 508. Every clerk, agent, or servant of any person who fraud- ulently appropriates to his own use, or secretes with a fraud- ulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue 1 of his employment as such clerk, agent, or servant, is guilty of embez- zlement. 66 Cal. 345; 69 Cal. 237; 71 Cal. 391; 77 Cal. 182; 77 Cal. 563; 100 Cal. 468. Distinct act of taking. 509. A distinct act of taking is not necessary to constitute embezzlement. Evidence of. debt undelivered a subject of embezzlement. 510. Any evidence of debt, negotiable by delivery only, and actually executed, is the subject of embezzlement, whether it has been delivered or issued as a valid instrument or not. Claim of title a ground of defense. 511. Upon any indictment for embezzlement, It is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable. But this provision does not excuse the unlawful retention of the property of another to offset or pay demands held against him. 77 Cal. 562; 120 Cal. 26. Intent to restore the property is no defense. 512. The fact that the accused intended to restore the prop- erty embezzled, is no ground of defense or of mitigation of pun- ishment, if it has not been restored before an information has been laid before a magistrate, charging the commission of the offense. Actual restoration a ground for mitigation of punishment. 513. Whenever, prior to any information laid before a magis- trate, charging the commission of embezzlement, the person accused voluntarily and actually restored or tenuered restora- tion of the property alleged to have been embezzled, or any part thereof, such fact is not a ground of defense, but it authorizes the court to mitigate punishment, in its discretion. 80 Cal. 56. Punishment for embezzlement. 514. Every person guilty of embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzled; and where the property embezzled is an evidence of debt or right of action, the sum due upon it or secured to be paid by it, shall be taken as its value; provided, that if the embezzlement or defalcation be of the public funds of the United States, or of this state, or of any county, city and and county, or municipality within this state, the offense is a felony, and shall be punishable by imprisonment in the state prison not less than one year nor more than ten years; and the person so convicted shall be ineligible thereafter to any office of 518-523 PENAL CODE. 580 i honor, trust, or profit under this state. [Amendment approved April 6, 1880; Amendments 1880, p. 8. In effect April 6, 1880.] 61 Cal. 135; 91 Cal. 273; 94 Cal. 576; 116 Cal. 386. CHAPTER VII. EXTORTION. Sec. 518. "Extortion" defined. 519. What threats may constitute extortion. 520. Punishment of extortion in certain cases. 521. Extortion committed under color of official right. 522. Obtaining signature by means of threats. 523. Sending threatening letters with intent to extort. 524. Attempts to extort by means of verbal threats. 525. Officers of railroad companies making overcharges. "Extortion" defined. 518. Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right. 81 Cal. 277; 93 Cal. 456; 123 Cal. 522; 126 Cal. 367; What threats may constitute extortion. 519. Fear, such as will constitute extortion, may be induced by a threat, either: 1. To do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or member of his family; or, 2. To accuse him, or any relative of his, or members of his family, of any crime; or, 3. To expose, or impute to him or them any deformity or disgrace; or, 4. To expose any secret affecting him or them. 57 Cal. 563; 63 Cal. 491; 81 Cal. 277; 95 Cal. 641; 123 Cal. 523; 126 Cal 367. Punishment of extortion in certain cases. 520. Every person who extorts any money or other property from another, under circumstances not amounting to robbery, by means of force, or any threat, such as is mentioned in the preceding section, is punishable by imprisonment in the state prison not exceeding five years. 81 Cal. 279. Extortion committed under color of official right. 521. Every person who commits any extortion under color of official right, in cases for which a different punishment is not prescribed in this code, is guilty of a misdemeanor. Obtaining signature by means of threats. 522. Every person who, by any extortionate means, obtains from another his signature to any paper or instrument, whereby, if such signature were freely given, any property would be trans- ferred, or any debt, demand, charge, or rignt of action created, is punishable in the same manner as if the actual delivery of such debt, demand, charge, or right of action were obtained. Sending threatening letters with intent to extort. 523. Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expres- 681 EXTORTION FALSE PERSONATION. 524-530 sing or implying, or adapted to imply, any threat such as is specified in section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat. SI Cal. 278; 95 Cal. 641. Attempts to extort by means of verbal threats. 524. Every person who unsuccessfully attempts, by means of any verbal threat, such as is specified in section 519, to extort money or other property from another, is guilty of a misde- meanor. 63 Cal. 491; 123 Cal. 523. Officers of railroad companies making overcharges. 525. Every officer, agent, or employee of a railroad company who asks or receives a greater sum than is allowed by law for the carriage of passengers or freight, is guilty of a misdemeanor. CHAPTER VIII. FALSE PERSONATION AND CHEATS. Sec. 528. Marrying under false personation. .">:!!). Falsely personating another in other cases. 530. Receiving property in a false character. 531. Fraudulent conveyances. ."".i*. Obtaining money by false pretenses. 533. Selling land twice. 534. Married person selling land under false representation. 535. Mock auction. 536. Consignee,! false statement by. 537. Defrauding inn or boarding-house. * ">37. Removal of mortgaged chattels. 5374. Fraudulent registration of cattle. 538. Further incumbrance or sale. 538*. Misrepresentation of newspaper circulation. Marrying under false personation. 528. Every person who falsely personates another, and in such assumed character marries or pretends to marry, or to sustain the marriage relation towards another, with or without the con- nivance of such other, is guilty of a felony. Falsely personating another in other cases. 529. Every person who falsely personates another, and In such assumed character, either: 1. Becomes bail or surety for any party in any proceeding whatever, before any court or officer authorized to take such bail or surety; or, 2. Verifies, publishes, acknowledges, or proves, in the name of another person, any written instrument, wita latent that the same may be recorded, delivered, and used as true; or, 3. Does any other act whereby, if it were done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to Incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person; is punishable by imprisonment in the county jail not ex- ceeding two years, or by fine not exceeding five thousand dollars. 77 Cal. 437; 119 Cal. 73. Receiving property in a false character. 530. Every person who falsely personates another, and in such assumed character receives any money or property, knowing 531-535 PENAL CODE. 582 that it is intended to be delivered to the individual so personated, with intent to convert the same to his own use, or to that of another person, or to deprive the true owner thereof, is punish- able in the same manner and to the same extent as for larceny of the money or property so received. 127 Cal. 282. Fraudulent conveyances. 531. Every person who is a party to any fraudulent conveyance of any lands, tenements, or hereditaments, goods or chattels, or any right or interest issuing out of the same, or 10 any bond, suit, judgment, or execution, contract or conveyance, nad, maue, or contrived with intent to deceive and defraud others, or to defeat, hinder, or delay creditors or others of their just debts, damages, or demands; or who, being a party as aforesaid, at any time wittingly and willingly puts in, uses, avows, main- tains, justifies, or defends the same, or any of tnem, as true, and done, had, or made in good faith, or upon good considera- tion, or aliens, assigns, or sells any of the lands, tenements, hereditaments, goods, chattels, or other things before mentioned, to him or them conveyed as aforesaid, or any part thereof, is guilty of a misdemeanor. Obtaining money by false pretenses. 532. Every person who knowingly and designedly, by false or fraudulent representation or pretenses, defrauds any other per- son of money or property, or who causes or procures others to report falsely of his wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fradulently gets into possession of money or property, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained. [Stats. 1889, p. 14.] 66 Cal. 11: 70 Cal. 117; 70 Cal. 529; 77 Cal. 174; 82 Cal. 273; 84 Cal. 38; 84 Cal. 472; 100 Cal. 354; 102 Cal. 562; 114 Cal. 438; 119 Cal. 597; 123 Cal. 267; 327 Cal. 282; 133 Cal. 329. Selling land twice. 533. Every person who, after once selling, bartering, or dis- posing of any tract of land or town lot, or after executing any bond or agreement for the sale of any land or town lot, again wilfully and with intent to defraud previous or subsequent purchasers, sells, barters, or disposes of the same tract of land or town lot, or any part thereof, or wilfully and with intent to defraud previous or subsequent purchasers, executes any bond or agreement to sell, barter, or dispose of the same land or lot, or any part thereof, to any other person for a valuable consideration, is punishable by imprisonment in the state prison not less than one nor more than ten years. 85 Cal. 87. Married person selling land under false representation. 534. Every married person who falsely and fraudulently represents himself or herself as competent to sell or mortgage any real estate, to the validity of which sale or mortgage the assent or concurrence of his wife or her husband is necessary, and under such representations wilfully conveys or mortgages the same, is guilty of felony. Mock auction. 535. Every person who obtains any money or property from 583 FALSE PERSONATION CHEATS. 536-537 another, or obtains the signature of another to any written in- strument, the false making of which would be forgery, by means of any false or fraudulent sale of property or pretended property, by auction, or by any of the practices Known as mock auctions, is punishable by imprisonment in the state prison not exceeding three years, or in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment; and, in addition thereto, for- feits any license he may hold as auctioneer, and is forever dis- qualified from receiving a license to act as auctioneer within this state. Consignee, false statement by. 536. Every commission merchant, broker, agent, factor, or consignee, who shall wilfully and corruptly make, or cause to be made, to the principal or consignor of such commission mer- chant, agent, broker, factor, or consignee, a false statement con- cerning the price obtained for, or the quality or quantity of any property consigned or intrusted to such commission mer- chant, agent, broker, factor, or consignee, for sale, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five hundred dollars, or imprisoned in the county jail not exceeding six months, or by both such fine and imprisonment. [New Section approved April 15, 1880; Amendments 1880, p. 37. In effect April 15, 1880.] Defrauding inn or boarding house. 537. Any person who obtains any food or accommodation at an inn or boarding house without paying therefor, with intent to defraud the proprietor or manager thereof, or who obtains credit at an inn or boarding house by the use of any false pre- tense, or who, after obtaining credit or accommodation at any inn or boarding house, absconds and surreptitiously removes his baggage therefrom without paying for his food or accom- modations, is guilty of a misdemeanor. [New section approved March 1. 1889; Stats. 1889, p. 44. | 119 Cal. 458; 121 Cal. ?29. Removal of mortgaged chattels. 537. Every person who, after mortgaging any of the prop- erty mentioned in section two thousand nine hundred and fifty- five of the Civil Code, excepting locomotives, engines, rolling stock of a railroad, steamboat machinery in actual use, and vessels, during the existence of such mortgage, with the intent to defraud the mortgagee, his representatives or assigns, trans- fers, sells, takes, drive?, or carries away, or otherwise disposes of, or permits the transferring, selling, taking, driving, or carrying away, or otherwise disposing of such mortgaged prop- erty, or anv part thereof, from the county where it was situated at the time it was mortgaged, without the written consent of the mortgagee, is guilty of larceny, and shall be punished accord- ingly. [Amendments approved March 9, 1893; Stats. 1893, p. 119. In effect immediately. 1 Fraudulent registration of cattle. 537%. Every person who shall, by any false or fraudulent pretense, obtain from any club, association, society, or com- pany organized for the purpose of improving the breed of cat- 538-539 PENAL CODE. 584 tie, horses, sheep, swine, or other domestic animals, a certifi- cate of registration of any animal in the herd register, or any other register of any such club, association, society, or com- pany, or a transfer of any such registration; and any person who shall, for a legal consideration, give a false pedigree of any animal, with intent to mislead, shall be guilty of a mis- demeanor. Sec. 2. Every person wilfully advertising any of such ani- mals for purposes of copulation, of profit, as having a pedigree other than the true pedigree of such animal, shall forfeit all right by law to collect pay for the services of said animal. [New section approved February 25, 1889; Stats. 1889, p. 35. In effect February 25, 1889.] Further incumbrance or sale. 538. Every person who, after mortgaging any of the property mentioned in section two thousand nine hundred and fifty-five of the Civil Code, excepting locomotives, engines, rolling stock of a railroad, steamboat machinery in actual use, and vessels, during the existence of such mortgage, sells, transfers, or in any manner further encumbers the said mortgaged property, or any part thereof, or causes the same to be sold, transferred, or further encumbered, is guilty of larceny, and shall be pun- ished accordingly; unless at or before the time of making such sale, transfer, or encumbrance, such mortgagor shall inform the person to whom such sale, transfer, or encumbrance may be made, of the existence of the prior mortgage, and shall in- form the prior mortgagee of the intended sale, transfer, or encumbrance, in writing, by giving the name and place of resi- dence of the party to whom the sale, transfer, or encumbrance is to be made. [New section added March 9, 1893; Stats. 1893, p. 120. In effect immediately.] 119 Cal. 488. Misrepresentation of newspaper circulation. 538. Every proprietor or publisher of any newspaper or periodical, who shall wilfully and knowingly misrepresent the circulation of such newspaper or periodical, for the purpose of securing advertising or other patronage, shall be !eomeJ guilty of a misdemeanor. [New section added March 11. 1893; Stats. 1893, p. 132. In effect immediately.] CHAPTER IX. FRAUDULENTLY FITTING OUT AND DESTROYING VESSELS. Sec. 530. Captain or other officer wilfully destroying vessel, etc. .~>4u. Other person wilfully destroying vessel, etc. .")41. Making false manifest, etc 543*. Wearing badge of secret order. Captain or other officer wilfully destroying vessel, etc. 539. Every captain or other officer or person in command or charge of any vessel, who, within this state, wilfully wrecks, sinks, or otherwise injures or destroys such vessel, or any cargo in such vessel, or wilfully permits the same to be wrecked, sunk, or otherwise injured or destroyed, witn intent to prejudice or defraud any other person, is punishable by imprisonment in the state prison not less than three years. 585 CHEATS DESTROYING VESSELS. 540-548 Other person wilfully destroying vessel, etc. 540. Every person, other than such as are embraced within the last section, who is guilty of any act therein specified, Is punishable by imprisonment in the state prison for a term not exceeding ten years. Making false manifest, etc. 541. Every person guilty of preparing, making, or subscrib- ing any false or fraudulent manifest, invoice, bill of lading, ship's register, or protest, with intent to defraud another, is punishable by imprisonment in the state prison not exceeding three years. Wearing badge of secret order. 543 1 /. Any person who wilfully wears the badge, lapel but- ton, rosette, or other recognized and established insignia of any secret society, order, or organization, or uses the same to obtain aid or assistance within this state, unless entitled to wear or use the same, under the constitution, by-laws, or rules and regulations, or other laws or enactments of such order or society, is guilty of a misdemeanor. [In effect March 11, 1899; Stats., p. 90.] CHAPTER X. FRAUDULENTLY KEEPING POSSESSION OF WRECKED PROPERTY. Sec. 544. Detaining wrecked property after salvage paid. 54.". Unlawful 1 taking of wrecked property. Detaining wrecked property after salvage paid. 544. Every person who keeps any wrecked property, or the proceeds thereof, after the salvage and expenses chargeable thereon have been agreed to or adjusted, and the amount there- of has been paid to him, is punishable by fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year, or both. Unlawful taking of wrecked property. 545. Every person who takes away any goods from any stranded vessel, or any goods cast by the sea upon the land, or found in any bay or creek, or knowingly has in his posses- sion any goods so taken or found, and does not deliver the same to the sheriff of the county where they were found, or notify him of his readiness to do so within tnirty days after the same have been taken by him, or have come into his pos- session, is guilty of a misdemeanor. CHAPTER XI. FRAUDULENT DESTRUCTION OF PROPERTY INSURED. Sec. 548. Burning or destroying property insured. 549. Presenting false proofs upon policy of insurance. Burning or destroying property insured. 548. Every person who wilfully burns, or in any other man- ner injures or destroys any property which is at the time in- sured against loss or damage by fire or by any other casualty, with intent to defraud or prejudice the insurer, whether the 549-555 PENAL CODE. 586 same be the property of or in possession of such person or of any other, is punishable by imprisonment in the state prison not less than one nor more than ten years. 120 Cal. 169; 120 Cal. 687. Presenting false proofs upon policy of insurance. 549. Every person who presents or causes to be presented: any false or fraudulent claim, or any proof in support of any such, claim, upon any contract of insurance for uie payment of any loss, or who prepares, makes, or subscribes any account, certificate of survey, affidavit, or proof of loss, or otner book, paper, or writing with intent to present or use the same, or to allow it to be presented or used in support of any such claim, is punishable by imprisonment in the state prison not exceeding three years, or by a fine not exceeding one thousand dollars, or by both. CHAPTER XII. FALSE WEIGHTS AND MEASURES. Sec. 552. "False weight" and "measure" defined. VW. Using false weights or measures. .">4. Stamping false weight, etc., on casks or packages. .">5. Weight by the ton or pound. "False weight" and "measure" defined. 552. A false weight or measure is one which does not con- form to the standard established by the laws of the United. States of America. Using false weights or measures. 553. Every person who uses any weight or measure, know- ing it to be false, by which use another is defrauded or other- wise injured, is guilty of a misdemeanor. Stamping false weight, etc., on casks or packages. 554. Every person who knowingly marks or stamps false or short weight or measure, or false tare, on any cask or pack- age, or knowingly sells, or offers for sale, any cask or package so marked, is guilty of a misdemeanor. Weight by the ton or pound. 555. In all sales of coal, hay, and other commodities, usually sold by the ton or fractional parts thereof, the seller must giv& to the purchaser full weight, at the rate of two thousand pounds to the ton; and in all sales of articles which are sold in com- merce by avoirdupois weight, the seller must give to the pur- chaser full weight, at the rate of sixteen ounces to- the pound; and any person violating this section is\ guilty of a misdemeanor. [New section approved February 15, 1876; Amendments 1875-76, p. 112. In effect in sixty days.] 587 FRAUDULENT INSOLVENCIES. 557-560 CHAPTER XIII. FRAUDULENT INSOLVENCIES BY CORPORATIONS, AND OTHER FRAUDS IN THEIR MANAGEMENT. Sec. 557. Frauds in subscriptions for stock of corporations. 558. Frauds in procuring organization, etc , of corporation. .">."'.). Unauthorized use of names in prospectus, etc. 560. Misconduct of directors of stock corporations. 561. Savings-bank officer overdrawing his account. 562. Receiving deposits in insolvent banks. 563. Frauds in keeping accounts in books of corporations. 564. Officer of corporation publishing false reports. 565. Officer of corporation to permit an inspection 566. Officer of railroad company contracting debt in its behalf exceeding its available means. 567. Debt contracted in violation of last section not invalid. 568. Director of a corporation! presumed to have knowledge of its affairs. 569. Director present at meeting, when presumed to have assented to proceedings. 570. Director absent from meeting, when presumed to have assented to proceedings. 571. Foreign corporations. 572. "Director" defined. Frauds in subscriptions for stock of corporations. 557. Every person who signs the name of a fictitious person to any subscription for or agreement to take stock in any cor- poration existing or proposed, and every person who signs to any subscription or agreement the name of any person, know- ing that such person has not means or does not intend in good faith to comply with all the terms thereof, or under any under- standing or agreement that the terms of such subscription or agreement are not to be complied with or enforced, is guilty of a misdemeanor. Frauds in procuring organization, etc., of corporation. 558. Every officer, agent, or clerk of any corporation, or of any persons proposing to organize a corporation, or to increase the capital stock of any corporation, who knowingly exhibits any false, forged, or altered book, paper, voucher, security, or other instrument of evidence to any public officer or board authorized by law to examine the organization of such cor- poration, or to investigate its affairs, or to be allowed an in- crease of its capital, with intent to deceive such officer or board in respect thereto, is punishable by imprisonment in the state prison not less than three nor more than ten years. Unauthorized use of names in prospectus, etc. 559. Every person who, without being authorized so to do, subscribes the name of another to or inserts the name of another in any prospectus, circular, or other advertisement, or announce- ment of any corporation or joint-stock association, existing or intended to be formed, with intent to permit the same to be published, and thereby to lead persons to believe that the per- son whose name is so subscribed is an officer, agent, member or promoter of such corporation or association, is guilty of a misdemeanor. Misconduct of directors of stock corporations. 560. Every director of any stock corporation who concurs in any vote or act of the directors of such corporation or any of them, by which it is intended, either: 561-564 PENAL CODE. 588 1. To make any dividend, except from the surplus profits aris- ing from the business of the corporation, and in the cases and manner allowed by law; or, 2. To divide, withdraw, or in any manner, except as pro- vided by law, pay to the stockholders, or any of them, any part of the capital stock of the corporation; or, 3. To discount or receive any note or other evidence of debt in payment of any installment actually called in and required to be paid, or with the intent to provide the means of maKing such payment; or, 4. To receive or discount any note or other evidence of debt, with the intent to enable any stockholder to withdraw any part of the money paid in by him, or his stock; or, 5. To receive from any other stock corporation, in exchange for the shares, notes, bonds, or other evidences of debt of their own corporation, shares of the capital stock of such other cor- poration, or notes, bonds, or other evidences of debt issued by such other corporation; Is guilty of a misdemeanor. 72 Cal. 56; 116 Cal. 415. Savings-bank officer overdrawing his account. 561. Every officer, agent, teller, or clerk of any savings bank, who knowingly overdraws his account with such bank, and thereby wrongfully obtains the money, note, or funds of such bank, is guilty of a misdemeanor. Receiving deposits in insolvent banks. 562. Every officer, agent, teller, or clerk of any bank, and every individual banker, or agent, teller, or clerk of any indi- vidual banker, who receives any deposits, knowing that such bank, or association, or banker is insolvent, is guilty of a mis- demeanor. Frauds in keeping accounts in books of corporations. 563. Every director, officer, or agent of any corporation or joint-stock association, who knowingly receives or possesses himself of any property of such corporation or association, otherwise than in payment of a just demand, and who, with intent to defraud, omits to make, o'r to cause or direct to be made, a full and true entry thereof in the books or accounts of such corporation or association, and every director, officer, agent, or member of any corporation or joint-stock association who, with intent to defraud, destroys, alters, mutilates, or falsifies any of the books, papers, writings, or securities belong- ing to such corporation or association, or makes, or concurs In making, any false entries, or omits, or concurs in omitting to make any material entry in any book of ac- counts, or other record or document kept by such corporation or association, is punishable by imprisonment in the state pris- on not less than three nor more than ten years, or by impris- onment in a county jail not exceeding one year, and a fine not exceeding five hundred dollars, or by both such fine and im- prisonment. :.:: ral. 615; 103 Cal. 202. Officer of corporation publishing false reports. 564. Every director, officer, or agent of any corporation or joint-stock association, who knowingly concurs in making, pub- 589 FRAUDULENT INSOLVENCIES. 565-570 lishing, or posting any written report, exhibit, or statement of its affairs or pecuniary condition, or book or notice containing any material statement which is false, or refuses to make any book or post any notice required by law, in the manner required by law, other than such as are mentioned in this chapter, is guilty of a felony. [Amendment approved January 27, 1876; Amendments 1875 : 6, p. 113. In effect in sixty days.] 53 Cal. 648. Officer of corporation to permit an inspection. 565. Every officer or agent of any corporation, having or keeping an office within this state, who has in his custody or control any book, paper, or document of such corporation, and who refuses to give to a stockholder or member or such cor- poration, lawfully demanding, during office hours, to inspect or take a copy of the same, or of any part thereof, a reasonable opportunity so to do, is guilty of a misdemeanor. Officer of railroad company contracting debt in its behalf exceeding its available means. 566. Every officer, agent, or stockholder of any railroad com- pany, who knowingly assents to or has any agency in contract- ing any debt by or on behalf of such company, unauthorized by a special law for the purpose, the amount of which debt, with other debts of the company, exceeds its available means for the payment of its debts, in its possession, under its con- trol, and belonging to it at the time such debt is contracted, including its bona fide and available stock subscriptions, and exclusive of its real estate, is guilty of a misdemeanor. Debt contracted in violation of last section not invalid. 567. The last section does not affect the validity of a debt created in violation of its provisions, as against the company. Director of a corporation presumed to have knowledge of its affairs. 568. Every director of a corporation or joint-stock associa- tion is deemed to possess such a knowledge of the affairs of his corporation as to enable him to determine whether any act, pro- ceeding, or omission of its directors is a violation of this chap- ter. Director present at meeting, when presumed to have assented to proceedings. 569. Every director of a corporation or joint-stock associa- tion who is present at a meeting of the directors at which any act, proceeding, or omission of such directors, in violation of this chapter occurs, is deemed to have concurred therein, unless he at the time causes or in writing requires his dissent there- from to be entered in the minutes of the directors. Director absent from meeting, when presumed to have t assented to proceedings. 570. Every director of a corporation or joint-stock associa- tion, although not present at a meeting of the directors at which any act, proceeding, or omission of such directors, in violation of this chapter occurs, is deemed to have concurred therein, if the facts constituting such violation appear on the records or minutes of the proceedings of the board of directors, and he remains a director of the same company for six months there- after, and does not within that time cause, or in writing require, 571-579 PENAL CODE. 590 his dissent from such illegality to be entered in the minutes of the directors. Foreign corporations. 571. It is no defense to a prosecution for a violation of the provisions of this chapter, that the corporaton was one created by the laws of another state, government, or country, if It was one carrying on business or keeping an office therefor within, this state. "Director" defined. 572. The term "director," as used in this chapter, embraces any of the persons having by law the direction or management of the affairs of a corporation, by whatever name such persons are described in its charter or known by law. CHAPTER XIV. FRAUDULENT ISSUE OF DOCUMENTS OF TITLE TO MER- CHANDISE. Sec. 577. Issuing fictitious hills of lading, etc. 578. Issuing fictitious warehouse receipts. 57!). Erroneous bills of lading or receipts issued in good faith. 5S(i. Duplicate receipts must be marked "duplicate." 581. Selling, etc., property received for transportation or storage. 583. Property demanded by process of law. Issuing fictitious bills of lading, etc. 577. Every person, being the master, owner, or agent of any vessel, or officer or agent of any railroad, express, or transporta- tion company, or otherwise being or representing any carrier, who delivers any bill of lading, receipt, or other voucher, by which it appears that any merchandise of any description has been shipped on board any vessel, or delivered to any railroad, express, or transportation company or other carrier, unless the same has been so shipped or delivered, and is at the time act- ually under the control of such carrier, or the master, owner, or agent of such vessel, or of some officer or agent of such com- pany, to be forwarded as expressed in such bill of lading, receipt, or voucher, is punishable by imprisonment in the state prison not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Issuing fictitious warehouse receipts. 578. Every person carrying on the business of a warehouse- man, wharfinger, or other depositary of property, who issues any receipt, bill of lading, or other voucher for any merchandise of any description, which has not been actually received upon the premises of such person, and is not under his actual con- trol at the time of issuing such instrument, whether such instru- ment is issued to a person as being the owner of such mer- chandise or as security for any indebtedness, is punishable by imprisonment in the state prison not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Erroneous bills of lading or receipts Issued in good faith. 579. No person can be convicted of an offense under the last two sections by reason that the contents of any barrel, box, case, cask, or other vessel or package mentioned In the bill of lading, receipt, or other voucher did not correspond with 591 FRAUDULENT ISSUE OF DOCUMENTS. 580-588 the description given in such instrument of the merchandise received, if such description corresponded substantially with the marks, labels, or brands upon the outside of such vessel, or package, unless it appears that the accused knew that such marks, labels, or brands were untrue. Duplicate receipts must be marked "duplicate." 580. Every person mentioned in this chapter, who issues any second or duplicate receipt or voucher, of a kind specified therein, at a time while any former receipt or voucher for the merchandise specified in such second receipt is outstanding and uncanceled, without writing across the face of the same the word "duplicate," in a plain and legible manner, is punishable by imprisonment in the state prison not exceeding five years, or by a fine riot exceeding one thousand dollars, or both. Selling, etc., property received for transportation or storage. 581. Every person mentioned in this chapter, who sells, hypothecates, or pledges any merchandise for which any bill of lading, receipt, or voucher has been issued by him, without the consent in writing thereto of the person holding such bill, receipt, or voucher, is punishable by imprisonment in the state prison not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Property demanded by process of law. 583. The last two sections do not apply where property is demanded or sold by virtue of urocess of law. CHAPTER XV. MALICIOUS INJURIES TO RAILROAD BRIDGES, HIGHWAYS, BRIDGES, AND TELEGRAPHS. Sec. ">87. Injuries to railroads and railroad bridges. .~.s.x. Injuries to highways, private ways, and bridges. 589. Injuries to toll-houses and gates. r>!Mi. Injuries to milestones and guide-boards. 591. Injuring telegraph lines. r.'.ti'. Taking water from or obstructing canals. 593. Penalty 'for interference with electric wires. Injuries to railroads and railroad bridges. 587. Every person who maliciously, either: 1. Removes, displaces, injures, or destroys any part of any railroad, whether for steam or horse cars, or any track of any railroad, or any branch or branch way, switch, turnout, bridge, viaduct culvert, embankment, station-house, or other structure or fixture, or any part thereof, attached to or connected with any railroad; or, 2. Places any obstruction upon the rails or track of any rail- road, or of any switch, branch, branchway, or turnout connected with any railroad; Is punishable by imprisonment in the state prison not exceed- ing five years, or in the county jail not less than six months. 73 Cal. 571. Injuries to highways, private ways, and bridges. 588. Every person who maliciously digs up, removes, dis- places, breaks, or otherwise injures or destroys any public high- way or bridge, or any private way laid out by authority of law, or bridge upon such highway or private way, is punishable by 589-593 PENAL CODE. 592 imprisonment in the state prison not exceeding five years, or In the county jail not exceeding one year. Injuries to toll houses and gates. 589. Every person who maliciously injures or destroys any toll-house or turnpike gate, is guilty of a misdemeanor. Injuries to milestones and guide-boards. 590. Every person who maliciously removes or injures any mile-board, post, or stone, or guide-post, or any inscription on such, erected upon any highway, is guilty of a misdemeanor. Injuring telegraph lines. 591. Every person who maliciously takes down, removes, injures, or obstructs any line of telegraph, or any part thereof, or appurtenance or apparatus connected therewith, or severs any wire thereof, is guilty of a misdemeanor. 127 Cal. 317. Taking water from or obstructing canals. 592. Every person who shall without authority of the owner or managing agent, and with intent to defraud, take water from any canal, ditch, flume or reservoir used for the purpose of holding or conveying water for manufacturing, agricultural, mining, irrigating or generation of power, or domestic uses, or who shall without like authority, raise, lower or otherwise dis- turb any gate or other apparatus thereof, used for tne control or measurement of water, or who shall empty or place, or cause to be emptied or placed, into any such canal, ditch, flume or reservoir, any rubbish, filth or obstruction to the rree flow of. the water, is guilty of a misdemeanor. [Stats. 1899, p. 146.] Penalty for interference with electric wires. 593. Every person who unlawfully and maliciously takes down, removes, injures, interferes with, or obstructs any line erected or maintained by proper authority for the purpose of transmitting electricity for light, heat, or power, or any part thereof, or any insulator or cross-arm, appurtenance or appar- atus connected therewith, or severs or in any way interferes with any wire, cable, or current thereof, is punishable by imprisonment in the state prison not exceeding five years, or by fine not exceeding five hundred dollars, or imprisonment in the county jail not exceeding one year. [Stats. 1901, p. 92.] 593 MALICIOUS INJURIES MISCHIEF. 594-59S'' TITLE XIV. MALICIOUS MISCHIEF. Sec. 594. Malicious mischief In general, defined. 595. Specifications in following sections not restrictive of last section. 596. Poisoning cattlo. 597. Killing, maiming, or torturing animals. 598. Killing, etc.. birds in cemeteries. 600. Burning buildings, etc., not the subject of arson. 601. Using gunpowder, etc., In destroying or injuring any buildings. 602. Malicious injuries to freehold. 603. Limitation upon the operations of the preceding section. 604. Injuries to standing crops. 605. Removing, defacing, or altering landmarks. 606. Destroying or injuring jails. 607. Destroying or injuring bridges, dams, etc. 608. Burning or injuring rafts. Setting adrift vessels. 609. Removing buoys and beacons. 610. Masking or removing signals, or exhibiting false lights. 611. Obstructing navigable streams. 612. Depositing sawdust, etc., in Humboldt Bay. 613. Throwing overboard ballast, or obstructing navigation. 614. Mooring vessels to buoys. 615. Injuries to signals, etc., in United States survey. 616. Destroying or tearing down notices, etc. 617. Injuring or destroying written instrument. 618. Opening or publishing sealed letters. 619. Disclosing contents of telegraphic message. 620. Altering telegraphic messages. 621. Opening telegrams. 622. Injuring works of art, or improvements. 623. Mutilation of books, etc.. in public libraries. 623*. Detaining books, etc., from public libraries. 624. Breaking or obstructing water-pipes, etc. 625. Drawing water from works after they have been closed. Malicious mischief in general, defined. 594. Every person who maliciously injures or destroys any real or personal property not his own, in cases otherwise than such as are specified in this code, is guilty of a misdemeanor. Specifications in following sections not restrictive of last section. 595. The specification of the acts enumerated in the following sections of this chapter is not intended to restrict or qualify the interpretation of the preceding section. Poisoning cattle. 596. Every person who wilfully administers any poison to an animal, the property of another, or maliciously exposes any poi- sonous substance, with the intent that the same shall be taken or swallowed by any such animal, is punishable by imprison- ment in the state prison not exceeding three years, or in the county jail not exceeding one year, and a fine 1 not exceeding five hundred dollars. 81 Cal. 212. Killing, maiming, or torturing animals. 597. Every person who maliciously kills, maims, or wounds an animal, the property of another, or who maliciously and cruelly beats, tortures, or injures any animal, whether belonging to himself or another, is guilty of a misdemeanor. Killing, etc., birds in cemeteries. 598. Every person who, within any public cemetery or bury- ing-ground, kills, wounds, or traps any bird, or destroys any CRIMES --38 600-602 PENAL CODE. 594 bird's nest other than swallows' nests, or removes any eggs or young birds from any nest, is guilty of a misdemeanor. Burning building not subject to arson. 600. Every person who wilfully and maliciously burns any bridge exceeding in value fifty dollars, or any structure, snow- shed, or vessel, or boat, not the subject of arson, or any tent, or any stack of hay or grain or straw of any kind, or any pile of baled hay or straw, or any pile of potatoes, or beans, or vege- tables, or produce, or fruit of any kind, whether sacked, boxed, crated, or not, or any growing or standing grain, grass, or tree, or any fence, or any railroad car, lumber, cord-wood, railroad ties, telegraph poles, or shakes, or any tule land or peat ground of the value of twenty-five dollars or over, not the property of such person, is punishable by imprisonment in the state prison not less than one year, nor more than ten years. [Stats. 1901, p. 268.] Using gunpowder, etc., in destroying or injuring any buildings. 601. Every person who maliciously, by the explosion of gun- powder or other explosive substance, destroys, throws down, or injures the whole or any part of any building, by means of which the life or safety of a human being is endangered, is guilty of felony. Malicious injuries to freehold. 602. Every person who wilfully commits any trespass by either: 1. Cutting down, destroying, or injuring any kind of wood or timber standing or growing upon the lands of another; or 2. Carrying away any kind of wood or timber lying on such lands; or 3. Maliciously injuring or severing from the freehold of an- other anything attached thereto, or the produce thereof; or 4. Digging, taking, or carrying away from any lot situated within the limits of any incorporated city, without the license of the owner or legal occupant thereof, any earth, soil, or stone; or 5. Digging, taking, or carrying away from any land in any of the cities of the state, laid down on the map or plan of such city, or otherwise recognized or established as a street, alley, avenue, or park, without the license of the proper authorities, any earth, soil, or stone; or 6. Putting up, affixing, fastening, printing, or painting upon any property belonging to the state, or to any city, county, town, or village, or dedicated to the public, or upon any prop- erty of any person, without license from the owner, any notice, advertisement, or designation of, or any name for any commod- ity, whether for sale or otherwise, or any picture, sign, or device intended to call attention thereto; or 7. Entering upon any lands owned by any other person or persons whereon oysters or other shellfish are planted or grow- ing; or injuring, gathering, or carrying away any oysters or other shell-fish planted, growing, or being on any such lands, whether covered by water or not, without the license of the owner or legal occupant thereof; or destroying or removing. 595 MALICIOUS MISCHIEF. 603-607 or causing to be removed or destroyed, any stakes, marks, fences, or signs intended to designate the boundaries and limits of any such lands, is guilty of a misdemeanor. [Amendment ap- proved March 30, 1878; Amendments 1877-8, 118. In effect March 30, 1878.] 112 Cal. 204. Limitation upon the operations of the preceding section. 603. The following acts do not constitute a public offense, within the meaning of the preceding section: 1. Gathering pitch from trees on the public lands of the state or United States, unless the bark from such trees is removed for more than one-eighth of their circumference, or cut made more than three inches in depth into the wood thereof; 2. Cutting trees upon the public lands of the state or United States, in good faith, for the purpose of manufacturing the same into lumber or firewood, or . preparing such lands for agricul- tural or mining purposes; Unless such acts are committed upon swamp and overflowed, tide, salt marsh, or school lands belonging to the state, or within the limits of the lands granted by the United States to this state by act of Congress of June thirteenth, eighteen hundred and sixty-four, relating to the Yosemite Valley and Mariposa Big Tree Grove. Injuries to standing crops. 604. Every person who maliciously injures or destroys any standing crops, grain, cultivated fruits or vegetables, the prop- erty of another, in any case for which a punishment is not otherwise prescribed by this code, is guilty of a misdemeanor. Removing, defacing or altering landmarks. 605. Every person who either: 1. Maliciously removes any monument erected for the pur- pose of designating any point in the boundary of any lot or tract of land, or a place where a subaqueous telegraph cable lies; or, 2. Maliciously defaces or alters the marks upon any such monument; or, 3. Maliciously cuts down or removes any tree upon which any such marks have been made for such purpose, with intent to destroy such marks; Is guilty of a misdemeanor. Destroying or injuring jails. 606. Every person who wilfully and intentionally breaks down, pulls down, or otherwise destroys or injures any public jail or other place of confinement, is punishable by fine n~ot exceeding ten thousand dollars, and by imprisonment in the state prison not exceeding five years. 68 Cal. 435. Destroying or injuring bridges, dams, etc. 607. Every person who wilfully and maliciously cuts, breaks, injures, or destroys any bridge, dam, canal, flume, aqueduct, levee, embankment, reservoir, or other structure erected to cre- ate hydraulic power, or to drain or reclaim any swamp and overflowed tide or marsh land, or to store or conduct water for mining, manufacturing, reclamation, or agricultural purposes, or for the supply of the inhabitants of any city or town, or any 608-612 PENAL CODE. 596 embankment necessary to the same, or either of them, or wil- fully or maliciously makes, or causes to be made, any aperture in such dam, canal, flume, aqueduct, reservoir, embankment, levee, or structure, with intent to injure or destroy the same; or draws up, cuts, or injures any piles fixed in the ground for the purpose of securing any sea-bank, or sea-walls, or any dock, quay, or jetty, lock, or sea-wall; or who, between the first day of October and the fifteenth day of April of each year, plows up or loosens the soil in the bed or on the sides of any natural watercourse or channel, without removing such soil within twenty-four hours from such watercourse or channel; or who, between the fifteenth day of April and the first day of October of each year, shall plow up or loosen the soil in the bed or on the sides of such natural watercourse or channel, and shall not remove therefrom the soil so plowed up or loosened before the first day of October next thereafter, is guilty of a misdemeanor, and upon conviction, punishable by a fine not less than one hun- dred dollars and not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding two years, or by both; provided, that nothing in this section shall be construed so as to in any manner prohibit any person from digging or removing soil from any such watercourse or channel, for the purpose of mining. [Amendment approved April 12, 1880; Amendments 1880, 36. In effect April 12, 1880.1 57 Cal. 105. Burning or injuring rafts. Setting adrift vessels. 608. Every person who wilfully and maliciously burns, injures, or destroys any pile or raft of wood, plank, Boards, or other lumber, or any part thereof, or cuts loose or sets adrift any such raft or part thereof, or cuts, breaks, injures, sinks, or sets adrift any vessel, the property of another, is punishable by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months. Removing buoys and beacons. 609. Every person who wilfully removes any buoy or beacon, placed in any waters within this state by lawful authority, is guilty of a misdemeanor. , Masking or removing signals, or exhibiting false lights. 610. Every person who unlawfully masks, alters, or removes any light or signal, or wilfully exhibits any light or signal, with intent to bring any vessel into danger, is punishable by impris- onment in the state prison not less than three nor more than ten years. Obstructing navigable streams. 611. Every person who unlawfully obstructs the navigation of any navigable stream, is guilty of a misdemeanor. Depositing sawdust, etc., in Humboldt Bay. 612. Every person who throws, deposits, or permits another in his employ to throw or deposit, any sawdust, slabs, or refuse lumber, in any place! where it may be carried or fall into the waters of Humboldt Bay, without first having constructed piers, bulkheads, dams, or other contrivances, approved by the board of supervisors of Humboldt County, to prevent the same from escaping into the channels of such bay, is guilty of a misde- meanor. 597 MALICIOUS MISCHIEF. 613-619 Throwing overboard ballast, or obstructing navigation. 613. Every person who, within the anchorage of any port, harbor, or cove of this state, into which vessels may enter for the purpose of receiving or discharging cargo, throws over- board from any vessel the ballast, or any part thereof, or who otherwise places or causes to be placed in such port,- harbor, or cove, any obstructions to the navigation thereof, is guilty of a misdemeanor. Mooring vessels to buoys. 614. Every person mooring any vessel to or hanging on with a vessel to any buoy or beacon, placed by competent authority in any navigable waters of this state, is guilty, of a misde- meanor. Injuries to signals, etc., in United States survey. 615. Every person who wilfully injures, defaces, or removes any signal, monument, building, or appurtenance thereto, placed, erected, or used by persons engaged in the United States Coast Survey, is guilty of a misdemeanor. Destroying or tearing down notices, etc. 616. Every person who intentionally defacete, obliterates, tears down, or destroys any copy or transcript, or extract from or of any law of the United States or of this state, or any proc- lamation, advertisement, or notification set up at any place in this state, by authority of any law of the United States or of this state, or by order of any court, before the expiration of the time for which the same was to remain set up, is 'punish- able by fine not less than twenty nor more than one hundred dollars, or by imprisonment in the county jail not more than one month. Injuring or destroying written instrument. 617. Every person who maliciously mutilates, tears, defaces, obliterates, or destroys any written instrument, the property of another, the false making of which would be forgery, is punish- able by imprisonment in the state prison for not less than one nor more than five years. Opening or publishing sealed letters. 618. Every person who wilfully opens or reads, or causes to be read, any sealed letter not addressed to himself, without being authorized so to do, either by the writer of such letter or by the person to whom it is addressed, and every person who, without the like authority, publishes any of the contents of such letter, knowing the same to have been unlawfully opened, is guilty of a misdemeanor. Disclosing contents of telegraphic message. 619. Every person who wilfully discloses the contents of a telegraphic message, or any part thereof, addressed to another person, without the permission of such person, unless directed so to do by the lawful order of a court, is punishable by impris- onment in the state prison not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding five thousand dollars, or by both fine and imprisonment. [Amendment approved April 15, 1880; Amendments 1880, 38. In effect in sixty days.] 620-625 PENAL CODE. 598 Altering telegraphic messages. 620. Every person who wilfully alters the purport, effect, or meaning of a telegraphic message, to the injury of another, is punishable as provided in the preceding section. Opening telegrams. 621. Every person not connected with any telegraph office who, without the authority or consent of the person to whom the same may be directed, wilfully opens any sealed envelope inclosing a telegraphic message and addressed to any other per- son, with the purpose of learning the contents of such message, or who fraudulently represents any other person and thereby procures to be delivered to himself any telegraphic message addressed to such other person, with the intent to use, destroy, or detain the same from the person or persons entitled to receive such message, is punishable as provided in section 619. Injuring works of art, or improvements. 622. Every person, not the owner thereof, who wilfully injures, disfigures, or destroys any monument, work of art, or useful or ornaaental improvement within the limits of any village, town, or city, or any shade tree or ornamental plant growing therein, whether situated upon private ground or on any street, sidie- walk, or public park or place, is guilty of a misdemeanor. Mutilation of books, etc., in public libraries. 623. Every person who maliciously cuts, tears, defaces, breaks, or injures any book, map, chart, picture, engraving, statue, coin, model, apparatus, or other work of literature, art, mechanics, or object of curiosity, deposited in any public library, gallery, museum, collection, fair, or exhibition, is guilty of a misdemeanor. [Stats. 1901, p. 99.] Detaining books, etc., from public libraries. 623 1 /. Whoever wilfully detains any book, newspaper, mag- azine, pamphlet, manuscript, or other property belonging to any public or incorporated library, reading-room, museum or other educational institution, for thirty days after notice in writing to return the same, given after the expiration of the time which by the rules of such institution such article or other property may be kept, is guilty of a misdemeanor and shall be pun- ished accordingly. [In effect sixty days from March 14, 1899. Stats. 1899, p. 97.] Breaking or obstructing water pipes, etc. 624. Every person who wilfully breaks, digs up, obstructs, or injures any pipe or main for conducting gas or water, or any works erected for supplying buildings with gas or water, or any appurtenances or appendages therewith connected, is guilty of a misdemeanor. Drawing water from works after they have been closed. 625. Every person who, with intent to defraud or injure, opens or causes to be opened, or draws water from any stop- cock or faucet by which the flow of water is controlled, after having been notified that the same has been closed or shut for specific cause, by order of competent authority, is guilty of a misdemeanor. 699 VIOLATION OF GAME LAWS. G26-626& TITLE XV. MISCELLANEOUS CRIMES. Chapter I. Violation of the laws for the preservation of game and fish, 626-37. II. Of other and miscellaneous offenses, 638-5i!t;i. Limit of deer that may bo killed in one season. 626j. Running or trailing deer during close season. 626k. Sale of certain game- prohibited. 6261. Live birds and animals for certain purposes. 626m. Night-time hunting is prohibited. 627. Trespass' :\ misdemeanor. 627a. Transportation companies. 627b. Shipments of game must be labeled, etc. 628. Preservation of fish. Close seasons. 629. Having screens in fishing. 631. Netting or trapping, etc , prohibited. 631a. Penalty for violations of provisions of this act. 631b. Disposition of money from fines. 632. Trout, protection of. 634. Taking, sale, or possession of salmon, when prohibited. 635. Fse of explosives and pollution of waters. 636. Setting net, trap. etc.. for fish. 636a. Nets, seines, etc., prohibited. 637. Fislnvays and ladders, penalties for not keeping. 637a. Meadow-larks, protection of. Destruction of grouse, ducks, etc., when prohibited. 626. Every person who, between the first day of February and the first day of October of any year, hunts, pursues, takes, kills, or destroys, or has in his possession, whether taken or killed in the state of California, or shipped into the state from any other state, territory, or foreign country, any quail, part- ridge, grouse, or sage hen, or any kind of wild duck, or any rail, or any curlew, ibis, or plover, is guilty of a misdemeanor. [Stats. 1901, p. 819.] 103 Cal. 479; Doves. 626a. Every person who, between the first day of February and the first day of August of the same year, hunts, pursues, takes, kills, or destroys, or has in his possession any dove, is guilty of a misdemeanor. [Stats. 1901, p. 819.] Nests, or eggs. 626b. Every person who destroys or has in his possession the nest or eggs of any of the birds mentioned in this chapter^ is guilty of a misdemeanor. [Stats. 1901, p. 819.] 626C-626* PENAL CODE. 600 Pheasants, etc. 626c. Every person who takes, kills, or destroys, or has in his possession any Mongolian or English pheasant, or any bob- white, or eastern or Chinese quail, or English partridge, is guilty of a misdemeanor. [Stats. 1901, p. 819.] Limit of day's bag. 626d. Every person who, during any one calendar day, takes, kills, or destroys, or has in his possession, more than twenty- five quail, partridge, snipe, curlew, or ibis, or more than fifty doves, or more than fifty ducks, or more than twenty rails, is guilty of a misdemeanor. [Stats. 1901, p. 820.] Female deer, etc. 626e. Every person who pursues, takes, kills, or destroys, or has in his possession, any female deer or spotted fawn, or any antelope, elk, or mountain sheep, is guilty of a misdemeanor. [Stats. 1901, p. 820.] Male deer, close season. 626f. Every person who, between the first day of October of any year and the first day of August of the following year, hunts, pursues, takes, kills, or destroys, or has in his posses- sion, whether taken or killed in the state of California, or shipped into the state from any other state, territory, or for- eign country, any male deer or any deer meat, is guilty of a misdemeanor. [Stats. 1901, p. 820.] s Squirrels. 626g. Every person who hunts, takes, kills, or destroys, or has in his possession, between the first day of February and the first day of August of any year, any species of tree squir- rel, is guilty of a misdemeanor. [Stats. 1901, p. 820.] Sale or possession of deer pelts. 626h ( Every person who buys, sells, offers or exposes for sale, transports or tarries, or has in his possession, the skin, pelt or hide of any female deer, or spotted fawn, or any deer hide or pelt from which the evidence of sex has been removed, is guilty of a misdmeanor. [Stats. 1901, p. 820.] Limit of deer that may be killed in one season. 626i. Every person who takes, kills, or destroys, or has in his possession, whether taken or killed in the state of Califor- nia or shipped into the state from any other state, territory, or foreign country, more than three deer, during any one open season, is guilty of a misdemeanor. [Stats. 1901, p. 820.] Running or trailing deer during close season. 626j. Every person who, controlling or having in his pos- session any deerhounds, foxhounds, greyhounds, or any other kind of dog, wilfully suffers, permits, or allows any of said dogs to run, track, or trail any deer during the time when it is unlawful to kill the same, is guilty of a misdemeanor. [Stats. 1901, p. 820.] Sale of certain game prohibited. 626k. Every person who buys, sells, offers, or exposes for sale, barter or trade, any quail, partridge, pheasant, grouse, 601 VIOLATION OF GAME LAWS. 626J-6276 sage hen, ibis, or plover, or any deer meat, whether taken or killed in the state of California, or shipped into the state from any other stats, territory, or foreign country, is guilty of a misdemeanor. LStats. 1901, p. 820.] Live birds and animals for certain purposes. 626!. Nothing in this act shall be held to prohibit the pos- session for scientific purposes, or the taking alive for the pur- pose of propagation, any of the animals or birds mentioned in this section; provided, permission to take and possess said birds or animals for said purposes shall have been first obtained in writing from the game commissioner or the state board of fish commissioners, and said permission shall accompany the shipment of said birds or animals, and shall exempt them from seizure while passing through any part of the state. [Stats. 1901. p. 821.] Nighttime hunting is prohibited. 626m. Every person who, at any time, between one-half hour after sundown and one-half hour before sunrise of the follow- ing day, hunts, pursues, takes, kills, or destroys, any of the birds mentioned in this chapter, is guilty of a misdemeanor. [Stats. 1901, p. 821.] Trespass a misdemeanor. 627. Every person who upon any enclosed or cultivated grounds, which is private property, and where signs are dis- played not less than three to the mile, along all exterior bound- aries thereof, forbidding such shooting or hunting, hunts, pur- sues, takes, kills, or destroys, any quail, partridge, pheasant, grouse, dove, wild duck, snipe, curlew, ibis, or plover, or any deer, without permission first obtained from the owner or per- son in possession of such ground, or who maliciously tears down, mutilates, or destroys any sign, signboard, or other notice forbidding shooting on private property, is guilty of a misde- meanor. [Stats. 1901, p. 821.] 119 Cal. 57S. Transportation companies. 627a. Every railroad company, express company, transporta- tion company, or other common carrier, its officers, agents and servants, and every other person who transports, carries or takes out of this state, or who receives for the purpose of transporting from the state, any deer, deer skin, buck, doe or fawn, or any quail, partridge, pheasant, grouse, prairie chicken, dove, wild pigeon, or any wild duck, rail, snipe, ibis, curlew, or plover, except for the purposes of propagation, or who trans- ports, carries or takes from the state, or receives for the pur- pose of transportation from the state, any such animal or bird, or any part of the carcass thereof, is guilty of a misdemeanor. The right to transport for the purposes of propagation, or for scientific purposes, must first be obtained by permit in writing from the game commissioner or the state board of fish com- missioners. [Stats. 1901, p. 821.] Shipments of game must be labeled; etc. 627b. Every railroad company, steamship company, express company, transportation company, transfer company, and every other person, who ships, or receives for shipment or trans- 628-629 PENAL CODE. 602 portation, from any one person, during any one day, more than twenty-five quail, partridge, grouse or sage hen, snipe, curlew, or ibis, or more than fifty doves, or more than twenty rail, or more than fifty wild ducks, or who transports any of said birds or any deer, in any quantity, unless such birds or deer are at all times in open view, and labeled with the name and residence of the person by whom they are shipped, is guilty of a misde- meanor. [Stats. 1901, p. 821.] Preservation of fish. Close seasons. 628. Every person who, between the thirty-first day of May and the first day of July, buys, sells, takes, catches of has m his possession, any striped bass, or who, between the first day of January and the first day of July, buys, sells, takes, catches or has in his possession, any black bass, or, who, between the first day of April and the fifteenth day of August, buys, sells, takes, catches or has in his possession, any lobster or craw- fish, or, who, between the first day of May and the first day of September, buys, sells, takes, catches, kihs or has in his pos- session, any shrimp, or, who, at any time, buys, sells, takes, catches, kills or has in his possession, any striped bass of less than one pound in weight, or any lobster or crawfish of less than nine and one-half inches in length, measured from one extremity to the other exclusive of legs, claws or feeiers, or any sturgeon or any egg-bearing female lobster, or any female crab, or any abalone shells, or abalone the shell of which shall measure less than fifteen inches around the outer edge of the shell, or, who, by seine or other means, catches the young fish of any species and does not immediately return the same to the water alive, or who buys, sells, or offers for sale or has in his possession, any such fish, whether fresh or dried, or who catches, takes, kills or carries away any fish from any pond or reservoir belonging to, or controlled by, the board of fish com- missioners, or any person, or corporation, without the consent of the owners thereof, which pond or reservoir has been stocked with fish, or who, except with hook and line, takes, catches or kills any black bass whatsoever, or any kind of fish, from any river or stream upon which the state or United States fish hatchery is maintained, is guilty of a misdemeanor, and punishable by fine not less than twenty dollars nor more than five hundred dollars, or by imprisonment in the county jr.il not less than ten nor more than one 'hundred and fifty days, or by both such fine and imprisonment. All fines collected for any violation of any of the provisions of this section must be paid into the "fish commission fund." Nothing in this section prohibits the United States fish commission and the fish com- mission of this state from taking at all times such fish as they deem necessary for the purpose of artificial hatching. It is no defense in a prosecution for a violation of any of the provisions of this section that the fish were caught or taken outside, or within, this state. [Stats. 1901, p. 54. [ Having screens in fishing. 629. Any person or persons, corporation or corporations, owning, in whole or in part, or leasing, operating, or having in charge, any millrace, irrigating-ditch, or canal, taking or receiv- ing its waters from any river, creek, stream, or lake in which 603 VIOLATION OF GAME LAWS. 631-631 fish have been placed or may exist, shall put, or cause to be placed and maintain over the inlet of said ditch, canal, or millrace, a wire screen of such construction and fineness, strength and quality, as shall prevent any such fish from enter- ing such ditch, canal, or millrace, when required to do so by the fish commissioners. Any person or corporation violating the provisions of this section, or who shall neglect or refuse to put up or maintain such screen, shall be guilty of a misde- meanor, and upon conviction thereof shall be punished by a fine of not less than ten dollars nor more than one hundred dollars, and may be imprisoned at the rate of two dollars per day until such fine be paid or satisfied; provided, that the con- tinuance from day to day of the neglect or refusal, after noti- fication in writing by the fish commissioners, shall constitute a, separate offense. [New section approved March 27, 1895; Stats. 1895, p. 259. In effect immediately.] Netting or trapping, etc., prohibited. 631. Every person who takes, kills, or destroys, by the use of any net, pound, cage, trap, set line or wire, any quail, part- ridge, grouse, wild duck, curlew, or ibis, or who transports, buys, sells or gives away, offers or exposes for sale, or has in his possession, any of the said birds that have been taken, killed, or captured by the use of any net, pound, cage, trap, set line or wire, whether taken in the state of California, or shipped into thef state from any other state, territory, or foreign coun- try, is guilty of a misdemeanor; provided, that the same may be taken for purposes of propagation or for scientific purposes, written permission having first been obtained from the game commissioner or the state board of fish commissioners. [Stats. 1901, p. 822.] Penalty for violations of provisions of this act. 631 a. Every person found guilty of a violation of any of the provisions of section six hundred and twenty-six, six hundred and twenty-six a, six hundred and twenty-six b, six hundred and twenty-six c, six hundred and twenty-six d, six hundred and twenty-six e, six hundred and twenty-six f, six hundred and twenty-six g, six hundred and twenty-six h, six hundred and twenty-six i, six hundred and twenty-six j, six hundred and twenty-six k, six hundred and twenty-six m, sections six hun- dred and twenty-seven, six hundred and twenty-seven a, six hundred and twenty-seven b, and section six hundred and thirty- one, must be fined in a sum not less than twenty-five dollars, nor more than five hundred dollars, or imprisonment in the county jail, of the county in which the conviction shall be had, not less than twenty-five days nor more than one hundred and fifty days, or by both such fine and imprisonment. [Stats. 1901, p. 822.] Disposition of money from fines. 631 b. All fines paid or collected for the violation of any of the provisions of sections six hundred and twenty-six, six hun- dred and twenty-six a, six hundred and twenty-six b, six hun- dred and twenty-six c, six hundred and twenty-six d, six hun- dred and twenty-six e, six hundred and twenty-six f, six hundred and twenty-six g, six hundred and twenty-six h, six hundred 632-634 PENAL CODE. 604 and twenty-six i, six hundred and twenty-six j, six hundred and twenty-six k, six hundred and twenty-six m, six hundred and twenty-seven, six hundred and twenty-seven a, six hundred and twenty-seven b, and six hundred and thirty-one, of this chapter, must be paid by the court in which the conviction shall be had into the state treasury to the credit of the game preservation fund, which fund is hereby created, and the moneys in said fund shall be applied to the payment of claims approved by the game commissioner or the state board of fish commissioners for the expense of protecting, restoring and introducing game into the state and to the payment of the expenses incurred in the prosecution of offenders against the provisions of the above named sections. [Stats. 1901, p. 822. J Trout; protection of. 632. Every person who, between the first day of November in any year and the first day of April of the year following, buys, sells, takes, catches, kills or has in his possession, any variety of trout, except steelhead trout (Salmo gairdneri), or who, between the first day of February -and the first day of April, buys, sells, takes, catches or has in his possession, any steelhead trout (Salmo gairdneri), or who, between the first day of November and the first day of April of the year follow- ing, takes, kills, or catches, any steelhead trout above tide water, or who, at any time, buys, sells, or offers for sale, any trout of less than one-half pound weight, or takes or catches any trout except with hook and line, is guilty of a misdemeanor; provided, however, that steelhead trout (Salmo gairdneri) may be taken in tide water between the first day of April and the first ciay of February of the following year, with lawful nets, and a lawful net is a net that when placed in the water is unsecured and free to drift with the current, or tide, and the meshes of which are, when drawn closely together and meas- ured inside the knot not less than seven and one-half inches in length. Every person found guilty of any violation of any of the provisions of this section must be fined in a sum not less than twenty dollars or be imprisoned in the county jail in the county, not less than ten days, or be punished by both such fine and imprisonment, and all fines collected for any violation of any of the provisions of this section must be paid into the "fish commission fund." Nothing in this section prohibits the United States fish commission and the fish commission of this state from taking, at all times, such trout as they deem neces- sary for the purpose of propagation. [Stats. 1901, p. 55.] Taking, sale, or possession of salmon, when prohibited. 634. Every person who, between the tenth day of September and the sixteenth day of October of each year, takes or catches, buys, sells, offers or exposes for sale, or has in his possession any fresh salmon; every person who, between the fifteenth day of October and the fifteenth day of November of each year, takes or catches any salmon above tide water; every person who shall set or draw, or assist in setting or drawing, any net or reine for the purpose of taking or catching salmon, shad, striped basr,, or sturgeon, in any o^ the waters of the state, at any time between sunrise of each Saturday and sunset of the following Sunday; every person who.' for the purpose of catching salmon, 605 VIOLATION OF GAME LAWS. 635-636 shad, striped bass, or sturgeon, in any of the waters of the state, fish with or use any seine or net, drag-net, or paranzella, the meshes of which are, when drawn closely together and measured inside the knot, less than seven and one-half inches in length, is guilty of a misdemeanor, and is punishable by a fine not less than two hundred dollars, or by imprisonment in the county jail in which the conviction shall be had, not less than one hundred and fifty days, or by both such fine and impris- onment, and all the fines imposed and collected for any viola- tions of the provisions of this section shall be paid into the "fish commission fund." In the construction and meaning of this section, the limits of tide water in the Sacramento River shall be deemed to extend from its mouth to the city of Sacra- mento; in the San Joaquin River, from its mouth to the South- ern Pacific Railroad bridge near Lathrop, in San Joaquin County; in Eel River, in .Humboldt County, from its mouth to East Ferry, above the town of Fortuna; in the Klamath River, to a point on the river north of the residence of James McG-ar- vey; in Smith River, in Del Norte County, from its mouth to Higgins Ferry. Nothing in this section shall prohibit the United States fish commission and the fish commission of this state, from taking, at all times, such fish as they deem necessary for the purposes of artificial hatching. It shall be no defense in a prosecution for the violation of any of the provisions of this section that the fish were caught or taken outside or within this state. [Amendment approved February 25, 1897, p. 20.] 73 Cal. 258: 107 Cal. 281. Use of explosives and pollution of waters. 635. Every person who places or causes to be placed in any of the waters of this state, dynamite, gunpowder, or other explosive compound, for the purpose of killing or taking fish, or who takes, procures, kills or destroys any fish of any kind by means of explosives; or who places or allows to pass, or who places where it can pass, into any of the waters of this state, any lime, gas, tar, cocculus indicus, slag, sawdust, shav- ings, slabs, edgings, mill or factory refuse, or any substance deleterious to fish, is guilty of a misdemeanor, and is punish- able by a fine of not less than two hundred and fifty dollars, or by imprisonment in the county jail in the county, not less than one hundred and fifty days, or by both such fine and imprison- ment. [Stats. 1901, p. 55.] 107 Cal. 281. Setting net, trap, etc., for fish. 636. Every person who shall cast, extend, or set any seine or net of any kind, for the catching of any fish in any river, stream, or slough of this state, which shall extend more than one-third across the width of said river, stream, or slough, at the time and place of such fishing; every person who shall cast, extend, set, use, or continue, or who shall assist in casting, extending, using, or continuing "Chinese shrimp or bag net," or a net of similar character, for the catching of fish in the waters of this state; every person who shall cast, extend, set, use, or continue, or have in his possession, or who shall assist in cast- ing, extending, or using "Chinese sturgeon lines," or lines of a similar character; every person who shall set, use, or continue, or shall assist in setting, using, or continuing any pound, weir. 636a-637 PENAL CODE. 606 set-net, trap, or any other fixed or permanent contrivance for catching fish in the waters of this state and every net shall be considered a set-net that is secured in any way and not free to drift with the current or tide is guilty of a misdemeanor, and is punishable by a fine of not less than one hundred dol- lars, or by imprisonment in the county jail in the county in which the conviction shall be had, not less than fifty days, or by both such fine and imprisonment; and all the fines imposed and collected for any violation of any of the provisions of this section shall be paid into the "fish commissioners' fund." [Amendment approved March 31, 1897; Stats. 1897, p. 349. In effect immediately. | 57 Cal. 251: 73 Cal 258; 107 Cal. 281; 114 Gal. 371; 124 Cal. 151. \ Nets, seines, etc., prohibited. 636a. Any net, seine, drag-net, paranzella, or set-net used for taking or catching fish, which shall be used or maintained in any of the waters of this state in violation of any existing or hereafter enacted statutes or laws of this state for the pro- tection of fish, is hereby declared to be a public nuisance, and it is the duty of every peace officer to seize and keep the same and report such seizure to the board of fish commissioners of the state. Thereupon said board must commence proceedings in the Superior Court of the county or city and county in which the same shall be seized, by filing a petition in said court, ask- ing for a judgment forfeiting such net, seine, drag-net, paran- zella, or set-net so seized, and ordering the destruction thereof. Upon the filing of such petition, it is the duty of the clerk of said court to fix a time for the hearing thereof and to cause notices to be posted for the space of fourteen days in at least three public places in the town, city, or city and county, where the court is held, setting forth the substance of such petition and the time and place fixed for its hearing, a,nd if at the time fixed for such hearing, no person appears and claims such net, seine, drag-net, paranzella, or set-net, the court must proceed to hear and determine said proceeding according to law, and upon proof that the said net, seine, drag-net, paranzella, or set- net was used in violation of law, must order the same to be forfeited and destroyed. [Stats. 1901, p. 56.1 Fishways and ladders, penalties for not keeping. 637. Every owner of a dam or other obstruction in any run- ning water of this state, who, after being ordered and notified by the fish commissioners to construct a fish ladder on or to repair a fish ladder already constructed on such dam or other obstruction according to the plans of the fish commissioners, fails to construct or repair such fish ladder, within thirty days after such notice, is guilty of a misdemeanor, and upon convic- tion shall pay a fine of not less than fifty dollars nor more than two hundred, or bv imprisonment in the county jail in which such conviction is had of not less than twenty-five days nor more than one hundred days. 2. One-half of all moneys collected as fines for violations of the provisions of this act shall be paid to the informer, one- fourth to the district attorney of the county where the con- vicion is secured, and the remaining one-fourth shall be paid to the state board of fish commissioners of this state, to be by 607 MISCELLANEOUS OFFENSES. 637a-638 them used for the purposes and in conformity of "an act to authorize the state board of fish commissioners to import game birds into the state for propagation," approved March sixteenth, eighteen hundred and eighty-nine. f Amendment approved March 11, 1891; Stats. 1891, p. 93.] 62 Cal. 38. Meadow-larks, protection of. 637a. Every person who in the state of California shall at any time hunt, shoot, shoot at, pursue, take, kill, or destroy, buy, sell, give away, or have in his possession, except upon a written permit from the board of fish commissioners of the state of California for the purpose of propagation or for edu- cational or scientific purposes, any meadow-lark or any part of the skin, skins or plumage thereof, or who shall rob the nest or take or destroy the eggs of any meadow-lark, shall be guilty of a misdemeanor; provided, that nothing in this section shall prohibit the killing of a meadow-lark by the owner or tenant of any premises where such bird is found destroying berries, fruits, or crops, growing on such premises. [Stats. 1901, p. 573.] CHAPTER II. OF OTHER MISCELLANEOUS OFFENSES. Sec. . 638. Neglect or postponement of telegraphic messages. 639. Employee using information from messages. 640. Clandestinely learning the contents of a telegram. 641. Bribing telegraph operator. 642. Collecting tolls, etc , at San Francisco, without authority. 643. Violations of police regulations of San Francisco harbor. 644. Enticing seamen to desert. 645. Harboring deserting seamen. 646. Aiding apprentices to run away or harboring them. 647. Vagrants. 648. Issuing or circulating paper money. 640. Officers of fire department issuing false certificates. 650. Sending letters threatening to expose another. 651. Requiring apprentices to work more than eight hours. 652. National Guard failure to attend parade, obey orders, etc. 653. Members of National Guard, insubordination of. 653|. Appraisers 'accepting fees not allowed. 654. Abuse of school teachers. Neglect or postponement of telegraphic messages. 638. Every agent, operator, or employee of any telegraph office, who wilfully refuses or neglects to send any message received at such office for transmission, or wilfully postpones the same out of its order, or wilfully refuses or neglects to deliver any message received by telegraph, is guilty of a mis- demeanor. Nothing herein contained shall be construed to require any message to be received, transmitted, or delivered, unless the charges thereon have been paid or tendered, nor to require the sending, receiving, or delivery of any message coun- seling, aiding, abetting, or encouraging treason against the gov- ernment, of the United States or of this state, or other resist- ance to the lawful authority, or any message calculated to further any fraudulent plan or purpose, or to instigate or encour- age the perpetration of any unlawful act, or to facilitate the escape of anv criminal or person accused of crime. 639-644 PENAL CODE. 608 Employee using information from messages. 639. Every agent, operator, or employee of any telegraph office who in ?;ny way uses or appropriates any information derived by him from any private message passing through his hands, and addressed to any other person, or in any other man- ner acquired by him by reason of his trust as such agent, operator, or employee, or trades or speculates upon any such information so obtained, or in any manner turns, or attempts to turn, the same to his own account, profit, or advantage, is punishable by imprisonment in the state prison not exceeding five years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment. Clandestinely learning the contents of a telegram. 640. Every person who, by means of any machine, instru- ment, or contrivance, or in any other manner, wilfully and fraudulently reads, or attempts to read, any message, or to learn the contents thereof, whilst the same is being sent over any telegraph line, or wilfully and fraudulently, or clandestinely, learns or attempts to learn the contents or meaning of any message, while the same is in any telegraph office, or is being received thereat or sent therefrom, or who uses or attempts to use, or communicates to others, any information so obtained, is punishable as provided in section 639. Bribing telegraph operator. 641. Every person who, by the payment or promise of any bribe, inducement, or reward, procures or attempts to procure any telegraph agenl^, operator, or employee to disclose any private message or the contents, purport, substance, or mean- ing thereof, or offers to any such agent, operator, or employee any bribe, compensation, or reward for the disclosure of any private information received by him by reason of his trust aa such agent, operator, or employee, or uses or attempts to use any such information so obtained, is punishable as provided in section 639. Collecting tolls, etc., at San Francisco, without authority. 642. Every person who collects any toll, wharfage, or dock- age, or lands, ships, or removes any property upon or from any portion of the water front of San Francisco, or from or upon any of the wharves, piers, or landings under the control of the board of state harbor commissioners, 'without being by such board authorized so to do, is guilty of a misdemeanor. 71 Cal. 7. Violations of police regulations of San Francisco harbor. 643. Every person who violates any of the provisions of the laws of this state relating to sailor boarding-houses and ship- ping-offices in San Francisco, or who receives any gratuity or reward other than as therein provided, for the performance of any services under a license issued pursuant to the provisions of such laws, is guilty of a misdemeanor. 71 Cal. 7. Enticing seamen to desert. 644. Every person who entices seamen to desert from any vessel lying in the waters of this state, and on board of which they have shipped for a term or voyage unexpired at the time of such enticement, is guilty of a misdemeanor. 609 MISCELLANEOUS OFFENSES. 645-649 Harboring deserting seamen. 645. Every person who harbors or secretes any seaman, knowing him to be shipped, and with a view to persuade or enable him to desert, is guilty of a misdemeanor. Aiding apprentices to run away or harboring them. 646. Every person who wilfully and knowingly aids, assists, or encourages to run away, or who harbors or conceals any person bound or held to service or labor, is guilty of a misde- meanor. Vagrants. 647. Every person (except a California Indian) without visible means of living, who has the physical ability to work, and who does not seek employment, nor labor when employment is offered him; or. 2. Every healthy beggar who solicits alms as a business; or, 3. Every person who roams about from place to place with- out any lawful business; or, 4. Every person known to be a pickpocket, thief, burglar, or confidence operator, either by his own confession, or by his hav- ing been convicted of either of said offenses, and having no vis- ible or lawful means of support, when found loitering around any steamboat landing, railroad depot, banking institution, broker's office, place of public amusement, auction room, store, shop, or crowded thoroughfare, car, or omnibus, or at any public gathering or assembly; or, 5. Every idle or dissolute person, or associate of known thieves, who wanders about the streets at late or unusual hours of the night; or, 6. Every person who lodges in any barn, shed, shop, out- house, vessel, or place other than such as is kept for lodging purposes, without the permission of the owner or party entitled to the possession thereof; or, 7. Every lewd or dissolute person who lives in and about houses of ill-fame; or, 8. Every person who acts as a runner or capper for attor- neys in and about police courts or city prisons, in incorporated cities, or cities and counties; or, 9. Every common prostitute and common drunkard, is a vag- rant, and is punishable by imprisonment in the county jail not exceeding six months. [Amendment approved March 19, 1891; Stats. 1891, p. 130; in effect immediately.] 72 Gal. 385; 82 Cal. 614; 88 Cal. 102: 88 Cal. 113; 108 Cal. 57. Issuing or circulating paper money. 648. Every person who makes, issues, or puts in circulation any bill, check, ticket, certificate, promissory note, or the paper of any bank, to circulate as money, except as authorized by the laws of the United States, for the first offense, is guilty of a misdeameanor, and for each and every subsequent offense, is guilty of felony. Officers of fire department issuing false certificates. 649. Every officer of a fire department who wilfully issues or causes to be issued any certificate of exemption to a person not entitled thereto, is guilty of a misdemeanor. CRIMES --39 650-654 PENAL CODE. 610 Sending letters threatening to expose another. 650. Every person who knowingly and wilfully sends or delivers to another any letter or writing, whether subscribed or not, threatening to accuse him or another of a crime, or to -expose or publish any of his failings or infirmities, is guilty of a misdemeanor. Requiring apprentices to work more than eight hours. 651. Every person having a minor child under his control, either as a ward or an apprentice, who, except in vinicultural or horticultural pursuits, or in domestic or household occupa- tions, requires such child to labor more than eight hours in any one day, is guilty of a misdemeanor. National Guard failure to attend parade, obey orders, etc. 652. EVery commissioned officer of the national guard who wilfully fails to attend any parade or encampment, and every member of the national guard who neglects or refuses to obey the lawful command of his superior on any day of parade or encampment, or to perform such military duty as may be law- fully required of him, is punishable by a fine of not less than five nor more than one hundred dollars. Members of National Guard, insubordination of. 653. Every member of the national guard who, when duly notified, fails to appear at a parade, or who disobeys any law- ful order, or who uses disrespectful language towards his superior, or who commits any act of insubordination, is guilty of a misdemeanor. Appraisers accepting fees not allowed. 653*. Any appraiser, appointed by virtue of section one thousand four hundred and forty-four of the Civil Code of Pro- cedure, who shall accept any fees, reward, or compensation other than that provided for by law, from any executor, admin- istrator, trustee, legatee, next of kin or heir of any decedent, or fiom any other person, is guilty of a misdemeanor. [In effect March 1, 1899. Stats. 1899, p. 35.] Abuse of school teachers. 654. Every parent, guardian, or other person who upbraids, insults, or abuses any teacher of the public schools, in the presence or hearing of a pupil thereof, is guilty of a misde- meanor. [New section approved March 30, 1874; Amendments 1873-4, p. 435. In effect July 1, 1874.] 611 GENERAL PROVISIONS. 654-658 TITLE XVI. GENERAL PROVISIONS. Sec. 654. Acts made punishable by different provisions of this code. 655. "Acts punishable under foreign law. 656. Foreign conviction or acquittal. Cr>7. Contempt, how punishable. 6"iS. Mitigation of punishment In certain cases. P59. Aiding In misdemeanor. C60. Sending letters, when deemed complete. 661. Removal from office for neglect of official duty. 662. Omission to perform duty, when punishable. 663. Attempts to commit crimes, when punishable. 664. Attempts to commit crimes, how punishable. 665. Restrictions upon the* preceding sections. 666. Second offense, how punished after conviction of former offense. 667. Second offenses, how punished after conviction of attempt to commit a state prison offense. 668. Foreign conviction for former offense. 669. Second term of imprisonment, when to commence. 670. When term of imprisonment commences, etc. 671. Imprisonment for life. 672. Fine may be added to Imprisonment. 673. Civil rights of convict suspended. 674. Civil death. 675. Limitations on two preceding sections. 676. Person of convict protected. 677. Forfeitures. 678. Valuation in gold coin. 679. Coercion or compulsion of persons seeking employment. 679a. Limiting sale of convict-made goods. 680. Payment of wages to employees In a saloon. Acts made punishable by different provisions of this code. 654. An act or omission which is made punishable in differ- ent ways by different provisions of this code may he punished under either of such provisions, but in no case can it be pun- ished under more than one; an acquittal or conviction and sen- tence under either one bars a prosecution for the same -act or omission under any other. In the cases specified in sections 648, 667, and 668, the punishments therein prescribed must be substituted for those prescribed for a first offense, if the previous conviction is charged in the indictment and found by the jury. 49 Cal. 395. * , ' Acts punishable under foreign law. 655. An act or omission declared punishable by this code is not less so because it is also punishable under the laws of another state, government, or country, unless the contrary is expressly declared. Foreign conviction or acquittal. 656. Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of another state, government, or country, founded upon the act or omission in respect to which he is on trial, he has been acquitted or con- victed, it is a sufficient defense. Contempt, how punishable. 657. A criminal act is not the less punishable as a crime because it is also declared to be punishable as a contempt. Mitigation of punishment in certain cases. 658. When it appears, at the time of passing sentence upon a person convicted upon indictment, that such person has already 659-664 PENAL CODE. 612 paid a fine or suffered an imprisonment for the act Of which he stands convicted, under an order adjudging it a contempt, the court authorized to pass sentence may mitigate the punishment to be imposed, in its discretion. Aiding in misdemeanor. 659. Whenever an act is declared a misdemeanor, and no punishment for counseling or aiding in the commission of such act is expressly prescribed by law, every person who counsels or aids another in the commission of such act is guilty of a misdemeanor. 105 Cal. 644. Sending letters, when deemed complete. 660. In the various cases in which the sending of a letter is made criminal by this code, the offense is deemed complete from the time when such letter is deposited in any post-office or any other place, or delivered to any person, with intent that it shall be forwarded. Removal from office for neglect of official duty. 661. In addition to the penalty affixed by express terms, to every neglect or violation of official duty on the part of public officers, state, county, city, or township, where it is not so expressly provided, they may, in the discretion of the court, be removed from office. Omission to perform duty, when punishable. 662. No person is punishable for an omission to perform an act, where such act has been performed by another person acting in his behalf and competent by law to perform it. Attempts to commit crimes, when punishable. 663. Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended ox 1 attempted was perpetrated by such person in pursuance of such attempt, unless the court, in its discretion, discharges the jury and directs such person to be tried for such crime. Attempts to commit crimes, how punishable. 664. Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the pun- ishment of such attempts, as follows: 1. If the offense so attempted is punishable by imprisonment in the state prison for five years, or more, or by imprisonment in a county jail, the person guilty of such attempt is punish- able by imprisonment in the state prison, or in a county jail, as the case may be, for a term not exceeding one-half the long- est term of imprisonment prescribed upon a conviction of the offense so attempted. 2. If the offense so attempted is punishable by imprisonment in the state prison for any term less than five years, the person guilty of such attempt is punishable by imprisonment in the county jail for not more than one year. 3. If the offense so attempted is punishable by a fine, the offender convicted of such attempt is punishable by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense so attempted. 4. If the offense so attempted is punishable by imprisonment 613 GENERAL PROVISIONS. 665-667 and by a fine, the offender convicted of such attempt may be punished by both imprisonment and fine, not exceeding one-half the longest term of imprisonment and one-half the largest fine which may be imposed upon a conviction for the offense so attempted. 49 Cal. 393: 59 Cal. 423; 60 Cal. 72; 67 Cal. 104; 75 Cal. 571; 98 Cal. 129. Restrictions upon the preceding sections. 665. The last two sections do not protect a person who, in attempting unsuccessfully to commit a crime, accomplishes the commission of another and different crime, whether greater or less in guilt, from suffering the punishment prescribed by law for the crime committed. Second offense, how punished after conviction of former offense. 666. Every person who, having been convicted of any offense punishable by imprisonment in the state prison, commits any crime after such conviction, is punishable therefor, as fol- lows: 1. If the offense of which such person is subsequently con- victed is such that, upon a first conviction, an offender would be punishable by imprisonment in the state prison for any term exceeding five years, such person is punishable by imprison- ment in the state prison not less than ten years. 2. If the subsequent offense is such that, upon a first con- viction, the offender would be punishable by imprisonment in the state prison for five years, or any less term, then: the per- son convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding ten years. 3. If the subsequent conviction is for petit larceny, or any attempt to commit an offense which, if committed, would be punishable by imprisonment in the state prison not exceeding five years, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceed- ing five years. *7 Cal. 559; S4 Cal. 338; 65 Cal. 299; 87 Cal. i!86; 88 Cal. 120; 88 Cal. 174; 110 Cal. 43; 118 Cal. 389; 120 Cal. 272. Second offenses, how punished after conviction of attempt to commit a state prison offense. 667. Every person who, having been convicted of petit lar- ceny, or of an attempt to commit an offense which, if perpe- trated, would be punishable by imprisonment in the state prison, commits any crime after such conviction, is punishable as fol- lows: 1. If the subsequent offense is such that, upon a first con- viction, the offender would be punishable by imprisonment in the state prison for life, at the discretion of the court, such person is punishable by imprisonment in such prison during life. 2. If the subsequent offense is such that, upon a first con- viction, the offender would be punishable by imprisonment in the state prison for any term less than for life, such person is punishable by imprisonment in such prison for the longest term prescribed, upon a conviction for such first offense. 3. If the subsequent conviction is for petit larceny, or for an attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the state prison, then such per- 668-673 PENAL CODE. 614 son is punishable by imprisonment in such prison not exceed- ing five years. 47 Cal. 115; 49 Cal. 395; 61 Cal. 137; 61 Cal. 436; 73 Cal. 442; 110 Cal. 43; 109 Cal. 297. Foreign conviction for former offense. 668. Every person who has been convicted in "any other state, government, or country, of an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the state prison, is punishable for any sub- sequent crime committed within this state in the manner pre- scribed in the last two sections, and to the same extent as if such first conviction had taken place in a court of this state. 61 Cal. 436; 73 Cal. 443. Second term of imprisonment, when to commence. 669. When any person is convicted of two or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be. 61 Cal. 439; 76 Cal. 519; 86 Cal. 429; 132 Cal 348. J j When term of imprisonment commences, etc. 670. The term of imprisonment fixed by the judgment in a criminal action commences to run only, upon the actual delivery of the defendant at the place of imprisonment, and if there- after, during such term, the defendant by any legal means is temporarily released from such imprisonment and subsequently returned thereto, the time during which he was at large must not be computed as part of such term. t L 61 Cal. 436; 86 Cal. 429; 132 Cal. 347. Imprisonment for life. 671. Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the court authorized to pro- nounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than that prescribed. 61 Cal. 436; 65 Cal. 299; 98 Cal. 129; US Cal. 93; 123 Cal. 416; 124 Cal. 153; 131 Cal. 316. Fine may be added to imprisonment. 672. Upon a conviction for any crime punishable by impris- onment in any jail or prison, in relation to which no" fine is herein prescribed, the court may impose a fine on the offender net exceeding two hundred dollars, in addition to the imprison- ment prescribed. Civil rights of convict suspended. 673. A sentence of imprisonment in a state prison for any term less than for life suspends all the civil rights of the per- son so sentenced, and forfeits all public offices and all private trusts, authority, or power during such imprisonment. 124 Cal. S65. 615 GENERAL PROVISIONS. 674-679 Civil death. 674. A person sentenced to imprisonment in the state prison for life is thereafter deemed civilly dead. 124 Cal. 565; 125 Cal. 419. Limitations on two preceding sections. 675. The provisions of the last two preceding sections must not be construed to render the persons therein mentioned incom- petent as witnesses upon the trial of a criminal action or pro- ceeding, or incapable of making and acknowledging a sale or conveyance of property. [Amendment approved March 30, 1874; Amendments 1873-4, p. 435. In effect July 1, 1874.] 124 Cal. 565; 125 Cal. 419. Person of convict protected. 676. The person of a convict sentenced to imprisonment in the state prison is under the protection of the law, and any injury to his person, not authorized by law, is punishable in the same manner as if he was not convicted or sentenced. 125 Cal. 419. Forfeitures. 677. Nc conviction of any person for crime works any for- feiture of any property, except in cases in which a forfeiture is expressly imposed by law; and all forfeitures to the people of this state, in the nature of a deodand, or where any person shall fiee from justice, are abolished. 124 Cal. 565; 125 Cal. 420. Valuation in gold coin. 678. Whenever in this code the character or grade of an offense, or its punishment, is made to depend upon the Value of property, such value shall be estimated exclusively in United States gold coin. [New section approved March 30, 1874; Amendments 1873-4, p. 435. In effect July 1, 1874.] 131 Cal. 234. Coercion or compulsion of persons seeking employment. 679. Any person or corporation within this state, or agent or officer on behalf of such person or corporation, who shall here- after coerce or compel any person or persons to enter into an agreement, either written or verbal, not to join or become a member of any labor organization, as a condition of such person or persons securing employment or continuing in the employ- ment of any such person or corporation, shall be guilty of a misdemeanor. [New section approved March 14, 1893; Stats. 1893, p. 176.] Limiting sale of convict-made goods. 679a. 1. It shall be unlawful for any person to sell, expose for sale, or offer for sale within this state, any article or articles manufactured wholly or in part by convict or other prison labor, except articles the sale of. which is specifically sanctioned by law. 2. Every person selling, exposing for sale, or offering for sale any article manufactured in this state wholly or in part by convict or other prison labor, the sale of which is not spe- cifically sanctioned by law, shall be guilty of a misdemeanor. {Stats. 1901, p. 326.] 680 PENAL CODE. 616 Payment of wages to employees in a saloon. 680. Every person who shall pay any employee his wages, or any part thereof, while such employee is in any saloon, bar- room, or other place where intoxicating liquors are sold at retail, unless said employee is employed in such saloon, bar- room, or such other place where intoxicating liquors are sold, shall be deemed guilty of a misdemeanor. [Stats. 1901, p. 660.] II. OF CRIMINAL PROCEDURE. PRELIMINARY PROVISIONS. 8ec. 681. No person punishable but on legal conviction. 682. Public offenses, how prosecuted. 683. Criminal action defined. 684. Parties to a criminal action. 685. The party prosecuted known as defendant. 686. Rights of defendant in a criminal action. 687. Second prosecution for the same offense prohibited. 688. No person to be a witness against himself in a criminal action, or to be unnecessarily restrained. 689. No person to be convicted but upon verdict or judgment. No person punishable but on legal conviction. 681. No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof. 68 Cal. 180. Public offenses, how prosecuted. 682. Every public offense must be prosecuted by indictment or information, except: 1. Where proceedings are had for the removal of civil officers of the state; 2. Offenses arising in the militia when in actual service, and In the land and naval forces in time of war, or which the state may keep, with the consent of congress, in time of peace; 3. Offenses tried in justices' and police courts. [Amendment approved April 9, 1880; Amendments 1880, p. 10. In effect April 9, 1880.] 53 Cal. 413; 57 Cal. 561; 108 Cal. 663; 109 Cal. 450; 111 Cal. 240. Criminal action defined. 683. The proceeding by which a party charged with a pub- lic offense is accused and brought to trial and punishment, is known as a criminal action. Parties to a criminal action. 684. A criminal action is prosecuted in the name of the peo- ple of the state of California, as a party, against the person charged with the offense. 61 Cal. 58; 111 Cal. 241. The party prosecuted known as defendant. 685. The party prosecuted in a criminal action is designated in this code as the defendant. 686-689 PENALK30DE. 618 Rights of defendant in a criminal action. 686. In a criminal action the defendant is entitled: 1. To a speedy and public trial. 2. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel. 3. To produce witnesses on his behalf, and to be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness; or where the testi- mony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally in the like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an oppor- tunity to cross-examine the witness, the deposition of such wit- ness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found within the state. 50, Cal. 96; 54 Cal. 577; 55 Cal. 464; 57 Cal. 568; 61 Cal. 477; 64 Cal 86; 66 Cal. 102; 66 Cal. 676; 73 Cal. 207; 86 Cal. 427; 98 Cal. 131; 99 Cal 233; 100 Cal. 5; 105 Cal. 656; 106 Cal. 649; 108 Cal. 444; 111 Cal. 88; 116 Cal. 251; 121 Cal. 496; 126 Cal. 381; 132 Cal. 263. Second prosecution for the same offense prohibited. 687. No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted. 79 Cal. 430; 99 Cal. 231; 114 Cal. 57; 132 Cal. 501. No person to be a witness against himself in a criminal action, or to be unnecessarily restrained. 688. No person can be compelled, in a criminal action, to be a witness against himself; nor can a person charged with a public offense be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. 64 Cal. 340; 73 Cal. 443. No person to be convicted but upon verdict or judgment. 689. No person can be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon judgment against him upon a demurrer in the case mentioned in section one thousand and eleven, or upon a judgment of a court, a jury having been waived in a criminal case not amounting to felony. [Amend- ment approved February 25, 1880; Amendments 1880, p. 4. In effect immediately.] 64 Cal. 341; 68 Cal. ISO. 619 LAWFUL RESISTANCE INTERVENTIONS. 692-69 TITLE I. OF THE PREVENTION OF PUBLIC OFFENSES. Chapter I. Of lawful resistance, 692-4. II. Of the intervention of the officers of justice, 697-8. III. Security to keep the peace, 701-14. IV. Police in cities and towns, and their attendance at exposed places, 719-720. V. Suppression of riots, 723-33. CHAPTER I. OF LAWFUL RESISTANCE. Sec. C92. Lawful resistance, by, whom made. 693. By the party, in what cases and to what extent. 694. By other parties, in what cases. Lawful resistance, by whom made. 692. Lawful resistance to the commission of a public offense may be made: 1. By the party about to be injured; 2. By other parties. By the party, in what cases and to what extent. 693. Resistance sufficient to prevent the offense may be made by the party about to be injured: 1. To prevent an offense against his person, or his family, or some member thereof. 2. To prevent an illegal attempt by force to take or injure property in his lawful possession. By other parties, in what cases. 694. Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense. CHAPTER II. INTERVENTIONS OF THE OFFICERS OF JUSTICE. Sec. 697. Intervention of officers, in what cases. 698. Persons acting in their aid justified. Intervention of officers, in what cases. 697. Public offenses may be prevented by the intervention of the officers of justice: 1. By requiring security to keep the peace; 2. By forming a police in cities and towns, and by requiring their attendance in exposed places; 3. By suppressing riots. Persons acting in their aid justified. 698. When the officers of justice are authorized to act in the prevention of public offenses, other persons, who, by their com- mand, act in their aid, are justified in so doing. 701-706 PENAL CODE. 620 CHAPTER III. SECURITY TO KEEP THE PEACE. Bee. 701. Information of threatened offense. 702. Examination of complainant and witnesses. 703. Warrant of arrest. 704. Proceedings on charges being controverted. 705. Person complained of, when to be discharged. 706. Security to keep the peace, when required. . 707. Effect of giving or refusing to give security. 708. Person committed for not giving security. 709. Undertaking to be filed In .clerk's office. 710. Security reauired for assault committedi in court. 711. Undertaking, when broken. 712. Undertaking, when and how to be prosecuted. 713. Evidence of breach. 714. Security for the peace. Information of threatened offense. 701. An information may be laid before any of the magis- trates mentioned 'in section 808, that a person has threatened to commit an offense against the person or property of another. 123 Cal. 29. Examination of complainant and witnesses. 702. When the information is laid before such magistrate he must examine on oath the informer, and any witness he may produce, and must take their depositions in writing, and cause them to be subscribed by the parties making them. 123 Cal. 29. Warrant of arrest. 703. If it appears from the depositions that there is just rea- son to fear the commission of the offense threatened, by the person so informed against, the magistrate must issue a war- rant, directed generally to the sheriff of the county, or any constable, marshal, or policeman in the state, reciting the sub- stance of the information, and commanding the officer forthwith to arrest the person informed of and bring him before the magistrate. 123 Cal. 29. Proceedings on charges being controverted. 704. When the person informed against is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto. The evidence must be reduced to writing and subscribed by the witnesses. 123 Cal. 129. Person complained of, when to be discharged. 705. If it appears that there is no just reason to fear the commission of the offense alleged to have been threatened, the person complained of must be discharged. 123 Cal. 29. Security to keep the peace, when required. 706. If, however, there is just reason to fear the commission of the offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding five thou- sand dollars, as the magistrate may direct, with one or more sufficient sureties, to keep the peace towards the people of this state, and particularly towards the informer. The undertaking is valid and binding for six months, and may, upon the renewal of the information, be extended for a longer period, or a new undertaking may be required. 621 SECURITY TO KEEP PEACE POLICE. 707-719 Effect of giving or refusing to give security. 707. If the undertaking required by the last section is given, the party informed of must be discharged. If he does not give it, the magistrate must commit him to prison, specifying in the warrant the requirement to give security, the amount thereof, and the omission to give the same. 123 Cal. 29. Person committed for not giving security. 708. If the person complained of is committed for not giving the undertaking required, he may be discharged by any magis- trate, upon giving the same. 123 Cal. 29. Undertaking to be filed in clerk's offjce. 709. The undertaking must be filed by the magistrate in the office of the clerk of the county. 123 Cal. 29. Security required for assault committed in court. 710. A person who, in the presence of a court or magistrate, assaults or threatens to assault another, or to commit an offense against his person or property, or who contends with another with angry words, may be ordered by the court or magistrate to give security, as in this chapter provided, and if he refuse to do so, may be committed as provided in section 707. 123 Cal. 29. Undertaking, when broken. 711. Upon the conviction of the person informed against of a breach of the peace, the undertaking is broken. 123 Cal. 29. Undertaking, when and how to be prosecuted. 712. Upon the district attorney's producing evidence of such conviction to the Superior Court of the county, the court must order the undertaking to be prosecuted, and the district attor- nej r must thereupon commence an action upon it in the name of the people of this state. [Amendment approved April 12, 1880; Amendments 1880, p. 32. In effect April 12, 1880.] 123 Cal. 29. Evidence of breach. 713. In the action the offense stated in the record of con- viction must be alleged as a breach of the undertaking, and such record is conclusive evidence of the breach. 123 Cal. 29. Security for the peace. 714. Security to keep the peace, or be of good behavior, can- not be required except as prescribed in this chapter. 123 Cal. 29. CHAPTER IV. POLICE IN CITIES AND TOWNS, AND THEIR ATTENDANCE AT EXPOSED PLACES. Sec. 719. Organization and regulation of the police. 720. Force to preserve the peace at public meetings. Organization and regulation of the police. 719. The organization and regulation of the police, in the cities and towns of this state, is governed by special laws. 720-727 PENAL CODE. 622 Force to preserve the peace at public meetings. 720. The mayor or other officer having the direction of the police of a city or town must order a force, sufficient to pre- serve the peace, to attend any public meeting, when he is satis- fied that a breach of the peace is reasonably apprehended. CHAPTER V. SUPPRESSION OF RIOTS. Sec. 723. Power of sheriff in overcoming resistance. 724. Officer to certify to court the names of resisters, etc. 725. Governor to order out military to aid in executing process. 726. Magistrates and officers to command rioters to disperse. 727. To arrest rioters if they do not disperse. 728. Officers who may order out the military. 729. Commanding 1 officer and troops to obey the order. 730. Armed force to obey orders of whom. 731. Conduct of the troops. 732. Governor may declare a county in a state of insurrection. 733. May revoke the proclamation. 734. Right to parade with arms. Power of sheriff in overcoming resistance. 723. When a sheriff or other public officer authorized' to" exe- cute process finds, or has reason to apprehend that resistance will be made to the execution of the process, he may command as many male inhabitants of his county as he may think proper to assist him in overcoming the resistance, and, if necessary, in seizing, arresting, and confining the persons resisting, their aiders and abettors. Officers to certify to court the names of resisters, etc. 724. The officer must certify to the court from which the process issued the names of the persons resisting, and their aiders and abettors, to the end that they may be proceeded against for their contempt of court. Governor to order out military to aid in executing process. 725. If it appears to the governor that the civil power of any county is not sufficient to enable the sheriff to execute process delivered to fiim, he must, upon the application of the sheriff of the county, order such portion as shall be sufficient, or the whole, if necessary, of the organized national guard or enrolled militia of the state, to proceed to the assistance of the sheriff. Magistrates and officers to command rioters to disperse. 726. Where any number of persons, whether armed or not, are unlawfully or riotously assembled, the sheriff of the county and his deputies, the officials governing the town or city, or the justices of the peace and constables thereof, or any of them, must go among the persons assembled, or as near to them as possible, and command them, in the name of the people of the state, immediately to disperse. To arrest rioters if they do not disperse. 727. If the persons assembled do not immediately disperse, such magistrates and officers must arrest them, and to that end may command the aid of all persons present 01 within the county. 623 SUPPRESSION OF RIOTS. 728-732 Officers who may order out the military. .728. When there is an unlawful or riotous assembly with the intent to commit a felony, or to offer violence to person or property, or to resist by force the laws of the state or of the United States, and the fact is made known to the governor, by any justice of the Supreme Court, or the judge of the Superior Court, or sheriff of the county, or the mayor or chief of police of a city, or the president of the board of supervisors of the cities and counties of Sacramento and San Francisco, the gov- ernor may issue an order directed to the commanding officer of a division or brigade of the organized National Guard, or en- rolled militia of the state, to order his command, or such part thereof as may be necessary, into active service, and to appear at a time and place therein specified to aid the civil authorities in suppressing violence and enforcing the laws. [Amendment approved April 12, 1880; Amendments 1880, p. 32. In effect April 12, 1880.] Commanding officer and troops to obey the order. 729. The organized National Guard or enrolled militia, or such portion thereof as shall be called into active service, as provided in section seven hundred and twenty-eight, must ap- pear at the time and place appointed, fully armed and equipped, and with not less than forty rounds of ball cartridge to each man, if infantry or cavalry, and with not less than twenty rounds of grape canister, or round shot, if artillery. Armed force to obey orders of whom. 730. When an armed force is called out for the purpose of suppressing an unlawful or riotous 'assembly, or arresting the offenders, and is placed under the temporary direction of any civil officer, as provided in section seven hundred and thirty-one, it must obey the orders in relation thereto of such civil officer. Conduct of the troops. 731. Whenever any portion of the National Guard or enrolled militia shall have been called into active service to suppress an insurrection or rebellion, to disperse a mob, or to enforce the "execution of the laws of the state or of the United States, the commanding officer shall use his own discretion with respect to the propriety of attacking or firing upon any mob or unlawful assembly; and his honest and reasonable judgment in the ex- ercise of his duty shall be full protection, civilly and criminally, for any act or acts done while on duty. No officer who has been called out to sustain the civil authorities shall, under any pre- tense, or in compliance with any order, fire blank cartridges upon any mob or unlawful assemblage under penalty of being cashiered by sentence of a court-martial. [Amendment approved March 26, 1895; Stats. 1895, 193. In effect March 26, 1895.] Governor may declare a county in a state of insurrection. 732. When the governor is satisfied that the execution of civil or criminal process has been forcibly resisted in any county by bodies of men, or that combinations to resist the execution of process by force exist in any county, and that the power of the county has been exerted and has not been sufficient to en- able the officers having the process to execute it, he may, on the application of the officer, or of the district attorney, or judge of a Superior Court of the county, by proclamation, published in such papers as he may direct, declare the county to be in a 733-734 PENAL CODE. 624 state of insurrection, and may order into the service of the state such number and description of the organized National Guard, or volunteer uniformed companies, or other militia of the state, as he deems necessary, to serve for such term and under the command of such officer as he may direct. [Amend- ment approved April 12, 1880; Amendments 1880, 32. In effect April 12, 1880.] May revoke the proclamation. 733. The governor may, when he thinks proper, revoke the proclamation authorized by the last section, or declare that it shall cease at the time and in the manner directed by him. Right to parade with arms. 734. It shall not be lawful for any body of men whatever, other than the regular organized National Guard of this state, and the troops of the United States, to associate themselves together as a military company or organization, to drill or parade with arms in any city or town of this state, without the license of the governor thereof, which license may at any time bnot found, depositions, etc , must be returned to court, etc. 942. Effect of dismissal. 043. Names of witnesses inserted at foot of indictment. 944 Indictment, how presented and filed. 045. Proceedings when defendant Is not in custody. Indictment must be found by twelve jurors, indorsed, etc. 940. An indictment cannot be found without the concurrence of at least twelve grand jurors. When so found it must be indorsed, "A true bill," and the indorsement must be signed by the foreman of the grand jury. 54 Cal. 38. If not found, depositions, etc., must be returned to court, etc. 941. If twelve grand jurors do not concur in finding an indict- ment against a defendant who has been held to answer, the depositions and statement, if any, transmitted to them must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed. 54 Cal. 38; 54 Cal. 413. Effect of dismissal. 942. The dismissal of the charge does not prevent its resub- mission to a grand jury as often as the court may direct. But without such direction it cannot be resubmitted. 54 Cal. 41; 65 Cal. 218. Names of witnesses inserted at foot of indictment. 943. When an indictment is found, the names of the wit- nesses examined before the grand jury, or whose depositions may have been read before them, must be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the court. 54 Cal. 103; 56 Cal. 28; 71 Cal. 213; 104 Cal. 377; 130 Cal. 75. Indictment, how presented and filed. 944. An indictment, when found by the grand jury, must be presented by their foreman, in their presence, to the court, and must he filed with the clerk. 54 Cal 38. Proceedings when defendant is not in custody. 945. When an indictment is found against a defendant not in custody, the same proceedings must be had as are prescribed in sections 979 to 984, inclusive, against a defendant who fails to appear for arraignment. il. 298. 655 RULES OF PLEADING AND INDICTMENT. 948-951 CHAPTER II. RULES OF PLEADING AND FORM OF INDICTMENT. Sec. 948. Form of and rules of pleading. 949. First pleading by the people Is indictment, or information. 950. Indictment or information, what to contain. 951. Form of. 952. It must be direct and certain. 953. When defendant is indicted by fictitious name, etc. 954. Must charge but one offense and in one form, except where it may be committed by different means. 955. Statement as to time when offense was committed. 956. Statement as to person injured or intended to be. 957. Construction of words used. 958. Words used in a statute need not be strictly pursued. 959. Indictment or information, when sufficient. 960. Not insufficient for defect of form not tending to prejudice defendant. 961. Presumptions of law, etc., need not be stated. 962. Judgments, etc., how pleaded. 963. Private statutes, how pleaded. 964. Pleading for libel. 965. Pleading for forgery, where instrument has been destroyed or withheld by defendant. 966. Pleading for perjury or subornation of perjury. 967. Pleading for larceny or embezzlement. 968. Pleading for selling, exhibiting, etc. lewd and obscene books. 970. Indictment against several, one or more may be acquitted. 971. Distinction between accessory before the fact and principal abrogated. 972. Accessory may be indicted and tried, though principal has not been. Form of and rules of pleading. 948. All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this code. 59 Cal. 377; 90 Cal. 571. First pleading by the people is indictment, or information. 949. The first pleading on the part of the people is the indict- ment or information. [Amendment approved April 9, 1880; amendments 1880, p. 12. In effect April 9, 1880.] 57 Cal. 561; 85 Cal. 88. Indictment, or Information, what to contain. 950. The indictment or information must contain: 1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties; 2. A statement of the acts constituting the offense, in ordi- nary and concise language, and in such manner as to enable a person of common understanding to know what is intended. [Amendment approved April 9, 1880; amendments 1880, p. 12. In effect April 9, 1880.] 49 Cal. 388; 53 Cal. 616; 58 Cal. 107; 58 Cal. 225; 59 Cal. 374; 59 Cal. 398; 64 Cal 154; 64 Cal. 261; 66 Cal. 229; 66 Cal. 673; 67 Cal. 104; 70 Cal. 99; 70 Cal. 117; 70 Cal. 524; 72 Cal. S59; 77 Cal. 149; 78 Cal. 87; 81 Cal. 159; 82 Cal. 608; S4 Cal. 471; 85 Cal. 645; 86 Cal. 239; 91 Cal. 466; 92 Cal. 651; 94 Cal. 597; 100 Cal. 439; 102 Cal. 241; 103 Cal. 676; 106 Cal. 407: 110 Cal. 371; 112 Cal. 19; 116 Cal. 391; 118 Cal 76; 119 Cal. 457; 127 Cal. 100; 130 Cal. 14; 131 Cal. 249. Form of. 951. It may be substantially in the following form: The peo- ple of the state of California against A B , in the Superior 952-955 PENAL CODE. 656 Court of the county of - , the day of , A. D. eighteen . A B is accused by the grand jury of the county of , by this indictment, [or by the district attorney by this information 1 of the crime of [giving its legal appellation, such as murder, arson, or the like, or designating it as felony or misdemeanor], committed as follows: The said A B , on the day of A. D. eighteen , at the county of [here set forth the act or omission charged as an offense], con- trary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of California. [Amendment approved April 9, 1880; amendments 1880, p. 12. In effect April 9, 1880.] 49 Cal. 388; 58 Cal. 107; 68 Cal. 225; 59 Cal. 374; 64 Cal. 154; 64 Cal. 261; 64 Cal. 342; 65 Cal. 566; 66 Cal. 229; 67 Cal. 104; 70 Cal. 99; 70 Cal. 117; 70 Cal. 524; 77 Cal. 149; 78 Cal. 85; 81 Cal. 159; 82 Cal. 608; 84 Cal. 471; 85 Cal. 645; 91 Cal. 466: 94 Cal. 697; 100 Cal. 439; 102 Cal. 241; 105 Cal. 609; 106 Cal. 407; 112 Cal. 19; 118 Cal. 76; 119 Cal. 457; 127 Cal. 100; ISO Cal. 14. It must be direct and certain. 952. It must be direct and certain, as it regards: 1. The party charged; 2. The offense charged; 3. The particular circumstances of the offense charged, whoa they are necessary to constitute a complete offense. 47 Cal 108; 49 Cal. 388; 49 Cal. 395; 53 Cal. 616; 58 Cal 107; 58 Cal. 225; 59 Cal. 374; 64 Cal. 154; 261; 64 Cal. 342; 66 Cal. 229; 70 Cal. 99; 117; 70 Cal. 524; 78 Cal. 85; 81 Cal. 159; 84 Cal. 471; 85 Cal 645; 91 Cal. 466; 597; 100- Cal. 439; 102 Cal. 241; 106 Cal. 64 Cal 70 Cal 82 Cal 94 Cal 407; 110 Cal. 371; 112 Cal. 19; 118 Cal. 76; 119 Cal. 168; 119 Cal. 457; 126 Cal. 367; 127 Cal. 100; 130 Cal. 14; 131 Cal 249. When defendant is indicted by fictitious name, etc. 953. When a defendant is charged by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, referring to the fact of his being charged by the name men- tioned in the indictment or information. [Amendment approved April 9, 1880; amendments 1880, p. 13. In effect April 9, 1880.] 65 Cal. 615; 78 Cal. 85; 109 Cal. 279. Must charge but one offense and in one form, except where it may be committed by different means. 954. The indictment or information must charge but one offense, but the same offense may be set fortn in different forms under different counts, and, when the offense may be com- mitted by the use of different means, the means may be alleged in the alternative in the same count. [Amendment approved April 9, 1880; amendments 1880, p. 13. In effect April 9, 1880.] 47 Cal. 108; 48 Cal. 189; 49 Cal. 453; 58 Cal. 103; 66 Cal. 675; 94 Cal. 597; 106 Cal. 640; 111 Cal. 254; 113 Cal. 179; 130 Cal. 4. Statement as to time when offense was committed. 955. The precise time at which the offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material 657 RULES OF PLEADING AND INDICTMENT. 956-95$' ingredient in the offense. [Amendment approved April 9, 1880; amendments 1880, p. 13. In effect April 9, 1880.] 68 Cal. 437; 73 Cal. 221; 104 Cal. 612. Statement as to person injured or intended to be. 956. When an offense involves the commission of, or an attempt to commit, a private injury, and is described with suffi- cient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material. 59 Cal. 361; 67 Cal. 66; 69 Cal. 237; 70 Cal. 632; 71 Cal. 21; 72 Cal. 403; 74 Cal. 191; 79 Cal. 180; 80 Cal. 207; 89 Cal. 496; 112 Cal. 335; 120 Cal. 662. Construction of words used. 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 law, which are con- strued according to their legal meaning. [Amendment approved April 9, 1880; amendments 1880, p. 13. In effect April 9, 1880.] 90 Cal. 571; 120 Cal. 663. Words used in a statute need not be strictly pursued. 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. [Amend- ment approved April 9, 1880; amendments 1880, p. 13. In effect April 9, 1880.] 5& Cal. 227; 59 Cal. 376; 63 Cal. 28; 90 Cal 571; 93 Cal. 631; 106 Cal. 407. Indictment or information, when sufficient. 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 pro- nounce judgment upon a conviction, according to the right of CRIMES--42 960-965 PENAL CODE. 658 the case. [Amendment approved April 9, 1880; Amendments 1880, p. 13. In effect April 9, 1880.1 49 Cal. 391; 57 Cal. 565; 58 Cal. 228; 59 Cat 376; 73 Cal. 359; 75 Cal. 630- 77 Cal 149- 77 2. Special verdict. 1153. Special verdict, how rendered. 1154. Form of special verdict. 1155. Judgment on special verdict. 1156. When special verdict defective, new trial to be ordered. 1157. Jury to find degree of crime. 1158. Jury may find upon charge of previous conviction. 1159. Jury may convict of losser offense, or of attempt. 1160. Verdict as to some defendants, new trial as to others. 1161. Court may direct a reconsideration of the verdict. 1162. When judgment may be given on informal verdict. 1163. Polling the jury. 1164. Recording the verdict. 1165. Defendant, when to be discharged. 1166. Proceedings upon conviction or special verdict. 1167. Proceedings on acquittal on ground of insanity. Return of jury. 1147. When the jury have agreed upon their verdict they must be conducted into court by the officer having them In charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried at the same, or another term. 57 Cal. 100; 62 Cal. 619. Appearance of defendant. 1148. If charged with a felony, the defendant must, before the verdict is received, appear in person. If for a misdemeanor, the verdict may be rendered in his absence. [Amendment ap- proved April 9, 1880; amendments 1880, p. 24. In effect April 9th, 1880.] 49 Cal. 42; 57 Cal. 352; 59 Cal. 358; 70 Cal. 472; 118 Cal. 449. Manner of taking verdict. 1149. When the jury appear, they must be asked by the court, or clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. 62 Cal. 519; 94 Cal. 119. Verdict may be general or special. 1150. The jury may render a general verdict, or, when they are in doubt as to the legal effect of the facts proved, they may, except upon a trial for libel, find a special verdict. [Amend- ment approved April 9, 1880; amendments 1880, 24. In effect April 9th, 1880.] General verdict. 1151. A general verdict upon a plea of not guilty is either "guilty" or "not guilty," which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either "for the people" or "for the defendant." When the defendant is acquitted on the ground that he was insane at the time of the 689 THE VERDICT. 1152-1158' commission of the act charged, the verdict must be "not guilty by reason of insanity." When the defendant is acquitted on the ground of variance between the indictment and the proof, the verdict must be "not guilty by reason of variance between indictment and proof." [Amendment approved March 30th, 1874; amendments 1873-4, 446. In effect July 1, 1874.] 51 Cal. 279; 68 Cal. 181; 73 Cal. 346; 84 Cal. 473; 87 Cal. 283. Special verdict. 1152. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact as established by the evidence, and not the evidence to prove them, and these conclusions of fact must be so presented as that nothing remains to the court but to draw conclusions of law upon them. Special verdict, how rendered. 1153. The special verdict must be reduced to writing by the jury, or in their presence entered upon the minutes of the court, read to the jury and agreed to by them, before they are dis- charged. Form of special verdict. 1154. The special verdict need not be in any particular form, but is sufficient if it present intelligibly the facts found by the jury. Judgment on special verdict. 1155. The court must give judgment upon the special verdict as follows: 1. If the plea is not guilty, and the facts prove the defendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted under that indictment, judgment must be given accordingly. But if otherwise, judgment of acquittal must be given. 2. If the plea is a former conviction or acquittal of the same offense, the court must give judgment of acquittal or con- viction, as the facts prove or fail to prove the former conviction or acquittal. 93 Cal. 568. When special verdict defective, new trial to be ordered. 1156. If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact, from the evidence, as established to their satisfaction, the court must order a new trial. Jury to find degree of crime. 1157. Whenever a crime is distinguished into degrees, the Jury, if they convict the defendant, must find the degree of the crime of which he is guilty. 49 Cal. 179; 52 Cal. 454; 53 Cal. 627; 59 Cal. 384; 60 Cal. 110; 65 Cal 538; 67 Cal. 331; 68 Cal. 180: 73 Cal. 5S1; 81 Cal. 618; 94 Cal. 386. Jury may find upon charge of previous conviction. 1158. Whenever the fact of a previous conviction of another offense is charged in an indictment or information, the jury, if CRIMES--44 1159-1163 PENAL CODE. 690 they find a verdict of guilty of the offense with which he la charged, must also, unless the answer of the defendant admits 'the charge, find whether or not he has suffered such previous conviction. The verdict of the jury upon a charge of pre- vious conviction may be: "We find the charge of previous con- viction true," or, "We find the charge of previous conviction not true," as they find that the defendant has or has not suffered euch conviction. [Amendment approved April 9, 1880; amend- ments 1880, 24. In effect April 9, 1880.] 49 Cal. 395; 57 Cal. 560; 57 Cal. 572; 64 Gal. 155; 64 Cal. 340; 64 Cal. 403; 66 Cal. 297; 73 CaJ. 445; 73 Cal. 549; 109 Cal. 297; 110 Cal. 42; 118 Cal. 389. Jury may convict of lesser offense, or of attempt. 1159. The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. [Amendment approved April 9, 1880; amendments 1880, 24. In effect April 9th, 1880.1 53 Cal. 59; 56 Cal. 80; 59 Cal. 364; 65 Cal 475; 76 Cal. 58; 91 Cal. 272; 93 Cal. 669; 99 Cal. 229; 100 Cal. 153; 105 Cal. 672; 115 Cal. 305. Verdict as to some defendants, new trial as to others. 1160. On an indictment or information against several, If the Jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the others may be tried by another jury. [Amendment approved April 9, 1880; amendments 1880, 25. In effect April 9, 1880.] 87 Cal. 413. Court may direct a reconsideration of th verdict. 1161. When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be -entered; but when there is a verdict of acquittal, the court cannot require the jury to reconsider it. If the jury render a verdict which is neither general nor special, the court may direct them to reconsider it, and it cannot be recorded until it is rendered in some form from which it can be clearly understood that the intent of the Jury is either to render a general verdict or to find the facts specially and to leave the judgment to the court. 48 Cal. 559; 68 Cal. 180; 118 Cal. 448. When judgment may be given on informal verdict. 1162. If the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant upon the issue, or judgment is given against him on a special verdict. 68 Cal. ISO. Polling the jury. 1163. When a verdict is rendered, and before it Is recorded, the jury may be polled at the request of either party, in which 691 THE VERDICT. 1164-1167 case they must be severally asked whether it is their verdict, and i: any one answer in the negative, the jury must be sent out for further deliberation. 57 Cal. 100; 62 Cal. 620. Recording the verdict. 1164. When the verdict given is such as the court may receive, the clerk must immediately record it in full upon the minutes, read it to the jury, and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes and the jury again sent out; but if no dis- agreement is expressed, the verdict is complete, and the jury must be discharged from the case. 57 Cal. ICO. Defendant, when to be discharged. 1165. If judgment of acquittal is given on a general verdict, and the defendant is not detained for any other legal cause, he must be discharged as soon as the judgment is given, except where the acquittal is because of a variance between the pleading and proof, which may be obviated by a new indictment or information, the court may order his detention, to the end that a new indictment or information may be preferred, in the same manner and with like effect as provided in section one thousand one hundred and seventeen. [Amendment approved April 9, 1880; amendments 1880, p. 25. In effect April 9, 1880.] 61 Cal. 140; 64 Cal. 263; 70 Cal. 65; 79 Cal. 179; 1 Cal. 643; 118 Cal. 27. Proceedings upon conviction or special verdict. 1166. If a general verdict is rendered against the defendant, or a special verdict is given, he must be remanded, if in custody, or if, on bail he may be committed to the proper officer of the county to await the judgment of the court upon the verdict. When committed his bail is exonerated, or if money is deposited instead of bail it must be refunded to the defendant. 68 Cal. 182. Proceedings on acquittal on ground of insanity. 1167. If the jury render a verdict of acquittal on the ground of insanity, the court may order a jury to be summoned from the jury list of the county, to inquire whether the defendant continues to be insane. The court may cause the same wit- nesses to be summoned who testified on the trial, and other wit- nesses, and direct the district attorney to conduct the proceed- ings, and counsel may appear for the defendant. The court may direct the sheriff to take the defendant and retain him in custody until the question of continuing insanity is determined. If the jury find the defendant insane, he shall be committed by the sheriff to the state insane asylum. If the jury find the defendant sane, he shall be discharged. [Amendment approved March 30, 1874; amendments 1873-4, p. 446. In effect July 1, 1874.] 1170-1172 PENAL CODE. 692 CHAPTER V. BILLS OF EXCEPTION. Sec. 1170. In what oases. 1171 When to be settled ;ind signed. 1171*. Kxrepf.oiiK to decision of court by either party. 117.'?. Kxceptions to decision of the court by the defendant. 1174. Exception*, how settled. 117.'). What bill of exceptions- is to contain. 1176. Written charges need not be excepted to. In what cases. 1170. On the trial of an indictment or information, exceptions may be taken by the defendant to a decision of the court: 1. In disallowing a challenge to the panel of the jury, or to an individual juror for implied or actual bias; 2. In admitting or rejecting testimony on the trial of a chal- lenge to a juror for actual bias; 3. In admitting or rejecting testimony, or in deciding any question of law not a matter of discretion, or in charging or instructing the jury upon the law on the trial of the issue. [In effect February 28, 1901; stats, p. 81.] 51 Cal. 470; 61 Cal. 496; 53 Cal. 184; 53 Cal. 603; 56 Cal. 535; 59 Cal. 355; 61 Cal. 549; 70 Cal. 11; 83 Cal. 381; 87 Cal. 120; 96 Cal. 126; 115 Cal 167; 123 Cal. 488; 124 Cal. 553; 132 Cal. 142. When to be settled and signed. 1171. When a party desires to have the exceptions taken at the trial settled in a bill of exceptions, the draft of a bill must be prepared by him and presented, upon notice of at least two days to the district attorney, to the judge for settlement within ten days after judgment has been rendered against him, unless further time is granted by the judge, or by a justice of the Supreme Court, or within that period the draft must be delivered to the clerk of the court for the judge. When received by the clerk, he must deliver it to the judge, or transmit it to him at the earliest period practicable. When settled, the bill must be signed by the judge and filed with the clerk of the court. [Amendment approved February 18, 1881; stats. 1881, P. 6.1 51 Cal. 470; 53 Cal. 184; 33 Cal. 423; 55 Cal. 73; 76 Cal. 514; 77 Cal. 356; 78 Cal. 406; 86 Cal. 157; 94 Cal. 506; 106 Cal. 645; 115 Cal. 167; 122 Cal. 210. Exceptions to decision of court by either party. 1172. Exceptions may be taken by either party to the decision of a court or judge upon a matter of law: 1. In granting or refusing a motion to set aside an indict- ment or information; 2. In allowing or disallowing a demurrer to an indictment or information; 3. In granting or refusing a motion in arrest of judgment; 4. In granting or refusing a motion for a new trial; 5. In making, or refusing to make, an order after judgment affecting any substantial right of the parties. [Amendment approved March 10, 1885; stats. 1885, p. 58.1 .":, Cal. 74; 56 Cal 535"; 65 Cal. 175; 107 Cal. 47s: 115 Cal. 161; 121 Cal. 495; 132 Cal. 142. 693 BILLS OF EXCEPTION. 1173-1176 Exceptions to decision of the court by the defendant. 1173. Exceptions may be taken by the defenuant to a decision of the court upon a matter of law: 1. In refusing to grant a motion for a change of the place of trial; 2. In refusing to postpone the trial on motion of the defend- ant. 53 Cal. 74; 56 Cal. 535; 65 Cal. 175; 115 Cal. 167; 132 Cal. 142. Exceptions, how settled. 1174. Where a party desires to have the exceptions mentioned in the last two sections settled in a bill of exceptions, the draft of a bill must be prepared by him and presented, upon notice of at least two days to the adverse party, to the judge, for settle- ment, within ten days after the order or ruling complained of is made, unless further time is granted by the judge, or by a justice of the Supreme Court, or within that period the draft must be delivered to the clerk of the court for the judge. When received by the clerk, he must deliver it to the judge, or transmit it to him at the earliest period practicable. When settled, the bill must be signed by the judge, and filed with the clerk of the court. If the judge in any case refuses to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the Supreme Court to prove the same. The application may be made in the mode and manner and under such regulations as that court may prescribe; and the bill, when proven, must be certified by the chief justice asi correct, and filed with the clerk of the court in which the action was tried, and when so filed it has the same force and effect as if settled by the judge who tried the cause. If the judge who presided at the trial ceases to hold office before me bill is tendered or settled, he may, nevertheless, settle such bill, or the party may, as provided in this section, apply to the Supreme Court to prove the same. [Amendment approved March 30, 1874; amendments 1873-4, p. 448. In effect July 1, 1874.] 51 Cal. 321; 53 Cal. 1S4; 55 Cal. 74; 56 Cal. 119; 72 Cal. 2; 74 Cal. 190; 76 Cal. 284; 77 Cal. 356; 78 Cal. 346; 108 Cal. 32; 119 Cal. 57; 121 Cal. 281; 121 Cal. 495. What bill of exceptions is to contain. 1175. A bill of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken; and the judge must, upon the settlement of the bill, whether agreed to by the parties or not, strike out all other matters contained therein. -51 Cal. 321; 52 Cal. 212; 76 Cal. 285; 76 Cal. 351;O1^ I ' . 80 Cal. 157; SO Cal. 488; 121 Cal. 281. Written charges need not be excepted to. 1176. When written charges have been presented, given, or refused, or when the charges have been taken down by the reporter, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges or the report, with the indorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal, in like manner as if presented in a bill of exceptions, 77 Cal. ISO; 84 Cal. 581; 106 Cal. 36; 111 Cal. 259; 115 Cal. 161; 118 Cal. 329; 127 Cal. 547. 1179-1182 PENAL CODE. 694 CHAPTER VI. NEW TRIALS. Sec. 1179. New trial defined. 1180. Its effect. 1181. In what cases It may be granted. 1182. Application for, when made. New trial defined. 1179. A new trial is a re-examination of the issue In the same court, before another jury, after a verdict has been given. 72 Cal. 15. Its effect. 1180. The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment. [Amendment approved March 30, 1874; amendments 1873-4, p. 449. In effect July 1, 1874.] 99 Cal. 232. In what cases it may be granted. 1181. When a verdict has been rendered against the defend- ant, the court may, upon his application, grant a new trial, in the following cases only: 1. When the trial has been had in his absence, if the indict- ment is for a felony; 2. When the jury has received any evidence out of court other than that resulting from a view of the premises; 3. When the jury has separated without leave of the court, after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented; 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors; 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial; 6. When the verdict is contrary to law or evidence; 7. When new evidence is discovered material to the defend- ant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly-discovered evidence, the defendant must produce at the hearing, in support thereof, the affiavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable. 53 Cal. 184; 56 Cal. 118; 70 Cal 472; 71 Cal. 398; 74 Cal. 483; 76 Cal. 575; 78 Cal. 334; 88 Cal. 490; 91 Cal. 199; 102 Cal. 332; 115 Cal. 304; 119 Cal. 2; 122 Cal. 183; 125 Cal. 507; 123 Cal. 563. Application for, when made. 1182. The application for a new trial must be made before judgment. 80 Cal. 488; 98 Cal. 365. 695 ARREST OF JUDGMENT. 1185-1188 CHAPTER VII ARREST OF JUDGMENT. Sec. 1185. Motion In arrest of judgment. 1186. Court may arrest judgment without motion. 1187. Effect of arresting judgment. 1188. Defendant, when to he held or discharged. Motion in arrest of judgment. 1185. A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a plea or verdict of guilty, or on a verdict against the defendant, on a plea of a former conviction or acquittal. It may be founded on any of the defects in the indictment or information mentioned in section one thousand and four, unless the objection has been waived by a failure to demur, and it must be made before or at the time the defendant is called for judgment. [Amendment approved April 9, 1880; amendments 1880, p. 25. In effect April 9, 1880.] 48 Cal. 252; 49 Cal. 390; 56 Cal. 535; 58 Cal. 225; 71 Cal. 389; 77 Cal 33; 82 Cal. 621; 91 Cal. 199; 98 Cal. 128; 103 Cal. 428; 103 Cal 677; 122 Cal. 143; 127 Cal. 549; 131 Cal. 250. Court may arrest judgment without motion. 1186. The court may also, on its own view of any of these defects, arrest the judgment without motion. 132 Cal. 16. Effect of arresting judgment. 1187. The effect of allowing a motion in arrest of judgment is to place the defendant in the same situation in which he was before the indictment was found or information filed. [Amend- ment approved April 9, 1880; amendments 1880, p. 25. In effect April 9, 1880.] 73 Cal. 406; 74 Cal. 98. Defendant, when to be held or discharged. 1188. If, from the evidence on the trial, there is reason to believe the defendant guilty, and a new indictment or information can be framed upon which he may be convicted, the court may order him to be recommitted to the officer of the proper county, or admitted to bail, anew, to answer the new indictment or information. If the evidence shows him guilty of another offense, he must be committed or held thereon, and in neither case shall the verdict be a bar to another prosecution. But if no evidence appears sufficient to charge him with any offense, he must, if in custody, be discharged; or if admitted to bail, his bail is exonerated; or if money has been deposited instead of bail, it must be refunded to the defendant; and the arrest of judgment shall operate as an acquittal of the charge upon which the indictment or information was founded. [Amendment ap- proved April 9, 1880; amendments 1880, p. 25. In ffect April 9, 1880.] 64 Cal. 263; 74 Cal. 98; 109 Cal. 296. 1191-1195 PENAL CODE. 696 TITLE VIII. OF JUDGMENT AND EXECUTION. Chapter I. The judgment, sections -1191-1207. II. The execution, sections 1213-1230. CHAPTER I. THE JUDGMENT. Sec. 1191. Appointing time for judgment. 1192. Upon pica of guilty, court must determine degree. 1193. Presence of defendant. 1194. Defendant in custody, how brought for Judgment. 1195. How brought before the court when on ball. IH><>. Bench-warrant to issue. 1197. Form of bench-warrant. 1198. Warrant, how served. 1199. Arrest of defendant. 1200. Arraignment of defendant for judgment. 1201. What cause may be shown against the judgment. 1202. If no cause shown, judgment to be pronounced. 1203. Circumstances in aggravation or mitigation of punishment. 1204. Proof of former conviction, etc., in mitigation, how made. 1205. Duration of imprisonment on judgment to pay a fine. 1206. Judgment to pay a fine constitutes a lien. 1207. Entry of judgment and judgment roll. Appointing time for judgment. 1191. After a plea or verdict qf guilty, or after a verdict against the defendant on the plea of a former conviction or acquittal, if the judgment be not arrested or a new trial granted, the court must appoint a time for pronouncing judgment, which, in cases of felony, must be at least two days after the verdict, if the court intend to remain in session so long; but if not, then at as remote a time as can reasonably be allowed. [Amendment approved March 30, 1874; amendments 1873-4, p. 449. In effect July 1, 1874.1 46 Cal. 96; 63 Cal. 174; 79 Cal. 632; 88 Cal. 174; 88 Cal. 177. Upon plea of guilty, court must determine degree. 1192. Upon a plea of guilty of a crime distinguished or divided into degrees, the court must, befcre passing sentence, determine the degree. 49 Cal. 178; 2 Cal. 453; 67 Cal. 114; 73 Cal. 582. Presence of defendant. 1193. For the purpose of judgment, if the conviction is for felony, the defendant must be personally present; if for a mis- demeanor, judgment may be pronounced in his absence. 68 Cal. ISO; 79 Cal. 632. Defendant in custody, how brought for judgment. 1194. When the defendant is in custody, the court may direct the officer in whose custody he is to bring him before it for judgment, and the officer must do so. How brouqht before the court when on bail. 1195. If the defendant has been discharged on bail, or has deposited money instead thereof, and docs not appear for judg- ment w^en his personal appearance is necessary, the court, in 697 THE JUDGMENT. 1196-1201 addition to the forfeiture of the undertaking of bail, or of the money deposited, may direct the clerk to issue a bench warrant for his arrest. 68 Cal. 180. Bench warrant to issue. 1196. The clerk, on the application of the district attorney, may, at any time after the order, whether the court be sitting or not, issue a bench warrant into one or more counties. Form of bench warrant. 1197. The bench warrant must be substantially in the fol- lowing form: County of - . The people of the state of California, to any sheriff, constable, marshal, or policeman in this state: A B, having been on the day of , A. D. eighteen hundred and - , duly convicted in the Superior Court of the county of , of the crime of [designating it generally], you are therefore commanded forthwith to arrest the above named A B, and bring him before that court for judgment. Given under my hand, with the seal of said court affixed, this day of , A. D. eighteen hundred and . By order of the court. [Seal.] E F, clerk. [Amendment approved April 12, 1880; stats. 1880, p. 34. In effect April 12, 1880.] 68 Cal. 180. Warrant, how served. 1198. The bench warrant may be served in any county in the same manner as a warrant of arrest, except that when served in another county it need not be indorsed by a magistrate of that county. Arrest of defendant. 1199. Whether the bench warrant is served in the county In which it was issued or in another county, the omcer must arrest the defendant and bring him before the court or commit him to the officer mentioned in the warrant, according to the com- mand thereof. Arraignment of defendant for judgment. 1200. When the defendant appears for judgment he must be informed by the court, or by the clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him. [Amendment approved April 9, 1880; amendments 18SO, p. 26. In effect April 9, 1880.] 64 Cal. 372; 70 Cal. 471; 87 Cal. 123; 88 Cal. 120; 88 Cal. 142; S8 Cal. 175; 88 Cal 178; 102 Cal. 231; 114 Cal 355; 118 Cal. 390; 132 Cal. 140. What cause may be shown against the judgment. 1201. He may show, for cause against the judgment: 1. That he is insane; and if, in the opinion 01 the court, there is reasonable ground for believing him to be insane, the question of insanity must be tried as provided in chapter VI, title X, part II of this code. If, upon the trial of that question, the jury find that he is sane, judgment must be pronounced, but if thev find him insane, he must be committed to the state lunatic asylum until he, becomes sane; and when notice is given of that fact, as provided in section 1372, he must be brought before the court for judgment; 1202-1207 PENAL CODE. 698 2. That he has good cause to offer, either in arrest of judg- ment or for a new trial; in which case the court may, in its discretion, order the judgment to be deferred, and proceed to decide upon a motion in arrest of judgment or for a new trial. 62 Cal. 55; 68 Cal. 180; 70 Cal. 471; 114 Cal. 355; 122 Cal. 411. If no cause shown, judgment to be pronounced. 1202. If no sufficient cause is alleged or appears to the court why judgment should not oe pronounced, it must thereupon be rendered. 70 Cal. 471; 133 Cal. 123. Circumstances in aggravation or mitigation of punishment. 1203. After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party thai there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its dis- cretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct. 122 Cal. 631. Proof of former conviction, etc., in mitigation, how made. 1204. The circumstances must be presented by the testimony of witnesses examined in open court, except that when a wit- ness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation fcf any kind, verbal or written, can be offered to or received by the court, or> a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section. Duration of imprisonment on judgment to pay a fine. 1205. A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied. But the judgment must specify the extent of the imprisonment, which must not exceed one day for every two dollars of the fine, nor extend in any case beyond the term for which the defendant might be sentenced to imprisonment for the offense of which he has been convicted. [Amendment approved March 10, 1891 stats. 1891, p. 52.] 64 Cal. 205; 60 Cal. 435; 63 Cal. 300; 64 Cal. 438; 66 Cal. 186; 73 Cal. 495; S2 Cal. 274; 82 Cal. 522; 83 Cal 389; 84 Cal. 166; S5 Cal 38; 83 Cal. 680; 94 Cal. 333; 97 Cal. 528; 113 Cal. 37. Judgment to pay a fine constitutes a lien. 1206. A judgment that the defendant pay a fine constitutes a lien, in like manner as a judgment for money rendered in a civil action. 113 Cal. 37; 129 Cal. 548. Entry of judgment and judgment roll. 1207. When judgment upon a conviction is rendered, the clerk must enter the same in the minutes, stating briefly the offense for which the conviction was had, and the fact of a prior conviction (if one), and must, within five days, annex together and file the following papers, which will constitute a record of the action: 699 THE JUDGMENT EXECUTION. 1213-1216 1. The indictment or information, and a copy of the minutes of the plea or demurrer. 2. A copy of the minutes of the trial. 3. The charges given or refused, and the indorsements thereon. And, 4. A copy of the judgment. [Amendment approved April 9, 1880; amendments 1880, p. 26. In effect April 9, 1880.] 52 Cal. 480; 67 Cal. 565; 58 Cal. 252; 69 Cal. 651; 65 Cal. 234; 65 Cal. 298; 71 Cal. 387; 73 Cal. 442; 77 Cal. 180; 78 Cal. 2; 88 Cal. 120; 88 Cal. 140; 88 Cal. 175; S8 Cal. 487; 103 Cal. 510; 114 Cal. 354; 118 Cal. 329; 120 Cal. 273; 121 Cal. 494; 127 Cal. 547; 133 Cal. 123. CHAPTER II. THE EXECUTION. Sec. 1213. Execution of a judgment other than of death. 1214. If for fine aloue, execution to issue as in civil cases. 1215. Judgment of fine and imprisonment, liow executed. 1216. Judgment of Imprisonment. Duty of sheriff. 1217. Execution upon judgment of death. 1218. Transmission of conviction and testimony to governor. 1219. Governor may require opinion of supreme court, thereon. 1220. Judgment of death, when suspended. 1221. Insanity of defendant, how determined. 1222. Duty of district attorney upon inquisition. 1223. Inquisition, how certified and tiled. 1224. Proceedings upon finding of jury. 1225. Proceedings when female is supposed to be pregnant. 1226. Proceedings upon the finding of the jury. 1227. Judgment of death remaining in force, not executed. 1228. Punishment of death, how inflicted. 1229. Execution, where to take; place and who to be present. 1230. Return upon death-warrant. Execution of a judgment other than of death. 1213. When a judgment, other than of death, has been pro- nounced, a certified copy of the entry thereof upon the minutes must be forthwith furnished to the officer whose duty it is to execute the judgment, and no other warrant or authority Is necessary to justify or require its execution. 103 Cal. 413. If for fine alone, execution to issue as in civil cases. 1214. If the judgment is for a fine alone, execution may be issued thereon as on a judgment in a civil action. 64 Cal. 156; 64 Cal. 438; 83 Cal. 390; 113 Cal. 37 129 Cal. 548. Judgment of fine and imprisonment, how executed. 1215. If the judgment is for imprisonment, or a fine, and imprisonment until it be paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment is complied with. 63 Cal. 300; 64 Cal. 438; S3 Cal. 390; >4 Cal. 390. Judgment of imprisonment. Duty of sheriff. 1216. If the judgment is for imprisonment in the state prison, the sheriff of the county must, upon receipt of a certified copy thereof, take and deliver the defendant to the warden of the state prison. He must also deliver to the warden the certified copy of the judgment, and take from the warden a receipt for the defendant. 1217-1223 PENAL CODE. 700 Execution upon judgment of death. 1217. When judgment of death is rendered, a warrant, signed by the judge, and attested by the clerk, under the seal of the court, must be drawn and delivered to the sheriff. It must state the conviction and judgment, and appoint a day on which the judgment is to be executed, which must not be less than sixty nor more than ninety days from the time of judgment, and must direct the sheriff to deliver the defendant, within ten days from the time of judgment, to the warden of one of the state prisons of this state, for execution, such prison to be designated in the warrant. [Amendment approved March 31, 1891; stats. 1891, p. 272.] &4 Cal. 92; 68 Cal. 180; 93 Cal. 439; 95 Cal. 429; . ' 119 Cal. 207. Transmission of conviction and testimony to governor. 1218. The judge of the court of which a conviction requiring judgment of death is had, must, immediately after the con- viction, transmit to the governor, by mail or otherwise, a state- ment of the conviction and judgment, and of the testimony given at the trial. 68 Cal. 180. Governor may require opinion of Supreme Court thereon. 1219. The governor may thereupon require the opinion of the justices of the Supreme Court and of the attorney general, or any of them, upon the statement so furnished. Judgment of death, when suspended. 1220. No judge, court, or officer, other than the governor, can suspend the execution of a judgment of death, except the warden of the state prison to whom he is delivered for execution, as provided in the six succeeding sections, unless an appeal is taken. [Amendment approved March 31, 1891; stats. 1891, p. 273.] Insanity of defendant, how determined. 1221. If, after judgment of death, there is good reason to suppose that the defendant has become insane, the warden of the state prison to whom he is delivered for execution, with the concurrence of the judge of the Superior Court of the county in which such prison is situated, may summon from the list of jurors selected by the supervisors for the year, a jury of twelve persons, to inquire into the supposed insanity, and must give immediate notice thereof to the district attorney of "such county. [Amendment approved March 31, 1891; stats. 1891. p. 273.] Duty of district attorney upon inquisition. 1222. The district attorney must attend the inquisition, and may produce witnesses before the jury, for which purpose he may issue process in the same manner as for witnesses to attend before the grand jury, and disobedience thereto may be punished in like manner as disobedience to process issued by the court. Inquisition, how certified and filed. 1223. A certificate of the inquisition must be signed by the jurors and the warden, and filed with the clerk of the Superior Court of the county in which such state prison is situated. [Amendment approved March 31, 1891; Stats. 1891, p. 273.] 701 PHE EXECUTION. 1224-122$ Proceedings upon finding of jury. 1224. If it is found by the inquisition that the defendant is sane, the warden must execute the judgment; but if it is found that he is insane, the warden must suspend the execution of the judgment until he receives a warrant from the govenor, or from the 'judge of the Superior Court of the county in which such state prison is situated, directing the execution of the judgment. If the inquisition finds that the defendant is insane, the warden must immediately transmit it to the governor, who may, when the defendant becomes sane, issue a warrant ap- pointing a day for the execution of the judgment. [Amend- ment approved March 31, 1891; Stats. 1891, p. 273.] Proceedings when female is supposed to be pregnant. 1225. If there is good reason to suppose that a female against whom a judgment of death is rendered is pregnant, the warden of the state prison to whom she is delivered for execution, with the concurrence of the Superior Court of the county in which such state prison is situated, may summon a jury of three physicians to inquire into the supposed pregnancy. Immediate notice thereof must be given to the district attorney of such county, and the provisions of sections twelve hundred and twenty-two and twelve hundred and twenty-three apply to the proceedings upon the inquisition. [Amendment approved March 31, 1891; Stats. 1891, p. 273.1 Proceedings upon the finding of the jury. 1226. If it is found by the inquisition that the female is not pregnant, the warden must execute the judgment; if it is found that she is pregnant, the warden must suspend the execution of the judgment, and transmit the inquisition to the governor. When the governor is satisfied that the female is no longer preg- nant, he may issue his warrant appointing a day for the execu- tion of the judgment. [Amendment approved March 31, 1891; Stats. 1891, p. 274.] Judgment of death remaining in force, not executed. 1227. If for any reason a judgment of death has not been executed, and it remains in force, the court in which the con- viction is had, on the application of the district attorney of the county in which the conviction is had, must order the defend- ant to be brought before it, or if he is at large, a warrant for apprehension may be issued. Upon the defendant being brought before the court, it must inquire into the facts, and if no legal reasons exist against the execution of the judgment, must make an order that the warden of the state prison to whom the sheriff is directed to deliver the defendant, shall execute the judgment at a specified time. The warden must execute the judgment accordingly. [Amendment approved March 31, 1891; Stats. 1891, p. 274.] 54 Cal. 92; 61 Cal. 539; 68 Cal. 180; 93 Cal. 439; 119 Cal. 207: 120 Cal. 627. Punishment of death, how inflicted. 1228. The punishment of death must be inflicted by hanglnc the defendant by the neck until he is dead. 59 Cal. 357. 1229-1235 PENAL CODE. 702 Execution, where to take place and who to be present. 1229. A judgment of death must be executed within the walls of one of the state prisons designated by the court by which judgment is rendered. The warden of the state prison where the execution is to take place must be present at the execution and must invite the presence of a physician, the attorney general of the state, and at least twelve reputable citizens, to be selected by him; and he shall, at the request of the defendant, permit such ministers of the gospel, not exceeding two, as the defend- ant may name, and any persons, relatives or friends, not to ex- ceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execu- tion. But no other persons than those mentioned in this section can be present at the execution, nor can any person under age be allowed to witness the same. [Amendment approved March 31, 1891; Stats. 1891. p. 274.] 59 Gal. 355; 93 Cal. 439; 96i Cal. 429. Return upon death-warrant. 1230. After the execution, the warden must make a return upon the death warrant to the court by which the judgment was rendered, showing the time, mode, and manner in which it was executed. [Amendment approved March 31, 1891; Stats. 1891. p. 274.] TITLE IX. OF APPEALS TO THE SUPREME COURT. Chap. I. Appeals, when allowed and how taken, and the Effect thereof, 1235-46. II. Dismissing an Appeal for Irregularity, 1248-9. III. Argument of the .Appeal, 1252-5. IV. Judgment upon Appeal, 1258-65. CHAPTER I. APPEALS, WHEN ALLOWED AND HOW TAKEN, AND THE EFFECT THEREOF. Sec. 1235. Appeal, by whom taken, on questions of law alone. 1236. Parties, how designated on appeal. 1237. Appeal, when may be taken by the defendant. 1238. In what cases by the people. 1230. Appeals, within what time to be taken. 1240. Appeal, how taken. 1241. When notice may be served by publication. 1242. Effect of an appeal by the people. 1243. Effect of an appeal by the defendant. 1244. Same. 1245 Same. 1246. Duty of clerks upon appeal. Appeal, by whom taken, on questions of law alone. 1235. Either party in a criminal action amounting to a felony may appeal to the Supreme Court, on questions of law alone, as prescribed in this chapter. 65 Cal. 645; 108 Cal. 663; 109 Cal. 279. 703 APPEALS TO SUPREME COURT. 1236-1243 Parties, how designated on appeal. 1236. The party appealing is known as the appellant, and the adverse party as the respondent, but the title of the action, is not changed in consequence of the appeal. Appeal, when may be taken by the defendant. 1237. An appeal may be taken by the defendant: 1. From a final judgment of conviction; 2. From an order denying a motion for a new trial; 3. From any order made after judgment, affecting the sub- stantial rights of the party. 54 Cal. 92: 65 Cal. 100: 77 Cal. 309: 82 Cal. 615; 95 Cal. 595; 115 Cal. 161; 117 Cal. 666; 119 Cal. I; 119 Cal. 57; 119 Cal. 209; 132 Cal. 15. In what cases by the people. 1238. An appeal may be taken by the people: 1. From an order setting aside the indictment or inrormation; 2. From a judgment for the defendant on a demurrer to the indictment or information; 3. From an order granting a new trial; 4. From an order arresting judgment; 5. From an order made after judgment, affecting the sub- stantial rights of the people; 6. From an order of the court directing the jury to find for the defendant. [Amendment approved March 27, 1897;. Stats. 1897. p. 195. In effect immediately.] 65 Cal. 79; 65. Cal. 644; 70 Cal. 18; 71 Cal. 546; 107 Cal. 478; 113 Cal. 474; 114 Cal. 64. Appeals, within what time to be taken. 1239. An appeal from a judgment must be taken within one years after its rendition, and from an order, within sixty days after it is made. 53 Cal. 630; 95 Cal. 595; 105 Cal. 263; 132 Cal. 139. Appeal, how taken. 1240. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party. 49 Cal. 455; 56 Cal. 120; 62 Cal. 482; 66 Cal. 11; 70 Cal. 34; 77 Cal. 309; 119 Cal. 669. When notice may be served by publication. 1241. If personal service of the notice cannot be made, the judge of the court in which the action was tried, upon proof thereof, may make an order for the publication of the notice in some newspaper for a period not exceeding thirty days; such publication is equivalent to personal service. 49 Cal. 455. Effect of an appeal by the people. 1242. An appeal taken by the people in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed. Effect of an appeal by the defendant. 1243. An appeal to the Supreme Court from a judgment of conviction stays the execution of the judgment in all capital cases, and in all other cases, upon filing with the clerk of the court in which the conviction was had, a certificate of the 1244-1249 PENAL CODE. 704 judge of such court, or of a justice of the Supreme Court, that, in his opinion, there is probable cause for the appeal, but not otherwise. [Amendment approved March 30, 1874; Amend- ments 1873-4, p. 450. In effect July 1, 1874.] 49 Cal. 682; 68 Cal. ISO: 81 Cal. 164: 95 Cal. 596; 96 Cal. 596; 104 Cal. 401; 119 Cal 129; 119 Cal. 210; 125 Cal. 252. Same. 1244. If the certificate provided for in the preceding section is filed, the sheriff must, if the defendant be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment, and detain him to abide the judgment on appeal. Same. 1245. If, before the granting of the certificate, the judgment has commenced, the further execution thereof is suspended, and upon service of a copy of such certificate the defendant must be restored, by the officer in whose custody he is, to his original custody. Duty of clerks upon appeal. 1246. Upon the appeal being taken the clerk of the court with whom the notice of appeal is filed must, within twenty days thereafter, in case the bill of exceptions has been settled by the judge before the giving of said notice, but if not, then, within twenty days from the settlement of the bill of exceptions, without charge, transmit to the clerk of the appellate court, fifteen printed copies (one of which shall be certified to and be the original ) of the notice of appeal, the record, and of all bil's of exception; and upon receipt thereof the clerk of the appellate court must file the original, and dispose of the copies as he is required to do in the case of transcripts on appeal in civil cases, and all his services as provided herein must be without charge. The clerk of the lower court must also within the time above specified serve printed copies of the above named papers without charge upon the defendant's attorney and upon the attorney-general. The printing of the above named papers is a county charge. [Amendment approved March 19, 1889; Stats. 1889, p. 325.] 84 Cal. 582; 115 Cal. 167; 120 Cal. 554. CHAPTER II. DISMISSING AN APPEAL FOR IRREGULARITY. Seo. 1248. For what Irregularity, and how disniissecr. 1249. Dismissal for want of a return. For what irregularity, and how dismissed. 1248. If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may, on any day, on motion of the respondent, upon five days' notice, accompanied with copies of the papers upon which the motion is founded, order it to be dismissed. [Amendment approved April 9, 1880; Amendments 1880, p. 10. In effect April 9, 1880.] 69 Cal. 238: 95 Cal. 595; 1S2 Cal. 139. Dismissal for want of a return. 1249. The court may also, upon like motion, dismiss the appeal, if the return is not made as provided in section 1246, unless for good cause they enlarge the time for that purpose. 705 APPEAL DISMISSING ARGUMENT JUDGMENT. 1252-1259 CHAPTER III. ARGUMENT OF THE APPEAL Sec. 1252. Appeals, when to he heard and determined. 1253. Judgment cannot be reversed without argument. 1254. Number of counsel to be heard. 1255. Defendant need not be present. Appeals, when to be heard and determined. 1252. All appeals in criminal cases must be heard and deter- mined by the appellate court within sixty days after the record is filed in said appellate court, unless continued on motion or with the consent of the defendant. [Amendment approved April 9, 1880; Amendments 1880, p. 10. In effect April 9, 1880.] 91 Cal. 29; 97 Cal. 249. Judgment cannot be reversed without argument. 1253. The judgment may be affirmed if the appellant fail to appear, but can be reversed only after argument, though the respondent fail to appear. 55 Cal. 298; 97 Cal. 248. Number of counsel to be heard. 1254. Upon the argument of the appeal, if the offense Is punishable with death, two counsel must be heard on each side, if they require it. In any other case the court may, in its discretion, restrict the argument to one counsel on each side. 55 Cal. 298. Defendant need not be present. 1255. The defendant need not personally appear in the appellate court. 55 Cal. 298. CHAPTER IV. JUDGMENT UPON APPEAL. Bc. 1258. Judgment without regard to technical errors. 1259. What may be reviewed on an appeal by defendant. 1260. May reverse, affirm, or modify the judgment, and order new trial. 1261. New trial, where to be had. 1262. Defendant discharged on reversal of judgment. 1263. Judgment to be executed on affirmance. 1264. Judgment of appellate court, how entered and remitted. 1265. Jurisdiction ceases after judgment remitted. Judgment without regard to technical errors. 1258. After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties. 50 Cal. 471; 53 Cal. 495; 561 Cal. 525; 56 Cal 407; 57 Cal 99; 58 Cal. 266; 59 Cal. 377; 59 Cal 604: 62 Cal. 520; 63 Cal. 616; 65 Cal. 149; 65 Cal 566; 71 Cal. 387; 73 Cal. 316; 88 Cal. 139; 88 Cal. 489; 90 Cal. 572; 94 Cal. 119; 102 Cal. 387 104 Cal. 484; 105 Cal. 264; 106 Cal. 40; 109 Cal 297; 115 Cal. 60; 117 Cal. 657; 120 Cal. 274; 133 Cal. 73; 133 Cal. 124. What may be reviewed on an appeal by defendant. 1259. Upon an appeal taken by the defendant from a judgment the court may review any intermediate order or ruling involv- ing the merits, or which may have affected the judgment. 6S< Cal. 100; 119 Cal. 2. CRIMES--45 1260-1265 PENAL CODE. 706 May reverse, affirm, or modify the judgment, and order new trial. 1260. The court may reverse, affirm, or modify the judgment or order appealed from, and may set aside, affirm, or modify 'any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial. 94 Cal. 386. New trial, where to be had. 1261. When a new trial is ordered it must be directed to be had in the court of the county from which the appeal was taken. Defendant discharged on reversal of judgment. 1262. If a judgment against the defendant is reversed with- out ordering a new trial, the appellate court must, if he is in custody, direct him to be discharged therefrom; or if on bail, that his bail be exonerated; or if money was deposited instead of bail, that it be> refunded to the defendant. 61 Cal. 380. Judgment to be executed on affirmance. 1263. If a judgment against the defendant is affirmed, the original judgment must be enforced. 54 Cal. 103. Judgment of appellate court, how entered and remitted. 1264. When the judgment of the appellate court is given, it must be entered in the minutes, and a certified copy of the entry forthwith remitted to the clerk of the court from which the appeal was taken. Jurisdiction ceases after judgment remitted. 1265. After the certificate of the judgment has been remitted to the court below, the appellate court has no further jurisdic- tion of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect must be mad* by the court to which the certificate is remitted. 707 JUDGMENT ON APPEAL BAIL. TITLE X. MISCELLANEOUS PROCEEDINGS. Chap. I. Bail, 1268-1317. II. Who may be Witnesses in Criminal Actioas, 1321-3. III. Compelling the Attendance of Witnesses, 1326-33. IV. Examination of Witnesses Conditionally, 1335-46. V. Examination of Witnesses on Commission, 1349-62. VI. Inquiry into the Insanity of the Defendant before Trial or after Conviction, 1367-73. VII. Compromising certain Public Offenses by leave of the Court, 1377-9. VIII. Dismissal of the Action, before or after Indictment, for want of Prosecution or otherwise, 1382-7. IX. Proceedings against Corporations, 1390-7. X. Entitling Affidavits, 1401. XI. Errors and Mistakes in Pleadiag and other Proceed- ings, 1404. XII. Disposal of Property Stolen or Embezzled, 1407-13. XIII. Reprieves, Commutations, and Pardons, 1417-23. CHAPTER I. BAIL. Article I. In what cases the defendant may be admitted to bail. II. Bail upon being held to answer before indictment. III. Bail upon an indictment before conviction. IV. Bail on appeal. V. Deposit instead of bail. VI. Surrender of the defendant. VII. Forfeiture of the undertaking of bail or of the deposit of money. VIII. Recommitment of the defendant after having given bail or deposited money instead of bail. 1268-1273 PENAL CODE. 708 ARTICLE I. IN WHAT CASES THE DEFENDANT MAY Bk ADMITTED 1O BAIL. Sec. 1268. Admission to bail defined. 1269. Taking of bail defined. 1270. Offense not bailable. 1271. Defendant when admitted to bail before conviction. 1272. When admitted to bail after conviction and upon appeal. 1273. Nature of bail. 1274. When bail is matter of discretion, notice of application must be given to district attorney. Admission to bail defined. 1268. Admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail. Taking of bail defined. 1269. The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum. Offense not bailable. 1270. A defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his guilt is evident or the presumption thereof great. The finding of an indictment does not add to the strength of the proof or the pre- sumptions to be drawn therefrom. 68 Cal. 177; 85 Cal. 365; 92 Cal. 189. Defendant when admitted to bail before conviction. 1271. If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right. 54 Cal. 103; 68 Cal. 177; 92 Cal. 189. When admitted to bail after conviction and upon appeal. 1272. After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only; 2. As a matter of discretion in all other cases. 48 Cal. 552; 49 Cal. 681; 62 Cal. 491; 68 Cal. 177; 89 Ca!. 80; 112 Cal. 629. Nature of bail. 1273. If the offense is bailable, the defendant may be ad- mitted to bail before conviction: First For his appearance before the magistrate, on the ex- amination of the charge, before being held to answer. Second To appear at the court to which the magistrate is re- quired to return the depositions and statement, upon the defendant being held to answer after examination. Third After indictment, either before the bench warrant is issued for his arrest, or upon any order of the court committing him, or enlarging the amount of bail, or upon his being surren- 709 BAIL BEFORE INDICTMENT. 1274-1278 dered by his bail to answer the indictment in the court in which it is found, or to which it may be transferred for trial. And after conviction, and upon an appeal: First If the appeal is from a judgment imposing a fine only, on the undertaking of bail that ne will pay the same, or such part of it as the appellate court may direct, if the judgment is affirmed or modified, or the appeal is dismissed. Second If judgment of imprisonment has been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that in case the judgment be reversed, and that the cause be remanded for a new trial, that he will appear in the court to which said cause may be remanded, and submit himself to the orders and process thereof. [Amendment approved February 15, 1876; Amendments 1875-6, p. 116. In effect in sixty days.] 54 Cal. 103. When bail is matter of discretion, notice of application must be given to district attorney. 1274. When the admission to bail is a matter of discretion, the court or officer to whom the application is made must require reasonable notice thereof to be given to the district attorney of the county. ARTICLE II. BAIL UPON BEING HELD TO ANSWER BEFORE INDICT- MENT. Sec. 1277. What magistrates may admit to ball. 1278. Bail, how put in, and form of the undertaking. 12T!. Qualifications of bail. 12SO. Bail, how to justify. 1281. On allowance of bail, defendant to be discharged. What magistrates may admit to bail. 1277. When the defendant has been held to answer upon an examination for a public offense, the admission to bail may be by the magistrate by whom he is so held, or by any magistrate who has power to issue the writ of habeas corpus. Bail, how put in, and form of the undertaking. 1278. Bail is put in by a written undertaking, executed by two sufficient sureties, (with or without the defendant, in the discretion of the magistrate) and acknowledged before the court or magistrate, in substantially the following form: An order having been made on the day of , A. D. eighteen . by A B, a justice of the peace of - county, [or as the case may be] that C D be held to answer upon a charge of [stating briefly the nature of the offense], upon which he has been admitted to bail in the sum of dollars; we, E F and G H, [stating their place of residence and occupation] hereby undertake that the above named C D will appear and answer the charge above mentioned, in whatever court it may be prose- cuted, and will at all times hold himself amenable to the or- ders and process of the court, and if convicted, will appear for judgment and render himself in execution thereof, or if he fails to perform either of these conditions, that we will pay to the people of the state of California the sum of - dollars [in- serting the sum in which the defendant is admitted to bail]. 54 Cal. 410. 1279-1286 PENAL CODE. 710 Qualifications of bail. 1279. The qualifications of bail are as follows: 1. Each of them must be a resident, householder, or free- holder within the state; but the court or magistrate may refuse to accept any person as bail who is not a resident of the county where bail is offered; 2. They must each be worth the amount specified in the undertaking, exclusive of property exempt from execution; but the court or magistrate, on taking bail, may allow more than two sureties to justify severally in amounts less than that expressed in the undertaking, if the whole justification be equiv- alent to that of sufficient bail. Bail, how to justify. 1280. The bail must in all cases justify by affidavit taken before the magistrate, that they each possess the qualifications provided in the preceding section. The magistrate may further examine the bail upon oath concerning their sufficiency, in such manner as he may deem proper. On allowance of bail, defendant to be discharged. 1281. Upon the allowance of bail and the execution of the undertaking, the magistrate must, if the defendant is in custody, make and sign an order for his discharge, upon the delivery of which to the proper officer, the defendant must be discharged. 54 Cal. 411. ARTICLE III. BAIL UPON AN INDICTMENT BEFORE CONVICTION. Sec. 1284. When offense is not capital. 1285. When the offense is capital. 1286. Bail on hab'eas corpus. 1287. Form of undertaking. 1288. Sections applicable to qualifications, etc. 1289. Increase or reduction of ball. When offense is not capital. 1284. When the offense charged is not punishable with death, the officer serving the bench warrant must, if required, take the defendant before a magistrate in the county in which it is issued, or in which he is arrested, for the purpose of giving bail. [Amendment approved April 9, 1880; amendments 1880, p. 26. In effect April 9, 1880.] 65 Cal. 582. When the offense is capital. 1285. If the offense charged is punishable with death, the officer arresting the defendant must deliver him into custody, according to the command of the bench warrant. [Amendment approved April 9, 1880; amendments 1880, p. 26. In effect April 9, 1880.] 59 Cal. 417. Bail on habeas corpus. 1286. When the defendant is so delivered into custody, he must be held by the sheriff, unless admitted to bail on exam- ination upon a writ of habeas corpus. 59 Cal. 417. 711 BAIL ON INDICTMENT APPEAL. 1287-1292 Form of undertaking. 1287. The bail must be put in by a written undertaking, executed by two sufficient sureties, (with or without the defend- ant, in the discretion of the court or magistrate) and ac- knowledged before the court or magistrate, in substantially the following form: An indictment having been found on the day of , A. D. eighteen , in the county court of the county of , charging A B with the crime of , [designating it generally] and he having been admitted to bail in the sum of dollars, we, C D and E F, of [stating their place of residence and occupation] hereby undertake that the above-named A B will appear and answer the indictment above mentioned, in whatever court it may be prosecuted, and will at all times render himself amenable to the orders and process of' the court, and, if convicted, will appear for judgment and render himself in execution thereof; or, if he fails to perform either of thesel conditions, that we will pay to the people of the state of California the sum of dollars [inserting the sum in which the defendant is admitted to bail]. 63 Cal. 409. Sections applicable to qualifications, etc. 1288. The provisions contained in sections twelve hundred and seventy-nine, twelve hundred and eighty, and twelve hun- dred and eighty-one, in relation to bail before indictment, apply to bail after indictment. [Amendment, approved March 30, 1874; amendments 1873-4, p. 450. In effect July 1, 1874.] Increase or reduction of bail. 1289. After a defendant has been admitted to oail upon an indictment or information, the court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the court may order the defendant to be committed to actual custody, unless he give bail in such increased amount. If application be made by the defendant for a reduction of the amount, notice of the application must be served upon the district attorney. [Amend- ment, approved April 9, 1880; amendments 1880, p. 27. In. effect April 9, 1880.] ARTICLE IV. BAIL ON APPEAL. Sec. 1291. Who may admit to bail. 1292. Bail, qualifications of, and condition of undertaking. Who may admit to bail. 1291. In the cases in which defendant may be admitted to ball upon an appeal, the order admitting him to bail may be made by any magistrate having the power to issue a writ of habeas corpus, or by the magistrate before whom the trial was had. [Amendment, approved February 25, 1878; amendments 1877-8, p. 122. In effect February 25, 1878.] Bail, qualifications of, and condition of undertaking. 1292. The bail must possess the qualifications, and must be put in, in all respects, as provided in article II of this chapter, except that the undertaking must be conditioned as prescribed in section 1273, for undertakings of bail on appeal. 1295-1301 PENAL CODE. 712 ARTICLE V. DEPOSIT INSTEAD OF BAIL. "Sec. 1295. Deposit, when and how made. 129fl. May, after hail is given and before forfeiture. 1297. Deposit to be applied, to payment of Judgment and fine. Deposit, when and how made. 1295. The defendant, at any time after an order admitting him to bail, instead of giving bail may deposit with the clerk of the court in which he is held to answer, the sum mentioned in the order, and upon delivering to the officer in whose custody he is a certificate of the deposit, he must be discharged from custody. 83 Cal. 391. May, after bail is given and before forfeiture. 1296. If the defendant has given bail, he may, at any time before the forfeiture of the undertaking, in like manner deposit the sum mentioned in the recognizance, and upon the deposit being made the bail is exonerated. Deposit to be applied to payment of judgment and fine. 1297. When money has been deposited, if it remains on deposit at the time of a judgment for the payment of a fine, the county clerk must, under the direction of the court, apply the money in satisfaction thereof, and after satisfying the fine and costs, must refund the surplus, if any, to the defendant. ARTICLE VI. SURRENDER OF THE DEFENDANT. Bee. 1300. Surrender, by whom, when, 'and how made. 1301. Defendant, how surrendered. 1302. Return of deposit on surrender. Surrender, by whom, when, and how made. 1300. At any time before the forfeiture of their undertaking the bail may surrender the defendant in their exoneration, or he may surrender himself, to the officer to whose custody he was committed at the time of giving bail, in the following manner: 1. A certified copy of the undertaking of the bail must be delivered to the officer, who must detain the defendant in hi3 custody thereon as upon a commitment, and by a certificate in writing acknowledge the surrender; 2. Upon the undertaking and the certificate of the officer, the court in which the action or appeal is pending may, upon notice of five clays to the district attorney of the county, with a copy of the undertaking and certificate, order that the bail be exonerated, and on filing the order and the papers used on the application, they are exonerated accordingly. 102 Cal. 312. Defendant, how surrendered. 1301. For the purpose of surrendering the defendant, the bail, at any time before they are finally discharged, and at any place within the state, may themselves arrest him, or by a written authority, indorsed on a certified copy of the under- taking, may empower any person of suitable age and discretion to do so. 713 FORFEITURE OF BAIL. 1H02-1307 Return of deposit on surrender. 1302. If money has been deposited instead of bail, and the defendant, at any time before the forfeiture thereof, surrenders himself to the officer to whom the commitment was directed, In the manner provided in the last two sections, the court must order a return of the deposit to the defendant, upon producing the certificate of the officer showing the surrender, and upon a notice of five days to the district attorney, with a copy of the certificate. ARTICLE VII. FORFEITURE OF THE UNDERTAKING OF BAIL OR OF THE DEPOSIT OF MONEY. Sec. 1. {<>">. How forfeited, and how forfeiture discharged. 1.'{(M!. Forfeiture to he enforced by action. l.'{0~. Deposit, when forfeited, how disposed of. How forfeited, and how forfeiture discharged. 1305. If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence In court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes, and the undertaking of bail, or the money deposited instead of bail, as the case may be, is thereupon declared forfeited. But if at any time before the final adjournment of the court, the defendant or his bail appear and satisfactorily excuse his neglect, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just. 102 Cal. 312. Forfeiture to be enforced by action. 1306. If the forfeiture is not discharged, as provided in the last section, the district attorney may at any time after the adjournment of the court proceed by action only against the bail upon their undertaking. 63 Cal. 410. Deposit, when forfeited, how disposed of. 1307. If, by reason of the neglect of the uefendant to appear, money deposited instead of bail is forfeited, and the forfeiture is not discharged or remitted, the clerk with whom it is depos- ited must, immediately after the final adjournment of the court, pay over the money deposited to the county treasurer. 1310-1314 PENAL CODE. 714 ARTICLE VIII. RECOMMITMENT OF THE DEFENDANT, AFTER HAVING GIVEN BAIL OR DEPOSITED MONEY INSTEAD OF BAIL. Sec. 1310. In what cases. 1311. Contents of order. 1312. Defendant may be arrested in any county. 1313. If for failure to appear, defendant must be committed. 1314. If for other cause, he may be admitted to ball. 1315. Bail in such case, by whom taken. 1316. Form of the undertaking. 1317. Bail must possess what qualifications, and how put In. In what cases. 1310. The court to which the committing magistrate returns the depositions, or in which an indictment, information, or appeal is pending, or to which a judgment on appeal is remitted to be carried into effect, may, by an order entered upon its minutes, direct the arrest of the defendant and his commitment to the officer to whose custody he was committed at the time of giving bail, and his detention until legally discharged, in the following cases: , 1. When, by reason of his failure to appear, he has incurred a forfeiture of his bail, or of money deposited instead thereof. 2. When it satisfactorily appears to the court tnat his bail, or either of them, are dead or insufficient, or have removed from the state. 3. Upon an indictment being found or information filed in the cases provided in section nine hundred and eighty-five. [Amendment, approved April 9, 1880; amendments 1880, p. 27. In effect April 9, 1880.] Contents of order. 1311. The order for the recommitment of the defendant must recite generally the facts upon which it is founded, and direct that the defendant be arrested by any sheriff, constable, marshal, or policeman in this state, and committed to the officer in whose custody he was at the time he was admitted to bail, to be detained until legally discharged. Defendant may be arrested in any county. 1312. The defendant may be arrested pursuant to the order, upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest, except that when arrested in another county the order need not be indorsed by a magistrate of that county. If for failure to appear, defendant must be committed. 1313. If the order recites, as the ground upon which it is made, the failure of the defendant to appear for judgment upon conviction, the defendant must be committed according to the requirement of the order. If for other cause, he may be admitted to bail. 1314. If the order be made for any other cause, and the offense is bailable, the court may fix the amount of bail, and may cause a direction to be inserted in the order that the defendant be admitted to bail in the sum fixed, which must be specified in the order. 715 RECOMMITMENT WITKKSStS. 1315-1323 Bail in such case, by whom taken. 1315. When the defendant is admitted to bail, the bail may be taken by any magistrate in the county, having authority in a similar case to admit to bail, upon the holding of the defendant to answer before an indictment, or by any other magistrate designated by the court. Form of the undertaking. 1316. When bail is taken upon the recommitment of the defendant, the undertaking must be in substantially the fol- lowing form: An order having been made on the day of , A. D. eighteen , by the court, [naming it] that A B be admitted to bail in the sum of dollars, in an action pending in that court against him in behalf of the people of the state of Califor- nia, upon an [information, presentment, indictment, or appeal, as the case may be], we, C D and E F, of [stating their places of residence and occupation], hereby undertake taat the above- named A B will appear in that or any other court in which his appearance may be lawfully required upon that [information, presentment, indictment, or appeal, as the case may oe], and will at all times render himself amenable to its orders and process, and appear for judgment and surrender himself in execution thereof; or if he fails to perform either of these conditions, that we will pay to the people of tiie state of Califor- nia the sum of dollars [insert the sum in which the defendant is admitted to bail]. Bail must possess what qualifications, and how put in. 1317. The bail must possess the qualifications, and must be put in, in all respects, in the manner prescribed in article II of this chapter. CHAPTER II. WHO MAY BE WITNESSES IN CRIMINAL ACTIONS. Sec. 1321. Who are competent witnesses. 1322. When husband and wife are not competent witnesses. 1323. When the defendant is not a competent witness. Who are competent witnesses. 1321. The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and pro- ceedings, except as otherwise provided in this code. 47 Cal. 126; 70 Cal. 54; 104 Cal. 4S6; 106 Cal. 92. When husband and wife are not competent witnesses. 1322. Except with the consent of both, or in cases of criminal violence upon one by the other, neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties. [Amendment approved March 30, 1874; amendments 1873-4, p. 451. In effect July 1, 1874.] 64 Cal. 257; 70 Cal. 54; 73 Cal. 627. When the defendant is not a competent witness. 1323. A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offer himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. His neglect or refusal to be a witness cannot in any 1326-1827 PENAL CODE. 716 manner prejudice him nor be used against him on the trial or proceeding. [Amendment, approved March 30, 1874; amend- ments 1873-4, p. 451. In effect July 1, 1874.] 47 Cal. 126; S3 Cal. 67; 57 Cal. 573; 66 Gal. 603; 70 Cal. 54; 73 Cal. 243; 75 Cal. 388; 75 Cal. 416; 78 Cal. 92; 81 Cal. 116; 83 Cal. 139; 98 Cal. 238; 99 Cal 361; 99 Cal. 442; 100 Cal. 475; 100 Cal. 481; 104 Cal. 487; 118 Cal. 461; 122 Cal. 12; 122 Cal. 497. CHAPTER III. COMPELLING THE ATTENDANCE OF WITNESSES. Sec. 132fi. Subpoena defined, and who may issue. 1327. Form of subpoena. 1328. Subpoena, by whom and how served. l.T_".t. Expenses of witness from without the county, or poor. 1330. Attendance of witness residing or served out of the county. 1331. Disobedience to subpoena, etc. 1332. Failure to appear, undertaking forfeited. 1333. Temporary removal of imprisoned witness. Subpoena defined, and who may issue. 1326. The process by which the attendance of a witness before a court or magistrate is required is a subpoena; it may be signed and issued by: 1. A magistrate before whom a complaint is laid, for witnesses in the state, either on behalf of the people or of the defendant. 2. The district attorney, for witnesses in the state, in support of the prosecution, or for such other witnesses as the grand jury, upon an investigation pending before them, may direct. 3. The district attorney, for witnesses in the state, in support of an indictment or information, to appear before the court in which it is to be tried. 4. The clerk of the court in which an indictment or infor- mation is to be tried; and he must, at any time, upon application of the defendant, and without charge, issue as many blank sub- poenas, subscribed by him as clerk, for witnesses in the state, as the defendant may require. [Amendment, approved April 9, 1880; amendments 1880, p. 27. In effect April 9, 1880.] Form of subpoena. 1327. A subpoena authorized by the last section must be sub- stantially in the following form: The people of the state of California to A B: You are commanded to appear before C D , a justice of the peace of township, in county, [or as the case may be] at [naming the place], on [stating the day and hour], as a witness in a criminal action prosecuted by the people of the state of California against E F. Given under my hand this day of , A. D. eighteen , G H, justice of the peace, [or "J K, district attor- ney," or "By order of the court, L M , clerk," or as the case may be]. If books, papers, or documents are required, a direction to the following effect must be contained in the sub- poena: "And you are required, also, to bring with you the following" [describing intelligibly the books, papers, or doc- uments required]. 717 COMPELLING ATTENDANCE OF WITNESSES. 1328-1333 Subpoena, by whom and how served. 1328. A subpoena may be served by any person, but a peace officer must serve in his county any subpoena delivered to him for, service, either on the part of the people or of the defendant, and must, without delay, make a written return of the service, subscribed by him, stating the time and place of service. The service is made by showing the original to the witness person- ally and informing him of its contents. Expenses of witness from without the county, or poor. 1329. When a person attends before a magistrate, grand jury, or court, as a witness in a criminal case, upon a subpoena or in pursuance of an undertaking, and it appears that he has come from a place outside of the county, or that he is poor and unable to pay the expenses of such attendance, the court, at its dis- cretion, if the attendance of the witness be upon a trial, by an order upon its minutes, or, in any other case, the judge, at his discretion, by a written order, may direct the county auditor to draw his warrant upon the county treasurer in favor of witness for a reasonable sum, to be specified in the order, for the nec- essary expenses of the witness. [Amendment, approved March 8, 1876; amendments 1875-6, p. 117. In effect in sixty days.j 64 Cal. 244; 109 Cal. 334; 130 Cal. 676. Attendance of witness residing or served out of the county. 1330. No person is obliged to attend as a witness before a court or magistrate out of the county where the witness resides, or is served with the subpoena, unless the judge of the court in which the offense is triable, or a justice of the Supreme Court, or a judge of a Superior Court, upon an affidavit of the district attorney or prosecutor, or of the defendant, or his counsel, stating that he believes the evidence of the witness is material, and his attendance at the examination or trial necessary, shall indorse on the subpoena an order for the attendance of the witness. [Amendment, approved April 12, 1880; amendments 1880, p. 34. In effect April 12, 1880.] 70 Cal. 205; 132 Cal. 305. Disobedience to subpoena, etc. 1331. Disobedience to a subpoena, or a refusal to be sworn or to testify as a witness, may be punished by the court or magis- trate as a contempt. A witness disobeying a subpoena issued on the part of the defendant, unless he show good cause for his nonattendance, is liable to the defendant in the ram of one hundred dollars, which may be recovered in a civil action. Failure to appear, undertaking forfeited. 1332. When a witness has entered into an undertaking to appear, upon his failure to do so the undertaking is forfeited In the same manner as undertakings of bail. Temporary removal of imprisoned witness. 1333. When the testimony of a material witness for the peo- ple is required in a criminal action, before a court of record of this state, and such witness is a prisoner in the state prison, or in a county jail, an order for his temporary removal from such prison or jail, and for his production before such court, may be made by the court in which the action is pending, or by the judge thereof; but in case the prison or jail is out of the county in which the application is made, such order shall only be made 1335-1338 PENAL CODE. 718 upon the affidavit of the district attorney, or other person, on behalf of the people, showing that the testimony is material and necessary; and even then the granting of the order shall be in the discretion of the court or judge. The order shall be executed "by the sheriff of the county in which it shall be made, whose duty it shall be to bring the prisoner before the proper court, to safely keep him, and when he is no longer required as a wit- ness, to return him to the prison or jail whence he was taken; the expense of executing such order shall be paid by the county in which the order shall be made. [New section approved April 1, 1878; amendments 1877-8, p. 123. In effect April 1, 1878.] 82 Cal. 457. CHAPTER IV. EXAMINATION OF WITNESSES CONDITIONALLY. Bee. 1335. Witnesses examined conditionally for the defendant. 1336. In what cases defendant may apply for the order. , 1337. Application, how made. 1338. Application, to whom made. 1339. Order, when granted and what to contain. 1340. Examination in absence of district attorney. 1341. If facts disproved, examination not to proceed. 1342. Attendance of witness, how enforced. 1343. Testimony, how taken and authenticated. 134"4". Deposition to be transmitted to clerk. 1345. When may be read in evidence. Objections, etc. 1346. Deposition of witness imprisoned In another county. Witnesses examined conditionally for the defendant. 1335. When a defendant has been held to answer a charge for a public offense, he may, either before or after an indict- ment or information, have witnesses examined conditionally, on his behalf, as prescribed in this chapter, and not otherwise. [Amendment, approved April 9, 1880; amendments 1880, p. 27. In effect April 9, 1880.] In what cases defendant may apply for the order. 1336. When a material witness for the defendant is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally. 66 Cal. 396; 82 Cal. 463. Application, how made. 1337. The application must be made upon affidavit, stating: 1. The nature of the offense charged; 2. The state of the proceedings in the action; 3. The name and residence of the witness, and that his tes- timony is material to the defense of the action; 4. That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he/ will not be able to attend the trial. 82 Cal. 463. Application, to whom made. 1338. The application may be made to the court, or to a judge thereof, and must be upon three days notice to the district attorney. [Amendment, approved March 12, 1880; amendments 1880, p. 5. In effect March 12, 1880.] 719 EXAMINATION OF WITNESSES. 1339-1346 Order, when granted and what to contain. 1339. If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and that a copy of the order be served on the district attorney, within a specified time before that fixed for the examination. Examination in absence of district attorney. 1340. The order must direct that the examination be taken before a magistrate named therein, and on proof being fur- nished to such magistrate of service upon the district attorney of a copy of the order, if no counsel appear on the part of the people, the examination must proceed. If facts disproved, examination not to proceed. 1341. If the district attorney or other counsel appear on behalf of the people, and it is shown to the satisfaction of the magistrate, by affidavit or other proof, or on the examination of, the witness, that he is not about to leave tne state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination cannot take place; otherwise it must .proceed. Attendance of witness, how enforced. 1342. The attendance of the witness may be enforced by a subpoena, issued by the magistrate before whom the examination is to be taken. Testimony, how taken and authenticated. 1343. The testimony given by the witness must be reduced to writing, and authenticated in the same manner as the tes- timony of a witness taken in support of an information. Deposition to be transmitted to clerk. 1344. The deposition taken must, by the magistrate, be sealed up and transmitted to the clerk of the court in which the action is pending or may come for trial. When may be read in evidence. Objections, etc. 1345. The deposition, or a certified copy thereof, may be read in evidence by either party on the trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sickness, or infirmity, or of his continued absence from the state. Upon reading the deposition in evidence, the same objections may be taken to a question or answer contained therein as if the witness has been examined orally in court. 75 Cal. 303; 108 Cal. 445. Deposition of witness imprisoned in another county. 1346. When a material witness for a defendant, under a criminal charge, is a prisoner in the state prison, or in the county jail of a county other than that in which the defendant is to be tried, his deposition may be taken, on behalf of the defendant, in the manner provided for in the case of a witness who is sick, and the provisions of the Penal Code, commencing with section thirteen hundred and thirty-five and ending with section thirteen hundred and forty-five, shall, so far as applicable, govern in the application for and in the taking and use of such deposition. Such deposition may be taken before any magistrate or notary public of the county in which the jail or prison is situated; or in case the witness is confined in the state prison, 1349-1353 PENAL CODE. 720 and the defendant is unable to pay for taking the deposition', before the warden or clerk of the board of directors of the state prison, whose duty it shall be to act without compensation. Every officer, before whom testimony shall be taken by virtue hereof, shall have authority to administer, and shall administer, an oath to the witness that his testimony shall be the truth, the whole truth, and nothing but the truth. [Amendment, approved April 9, 1880; amendments 1880, p. 28. In effect April 9, 1880.] ?2 Cal. 457. CHAPTER V. EXAMINATION OF WITNESSES ON COMMISSION. Sec. 1349. Examination of witness residing out of the state. 1350. When defendant may apply for an order to examine. 1351. Commission defined. 1352. Application made on affidavit. 1353. Application, to whom made. 1354. Order for commission, when granted, stay of proceedings. 1355. Interrogations, how settled and allowed. 1356. Direction as to the return of the commission. 1357. Commission, how executed. l.ViN. Returned commission, delivered to an agent. 1359. Same. 1360. When and how filed. 1361. Commission and return, open for inspection. Copies, etc. 1362. Depositions to be read in evidence. Objections. Examination of witness residing out of the state. 1349. When an issue of fact is joined upon an indictment or information, the defendant may have any material witness, residing out of the state, examined in his behalf, as prescribed in this chapter, and not otherwise. [Amendment, approved April 9, 1880; amendments 1880, p. 28. In effect April 9, 1880.J 84 Cal. 26. When defendant may apply for an order to examine. 1350. When a material witness for the defendant resides out of the state, the defendant may apply for an order that the witness be examined on a commission. Commission defined. 1351. A commission is a process issued under the seal of the court and the signature of the clerk, directed to some person designated as commissioner, authorizing him to examine the witness upon oath on interrogatories annexed thereto, to take and certify the deposition of the witness, and to return it according to the directions given with the commission. Application made on affidavit. 1352. The application must be made upon affidavit, stating: 1. The nature of the offense charged; 2. The state of the proceedings in the action, and that an issue of fact has been joined therein; 3. The name of the witness, and that his testimony la material to the defense of the action; 4. That the witness resides out of the state. Application, to whom made. 1353. The application may be made to the court, or a Judge thereof, and must be upon three days' notice to the district attorney. [Amendment, approved March 12, 1880; amendments 1880, p. 6. In effect March 12, 1880.] 721 EXAMINATION OF WITNESSES. 1354-1357 Order for commission, when granted, stay of proceedings. 1354. If the court to whom the application is made is sat- isfied of the truth of the facts stated, and that the examination of the witness is necessary to the attainment of jusice, an order must be made that a commission be issued to take his testimony; and the court may insert in the order a direction that the trial be stayed for a specified time, reasonably sufficient for the execution and return of the commission. [Amendment, approved April 9, 1880; amendments 1880, p. 28. In effect April 9, 1880.] 84 Cal. 26; 108 Cal. 11. Interrogations, how settled and allowed. 1355. When the commission is ordered, the defendant must serve upon the district attorney, without delay, a copy of the interrogatories to be annexed thereto, with two days' notice of the time at which they will be presented to the. court or judge. The district attorney may in like manner serve upon the defend- ant or his counsel cross-interrogatories, to be annexed to the commission, with the like notice. In the interrogatories either party may insert any questions pertinent to the issue. When the interrogatories and cross-interrogatories are presented to the court or judge, according to the notice given, the court or judge must modify the questions so as to conform them to the rules of evidence, and must indorse upon them his allowance and annex them to the commission. Direction as to the return of the commission. 1356. Unless the parties otherwise consent, by an indorse- ment upon the commission, the court or judge must indorse thereon .a direction as to the manner in which it must be returned, and may, in his discretion, direct that it be returned by mail or otherwise, addressed to the clerk of the court In which the action is pending, designating his name and the place where his office is kept. Commission, how executed. 1357. The commissioner, unless otherwise specially directed, may execute the commission as follows: First He must publicly administer an oath to the witness that his answers given to the interrogatories shall be the truth, the whole truth, and nothing but the truth. Second He must cause the examination of the witness to be reduced to writing and subscribed by him. Third He must write the answers of the witness as near as possible in the language in which he gives them, and read to him each answer as it is taken down, and correct or add to it until it conforms to what he declares is the truth. Fourth If the witness decline answering a question, that fact, with the reason assigned by him for declining, must be stated. Fifth If any papers or documents are produced before him and proved by the witness, they, or copies of them, must be an- nexed to the deposition subscribed by the witness and certified by the commissioner. Sixth The commissioner must subscribe his name to each sheet of the deposition, and annex the deposition, with the pa- pers and documents proved by the witness, or copies thereof, to the commission, and must close it up under seal, and address it as directed by the indorsement thereon. CRIMES--46 1358-1362 PENAL CODE. 722 Seventh If there be a direction on the commission to return it "by mail, the commissioner must immediately deposit it in the nearest post office. If any other direction be made by the written consent of the parties, or by the court or judge, on the com- mission, as to its return, the commissioner must comply with the direction. A copy of this section must be annexed to the commission. [Amendment, approved March 30, 1874; amendments 1873-4, p. 451. In effect July 1, 1874.] Returned commission, delivered to an agent. 1358. If the commission and return be delivered by the com- missioner to an agent, he must deliver the same to the clerk to whom it is directed, or to the judge of the court in which the action is pending, by whom it may be received and opened, upon the agent making affidavit that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it. [Amendment, approved, April 9, 1880; amendments 1880, p. 28. In effect April 9, 1880.] Same. 1359. If the agent is dead, or from sickness or other casualty unable personally to deliver the commission and return, as prescribed in the last section, it may be received by the clerk or judge from any other person, upon his making an affidavit that he received it from the agent; that the agent is dead, or from sickness or other casualty unable to deliver it; that it has not been opened or altered since the person making the affidavit received it; and that he believes it has not been opened or altered since it came from the hands of the commissioner. When and how filed. 1360. The clerk or judge receiving and opening the com- mission and return must immediately file it. with the affidavit mentioned in the last two sections, in the office of the clerk of the court in which the indictment is pending. If the com- mission and return is transmitted by mail, the clerk to whom it is addressed must receive it from the post office, and open and file it in his office, where it must remain, unless otherwise directed by the court or judge. Commission and return, open for inspection. Copies, etc. 1361. The commission and return must at all times be open to the inspection of the parties, who must be furnished by the clerk with copies of the same or of any part thereof, on pay- ment of his fees. Depositions to be read in evidence. Objections. 1362. The depositions taken under the commission may be read in evidence by either party on the trial, upon it being shown that the witness is unable to attend from any cause whatever; and the same objections may be taken to a question in the interrogatories or to an answer in the ueposition, as if the witness had been examined orally in court. 723 INQUIRY INTO INSANITY. 1367-1370 CHAPTER VI. INQUIRY INTO THE INSANITY OF THE DEFENDANT BEFORE TRIAL OR AFTER CONVICTION. Sec. 1367. Insane person cannot ho tried, or punished. 1368. Doubts as to sanity of the defendant, how determined. Stay of proceedings on. 1 ."(>!). Trial of the question of insanity. Charge of the court. 1370. Verdict of the jury as to sanity, and proceedings thereon. 1371. If defendant is committed, it exonerates his bail, etc. 1372. Defendant detained in asylum until he becomes sane. 1373. Expense of sending, etc., defendant to asylum. Insane person cannot be tried, or punished. 1367. A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane. 105 Cal. 340; 106 Cal. 56; 126 Cal 616; 126 Cal. 427; 129 Cal. 331. Doubts as to sanity of the defendant, how determined. Stay of proceedings on. 1368. When an action is called for trial, or at any time during the trial, or when the defendant is brought up for judgment on conviction, if a doubt arise as to the sanity of the defendant, the court must order the question as to his sanity to be sub- mitted to a jury; and the trial or the pronouncing of the judgment must be suspended until the question is determined by their verdict, and the trial jury may be discharged or retained, according to the discretion of the court, during the pendency of the issue of insanity. [Amendment, approved April 9, 1880; amendments 1880, p. 28. In effect April 9, 1880.] 67 Cal. 380; 85 Cal. 301; 106 Cal 51; 116 Cal. 441; 126 Cal. 616; 126 Cal. 426; 132 Cal. 305. Trial of the question of insanity. Charge of the court. 1369. The trial of the question of insanity must proceed In the following order: 1. The counsel for the defendant must open the case and offer evidence in support of the allegation of insanity; 2. The counsel for the people may then open their case and offer evidence in support thereof; 3. The parties may then respectively offer rebutting tes- timony only, unless the court, for good reason in furtherance of justice, permit them to offer evidence upon their original cause; 4. When the evidence is concluded, unless the case is sub- mitted to the jury on either or both sides without argument, the counsel for the people must commence, and the defendant or his counsel may conclude the argument to the jury; 5. If the indictment be for an offense punishable with death, two counsel on each side may argue the cause to the jury, in which case they must do so alternately. In other cases the argument may be restricted to one counsel on each side; 6. The court must then charge the jury, stating to them all matters of law necessary for their information in giving their verdict. 105 Cal. 340; 126 Cal. 616; 126 Cal. 426. Verdict of the jury as to sanity, and proceedings thereon. 1370. If the jury find the defendant sane, the trial must pro- ceed, or judgment be pronounced, as the case may be. If the jury find the defendant insane, the trial or judgment must be 1371-1378 PENAL CODE. 724 suspended until he becomes sane, and the court must order that he be in the meantime committed by the sheriff to the state insane asylum, and that upon his becoming sane he be redelivered to the sheriff. [Amendment, approved April 9, 1880; amend- ments 1880, p. 29. In effect April 9, 1880.] 126 Cal. 617; 129 Gal. 331. If defendant is committed, it exonerates his bail, etc. 1371. The commitment of the defendant, as mentioned in the last section, exonerates his bail, or entitles a person, authorized to receive the property of the defendant, to a return of any money he may have deposited instead of bail. Defendant detained in asylum until he becomes sane. 1372. If the defendant is received into the asylum, he must be detained there until he becomes sane. When he becomes sane, the superintendent must give notice of that fact to the sheriff and district attorney of the county. The sheriff must thereupon, without delay, bring the defendant from the asylum, and place him in proper custody until he is brought to trial or judgment, as the case may be, or is legally discharged. 129 Cal. 331. Expense of sending, etc., defendant to asylum. 1373. The expenses of sending the defendant to the asylum, of keeping him there, and of bringing him back, are in the first instance chargeable to the county in which the indictment was found, or information filed; but the county may recover them from the estate of the defendant, if he have any, or from a relative, town, city, or county bound to provide for and main- tain him elsewhere. [Amendment, approved April 9, 1880; amendments 1880, 29. In effect April 9, 1880,] 126 Cal. 616; 129 Cal. 331. CHAPTER VII. COMPROMISING CERTAIN PUBLIC OFFENSES BY LEAVE OF THE COURT. Sec. 1377. Compromise of offenses for which civil action may be had. 1378. Compromise by permission of the court bars another pros- ecution. 1379. No public offense to be compromised except. Compromise of offenses for which civil action may be had. 1377. When a defendant is held to answer on a charge of misdemeanor, for which the person injured by the act con- stituting the offense has a remedy by a civil action, the offense may be compromised as provided in the next section, except when it is committed: 1. By or upon an officer of justice, while in the execution of the duties of his office; 2. Riotously; 3. With an intent to commit, a felony. Compromise by permission of the court bars another pros- ecution. 1378. If the party injured appears before the court to which the depositions are required to be returned, at any time before trial, and acknowledges that he has received satisfaction for the 725 COMPROMISING OFFENSES DISMISSING ACTION. 1379-1384 Injury, the court may, in its discretion, on payment Ot the costs incurred, order all proceedings to be stayed upon the pros- ecution, and the defendant to be discharged therefrom; but in such case the reasons for the order must be set forth therein, and entered on the minutes. The order is a bar to another pros- ecution for the same offense. No public offense to be compromised except. 1379. No public offense can be compromised, nor can any pro- ceeding or prosecution for the punishment thereof upon a com- promise be stayed, except as provided in this chapter. CHAPTER VIII. DISMISSAL OF THE ACTION BEFORE OR AFTER INDICT- MENT FOR WANT OF PROSECUTION OR OTHERWISE. Sec. 13S2. When action may be dismissed. 1383. Continuance and discharge from custody. l.'-iS4. If action dismissed, defendant to be discharged, etc. 1385. Dismissed on motion of court or application of district attorney. 1386. Nolle prosequi abolished. 1M. V T. Dismissal a bar in misdemeanor, but not in felony, 1388. Probationary treatment of juvenile delinquents. 1389. Prohibiting minors to visit houses of 111 fame. When action may be dismissed. 1382. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: 1. When a person has been held to answer for a public offense, if an indictment is not found or an information filed against him, within thirty days thereafter. 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment, or filing of the information. [Amendment approved April 9, 1880; amendments 1880, 29. In effect April 9, 1880.] 54 Cal. 101; 54 Cal. 413; 63 Cal. 346; 65 Cal. 218; 69 Cal. 540; 77 Cal. 447; 82 Cal. 109; 85 Cal. 516; 91 Cal. 29; 99 Cal. 101; 100 Cal. 3; 113 Cal. 284; 116 Cal. 152; 127 Cal. 372; 130 Cal. 162; 133 Cal. 351. Continuance and discharqe from custody. 1383. If the defendant is not charged or tried, as provided in the last section, and sufficient reason therefor is shown, the court may order the action to be continued from time to time, and in the meantime may discharge the defendant from cus- tody on his own undertaking of bail for his appearance to answer the charge at the time to which the action is continued. [Amendment approved April 9, 1880; amendments 1880, 29. In effect April 9, 1880.] 54 Cal. 413. If action dismissed, defendant to be discharged, etc. 1384. If the court directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom; or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him. 54 Cal. 414. 1385-1388 PENAL CODE. 726 Dismissed on motion of court or application of district attorney. 1385. The court may, either of its own motion or upon the application of the district attorney, and in furtherance of Jus- tice, order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered up"on the minutes. 48 Cal. 253; 64 Cal. 263; 71 Cal. 546; 85 Cal. 680; 127 Cal. 64; 130 Cal. 75; 132 Cal. 16. Nolle proscqui abolished. 1386. The entry of a nolle prosequi is abolished, and neither the attorney general nor the district attorney can discontinue or abandon a prosecution for a public offense, except as provided in the last section. 85 Cal. 590. Dismissal a bar in misdemeanor, but not in felony. 1387. An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony. 48 Cal. 253; 52 Cal. 464; 64 Cal. 263; 123 Cal. 455; 127 Cal. 64; 130 Cal. 7^; 132 Cal. 16. Probationary treatment of juvenile delinquents. 1388. Final judgment may be suspended on any conviction, charge, or prosecution for misdemeanor, or felony, wherein the judgment of the court in which such proceeding is pending there is a reasonable ground to believe that such minor may be reformed, and that a commitment to prison would work manifest injury in the premises. Such suspension may be for as long a period as the circumstances of the case may seem to warrant, and subject to the following further provisions: During the period of such suspension, or of any extension thereof, the court or judge may, under such limitations as may seem advisable, commit such minor to the custody of the officers or managers of any strictly non-sectarian charitable corporation conducted for the purpose of reclaiming criminal minors. Such corporation, by its officers or managers, may accept the custody of such minor for a period of two months (to be further extended by the court or judge should it be deemed advisable), and should said minor be found incorrigible and incapable of reformation, he may be returned before the court for final judgment for his misdemeanor. Such charitable corporation shall accept custody of said minor as aforesaid upon the distinct agreement that it and its officers shall use all reasonable means to effect the reformation of such minor, and provide him with a home and instruction. No appli- cation for guardianship of such minor by any person, parent, or friend shall be entertained by any court during the period of such suspension and custody, save upon recommendation of the court before which the criminal proceedings are pending first obtained. Such court may further, in its discretion, direct the payment of the expenses of the maintenance of such minor dur- ing such period of two months, not to exceed, in the aggregate, the sum of $25 (twenty-five dollars), which sum shall include board, clothing, transportation, and all other expenses, to be paid by the county where such criminal proceeding is pending, or direct action to be instituted for the recovery thereof out of the estate of said minor, or from his parents. Such court may 727 PROCEEDINGS AGAINST CORPORATIONS. 1389-1392 also revoke such order of suspension at any time. [Approved March 15, 1883. Stats. 1883, 377.1 71 Cal. 628; 93 Cal. 640; 113 Cal. 588. Prohibiting minors to visit houses of ill fame. 1389. That no minors in the employ of any telephone com- pany, special delivery company, or association, or any other corporation, or person or persons, engaged in the delivery of packages, letters, notes, messages, or other matter, shall be assigned by such corporations, or person or persons, to hire such minors to the keepers of houses, variety theatres, or other places of questionable repute, or to other persons connected with such places of questionable repute, nor to permit them to enter such places of illegal or questionable calling; that this law shall apply alike to managers, superintendents, and agents of such corporations, and to be enforced against them. [New section approved March 15, 1887. Stats. 1887, 119. In effect March 15, 1887. Violation is by sec. 2, of act a misdemeanor.] CHAPTER IX. PROCEEDINGS AGAINST CORPORATIONS. Sec. 1390. Summons upon information against corporation. 1391. Form of summons. 1392. When and how served. 1393. Examination of the charge. 1394. Certificate of magistrate and return of depositions. 1395. Grand jury to investigate if there is sufficient cause. 1396. Appearance and plea. 1397. Fine on conviction, how collected. Summons upon information against corporation. 1390. Upon an information or presentment against a cor- poration, the magistrate must issue a summons, signed by him, with his name of office, requiring the corporation to appear before him, at a specified time and place, to answer the charge, the time to be not less than ten days after the issuing of the summons. Form of summons. 1391. The summons must be substantially in the following form: County of [as the case may be.] The people of the state of California to the [naming the cor- poration] : You are hereby summoned to appear before me at [naming the place], on [specifying the day and hour], to answer a charge made against you upon the information of A B [or the present- ment of the grand jury of the county, as the case may be], for [designating the offense generally]. Dated at the city [or township] of , this day of , eighteen . G H, justice of the peace, [or as the case may be]. When and how served. 1392. The summons must be served at least five days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president or other head of the corporation, or to the secretary, cashier, or managing agent thereof. 1393-1401 PENAL CODE. 728 Examination of the charge. 1393. At the appointed time in the summons, the magistrate must proceed to investigate the charge in the same manner as In the case of a natural person, so far as these proceedings are applicable. .Certificate of magistrate and return of depositions. 1394. After hearing the proofs, the magistrate must certify upon the depositions, either that there is or is not sufficient cause to believe the corporation guilty of the offense charged, and must return the deposition and certificate, as prescribed In section 883. Grand jury to investigate if there is sufficient cause. 1395. If the magistrate returns a certificate that there Is sufficient cause to believe the corporation guilty of tne offense charged, the grand jury may proceed, or the district attorney file an information thereon, as in case of a natural person held to answer. [Amendment approved April 9, 1880; amendments 1880, 29. In effect April 9, 1880.] Appearance and plea. 1396. If an indictment is found, or information filed, the cor- poration may appear by counsel to answer the same. If it does not thus appear, a plea 'of not guilty must be centered, and the same proceedings had thereon as in other cases. [Amendment approved April 9, 1880; amendments 1880, 29. In effect April 9, 1880.] Fine on conviction, how collected. 1397. When a fine is imposed upon a corporation on con- viction, it may be collected by virtue of the order imposing It, by the sheriff of the county, out of its real and personal prop- erty, in the same manner as upon an execution in a civil action. CHAPTER X. ENTITLING AFFIDAVITS. Sec. 1401. Affidavits defectively entitled, valid. Affidavits defectively entitled, valid. 1401. It is not necessary to entitle an affidavit or deposition in the action, whether taken before or after indictment or information, or upon an appeal; but if made without a title, or with an erroneous title, it is as valid and effectual for every purpose as if it were duly entitled, if it intelligibly refer to the proceeding, indictment, information, or appeal in which it is made. [Amendment approved April 9, 1880; amendments 1880, 30. In effect April 9, 1880.] 729 ERRORS DISPOSAL OF STOLEN PROPERTY. 1404-1410 CHAPTER XI. ERRORS AND MISTAKES IN PLEADINGS AND OTHER PRO- CEEDINGS. Sec. 1404. When not material. When not material. 1404. Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right. 49 Cal. 390; 53 Cal. 4S4; 57 Gal. 90; 67 Cal. 98: 59 Cal. 3S4; 62 Cal. 520; 64 Cal. 213; 64 Cal. 372; 64 Cal. 426; 67 Cal. 56: 93 Cal. 5S3; 94 Cal. 119; 96 Cal. 319; 102 Cal. 242; 115 Cal. 306; 116 Cal. 198; 120 Cal. 663; 133 Cal. 124. CHAPTER XII. DISPOSAL OF PROPERTY STOLEN OR EMBEZZLED. Sec. 1407. Peace officer must hold property subject to the order of magistrate. 1408. Order for Its delivery to owner. 1409. Magistrate innst deliver It to owner. 1410. Court In which trial Is had may order Its delivery. 1411. Delivered to county treasurer if not claimed In six months. 1412. Receipt for money, etc., taken from person arrested. 1413. Record of property alleged to be stolen. Peace officer must hold property subject to the order of magistrate. 1407. When property, alleged to have been stolen or em- bezzled, comes into the custody of a peace officer, he must hold it subject to the order of the magistrate authorized by the next section to direct the disposal thereof. Order for its delivery to owner. 1408. On satisfactory proof of the ownership of the property, the magistrate before whom the information is laid, or who examines the charge against the person accused of stealing or embezzling it, must order it to be delivered to the owner, on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property. Magistrate must deliver it to owner. 1409. If property stolen or embezzled comes into custody of the magistrate, it must be delivered to the owner on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate. Court in which trial is had may order its delivery. 1410. If the property stolen or embezzled has not been delivered to the owner, the court before which a trial is had for stealing or embezzling it may, on proof of his title, order it to be restored to the owner. 1411-1418 PENAL CODE. 730 Delivered to county treasurer if not claimed in six months. 1411. If the property stolen or embezzled is not claimed by the owner before the expiration of six months from the con- viction of a person for stealing or embezzling it, the magistrate or other officer having it in custody must, on the payment of the necessary expenses incurred in its preservation, deliver it to the county treasurer, by whom it must be sold and the proceeds paid into the county treasury. Receipt for money, etc., taken from person arrested. 1412. When money or other property is taken from a defend- ant, arrested upon a charge of a public offense, tue officer taking it must at the time give duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken; one of which receipts he must deliver to the defendant and the other of which he must forthwith file with the clerk of the court to which the depositions and statement are to be sent. When such property is taken by a police officer of any incorporated city or town, he must deliver one of the receipts to the defend- ant, and one, with the property, at once to the clerk or other person in charge of the police office in such city or town. Record of property alleged to be stolen. 1413. The clerk in, or person having charge of, the police office in any incorporated city or town, must enter in a suitable book a description of every article of property alleged to be stolen or embezzled, and brought into the office or taken rrom the person of a prisoner, and must attach a number to each article, and make a corresponding entry thereof. CHAPTER XIII. REPRIEVES, COMMUTATIONS AND PARDONS. Sec. 1417. Governor may grant reprieves, commutations, and pardons. 1418. His power in respect to convictions for treason. 1419. To communicate to the legislature reprieves, commutations, and pardons. 1420. Report of case, how and from whom required. 1421. Notice to district attorney of application for pardon. 1422. Publication of notice. 1423. When two preceding sections are not applicable. Governor may grant reprieves, commutations, and pardons. 1417. The governor has power to grant reprieves, commu- tations, and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to the regulations provided in this chapter. 68 Cal. 180. His power in respect to convictions for treason. 1418. He may suspend the execution of the sentence, upon a conviction for treason, until the case can be reported to the legislature at its next meeting, when the legislature may either pardon, direct the execution of the sentence, or grant a further reprieve; provided, that neither the governor nor the legislature shall have power to grant pardons or commutations of sen- tence in any case where the convict has been twice convicted of felony, after the first day of January, eighteen hundred and 731 REPRIEVES, COMMUTATIONS AND PARDONS. 1419-1423 eighty, unless upon the written recommendation of a majority of the judges of the Supreme Court. [Amendment approved February 18, 1880; amendments 1880, 2. In effect February 18, 1880.] 68 Cal. 180. To communicate to the legislature reprieves, commutations, and pardons. 1419. He must, at the beginning of every session, com- municate to the legislature each^case of reprieve, commutation, or pardon, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon, or reprieve, and the reasons for grant- ing the same. [Amendment approved February 18, 1880; amend- ments 1880, 3. In effect February 18, 1880.] Report of case, how and from whom required. 1420. When an application is made to the governor for a pardon, he may require the judge of the court before which the conviction was had, or the district attormey by whom the action was prosecuted, to furnish him, without delay, with a statement of the facts proved on the trial, and of any other facts having reference to the propriety of granting or refusing the pardon. 68 Cal. 180. Notice to district attorney of application for pardon. 1421. At least ten days before the governor acts upon an application for a pardon, written notice of the intention to apply therefor, signed by the person applying, must be served upon the district attorney of the county where the conviction was had, and proof, by affidavit, of the service must be presented to the governor. Publication of notice. 1422. Unless dispensed with by the governor, a copy of the notice must also be published for thirty days from the first pub- lication, in a paper in the county in which the conviction was had. When two preceding sections are not applicable. 1423. The provisions of the two preceding sections are not applicable: 1. When there is imminent danger of the death of the person convicted or imprisoned; 2. W r hen the term of imprisonment of the applicant is within ten days of its expiration. 1426-1427 PENAL CODE. 732 TITLE XI. OP PROCEEDINGS IN JUSTICES' AND POLICE COURTS, AND APPEALS TO SUPERIOR COURTS. Chapter I. Proceedings in justices' and police courts, sections 1426-61. II, Appeals to superior courts, sections 1466-70. CHAPTER I. PROCEEDINGS IN JUSTICES' AND POLICE COURTS. Bee. 142(5. Proceedings must be commeueed by complaint. 1427. When warrant of arrest must Issue. Form of warrant. 1428. Minutes, how kept. 1429. The plea, and how put In. 1430. Issue, how tried. 1431. Change of venue, when granted. 1432. Proceedings on change of venue. 1433. Postponement of the trial. 1434. Defendant to be present. 1435. Jury trial, how waived. 1436. Challenges. 1437. Oath of jurors. 1438. Trial, how conducted. 1439. Court to decide questions of law, but not of fact. 1440. Jury may decide in court, or retire. 1441. Verdict of jury, how delivered and entered. 1442. Verdict, when several defendants are tried together. 1443. Jury, when to be discharged without a verdict. 1444. If discharged, defendant may be tried again. 1445. Proceedings on plea of guilty, or on conviction. 1446. Judgment of, line may direct imprisonment. 1447. Defendant, on acquittal, to be discharged. Costs. 1448. Judgment against prosecutor for costs. 1449. Judgment, when to be rendered. 1450. Motion for a new trial, or in arrest of judgment. 1451. New trial, grounds of. 1452. Grounds of motion in arrest of judgment. 1453. Judgment to be entered in the minutes. 1454. Discharge of defendant on judgment of acquittal or fine only. 1455. Judgment of imprisonment, how executed. 1456. Judgment of imprisonment until fine is paid, how executed. 1457. Fines, disposition of. 1458. Defendant may be; admitted to ball. 1459. Subpoenas. 1460. Entitling affidavits. 1461. "Police courts" defined. Proceedings must be commenced by complaint. 1426. All proceedings and actions before a justices' or police court, for a public offense of which such courts have jurisdiction, must be commenced by complaint under oath, setting forth the offense charged, with such particulars of time, place, person, and property as to enable the defendant to understand dis- tinctly the character of the offense complained of, and to answer the complaint. 64 Cal. 409: 65 Cal. 228: 60 Cal. 105; 65 Cal. 615; 106 Cal. 407; 109 Cal. 460. When warrant of arrest must issue. Form of warrant. 1427. If the justice of the peace, or police justice, is satisfied therefrom that the offense complained of has been committed, he must issue a warrant of arrest, which must be substantially in the following form: 733 PROCEEDINGS IN JUSTICE'S COURTS. 1428-1431 County of The people of the state of California to any sheriff, constable, marshal, or policeman in this state: Complaint upon oath having been this day made before me , [Justice of the peace or police justice, as the case may be] by C D, that the offense of [designating it generally] has been committed, and accusing E F thereof; you are therefore commanded forthwith to arrest the above named E F and bring him before me forthwith, at [naming the place]. Witness my hand and seal at , this day of , A. D. . A B. Minutes, how kept. 1428. A docket must be kept by the Justice of the peace or police justice, or by the clerk of the courts held by them, if" there is one, in which must be entered each action and the proceedings of the court therein. Sfe CaJ. 228; 94 Col. 499. The plea, and how put in. 1429. The defendant may make the same plea as upon an indictment, as provided in section ten hundred and sixteen. His plea must be oral, and entered in the minutes. If r.he defend- ant plead guilty, the court may, before entering such plea or pronouncing judgment, examine witnesses to ascertain the grav- ity of the offense committed; and if it appear to the court that a higher offense has been committed than the offense charged in the complaint, the court may order the defendant to be com- mitted or admitted to bail, to answer any indictment which may be found against him by the grand jury, or any information which may be filed by the district attorney. [Amendment ap- proved April 9, 1880; amendments 1880, 30. In effect April 9, 1880.] 60 Cal. 105. Issue, how tried. 1430. Upon a plea other than a plea of guilty, if the parties waive a trial .by jury, and an adjournment or change of venue is not granted, the court must proceed to try the case. [Amend- ment approved February 25, 1880; amendments 1880, 5. In effect February 25, 1880.] 92 Cal. 576. Change of venue, when granted. 1431. If the action or proceeding is in a justice's court, a change of the place of trial may be had at any time before the trial commences: 1. When it appears from the affidavit of the defendant that he has reason to believe, and does believe, that he cannot have a fair and impartial trial before the justice about to try the case, by reason of the prejudice or bias of such justice, the cause must be transferred to another justice of the same or an adjoin- ing township; 2. When it appears from affidavits that the defendant cannot have a fair and impartial trial, by reason of the prejudice of the citizens of the township, the cause must be transferred to a justice of a township where the same prejudice does not exist. 85 Cal. 602; 119 Cal. 402. 1432-1440 PENAL CODE. 734 Proceedings on change of venue. 1432. When a change of the place of trial is ordered, the justice must transmit to the justice before whom the trial \z to be had all the original papers in the cause, with a certified copy of the minutes of his proceedings; and upon receipt thereof, the justice to whom they are delivered must proceed with the trial in the same manner as if the proceeding or action had been originally commenced in his court. Postponement of the trial. 1433. Before the commencement of a trial in any of the courts mentioned in this chapter, either party may, upon good cause shown, have a reasonable postponement thereof. 66 Cal. 396. Defendant to be present. 1434. The defendant must be personally present before the trial can proceed. Jury trial, how waived. 1435. A trial by jury may be waived by the consent of both parties expressed in open court and entered in the docket. The formation of the jury is provided for in chapter one, title three, part one, of the Code of Civil Procedure. [Amendment approved February 25, 1880; amendments 1880, 5. In effect February 25, 1880.] 92 Cal. 576. Challenges. 1436. The same challenges may be taken by either party to the panel of jurors, or to any individual juror, as on the trial of an indictment for a misdemeanor; but the challenge must in all cases be tried by the court. Oath of jurors. 1437. The court must administer to the jury the following oath: "You do swear that you will well and truly try this issue between the people of the State of California and A B, the defendant, and a true verdict render according to the evidence." Trial, how conducted. 1438. After the jury are sworn, they must sit together and hear the proofs and allegations of the parties, which must be delivered in public and in the presence of the defendant. Court to decide questions of law, but not of fact. 1439. The court must decide all questions of law which may arise in the course of the trial, but can give no charge with respect to matters of fact. Jury may decide in court, or retire. 1440. After hearing the proofs and allegations, the jury may decide in court, or may retire for consideration. If they do not immediately agree, an officer must be sworn to the following effect: "You do swear that you will keep this jury together in some quiet and convenient place; that you will not permit any person to speak to them, nor speak to them yourself, unless oy order of the court, or to ask them whether they have agreed upon a verdict; and that you will return them into court when they have EG agreed, or when ordered by the court." 735 PROCEEDINGS IN JUSTICE'S COURTS. 1441-1449 Verdict of jury, how delivered and entered. 1441. The verdict of the jury must in all cases be general. When the jury have agreed on their verdict, they must deliver It publicly to the court, who must enter, or cause it to be entered, in the minutes. Verdict, when several defendants are tried together. 1442. When several defendants are tried together, if the Jury, cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judg- ment must be entered accordingly, and the case as to the rest may be tried by another jury. Jury, when to be discharged without a verdict. 1443. The jury cannot be discharged after the cause is sub- mitted to them, until they have agreed upon and rendered their verdict, unless for good cause the court sooner discharges them. If discharged, defendant may be tried again. 1444. If the jury is discharged, as provided in the last sec- tion, the court may proceed again to the trial, in the same manner as upon the first trial, and so on, until a verdict is ren- dered. Proceedings on plea of guilty, or on conviction. 1445. When the defendant pleads guilty, or is convicted, either by the court, or by a jury, the court must render judg- ment thereon of fine or imprisonment, or both, as the case may be. [Amendment approved March 30, 1874; amendments 1873-4, 453. In effect July 1, 1874.] 60 Cal. 4X5. Judgment of fine may direct imprisonment. 1446. A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, in the proportion of one day's imprisonment for every dollar of the fine. [Amendment approved March 7, 1874; amendments 1873-4, 455. In effect in 60 days.] 60 Cal. 434; 63 Cal. 300; 65 Cal. 156; 73 Cal. 495; 80 Cal. 203; 82 Cal 455; 84 Cal. 166; 85 Cal. 38; 88 Cal. 626; 89 Cal. 473; % Cal. 364; 97 Cal. 528. Defendant, on acquittal, to be discharged. Costs. 1447. When the defendant is acquitted, either by the court or by the jury, he must be immediately discharged; and if the court certify in the minutes that the prosecution was malicious or without probable cause, it may order the prosecutor to pay the costs of the action, or to give satisfactory security by a written undertaking, with one or more sureties, to pay the same within thirty days after the trial. Judgment against prosecutor for costs. 1448. If the prosecutor does not pay the costs, or give security therefor, the court may enter judgment against him for the amount thereof, which may be enforced in all respects in the same manner as a judgment rendered in a civil action. Judgment, when to be rendered. 1449. After a plea or verdict of guilty, or after a verdict against the defendant, on a plea of a former conviction or acquittal, the court must appoint a time for rendering judgment, 1450-1455 PENAL CODE. 736 which must not be more than two days nor less than six hours after the verdict is rendered, unless the defendant waive the postponement. If postponed, the court may hold the defendant to bail to appear for judgment. [Amendment approved March 30, 1874; amendments 1873-4, 454. In effect July 1, 1874.] 62 Cal. 633; 63 Cal. 491. Motion for a new trial, or in arrest of judgment. 1450. At any time before judgment, defendant may move for a new trial or in arrest of judgment. New trial, grounds of. 1451. A new trial may be granted in the following cases: 1. When the trial has been had in the absence of the defend- ant, unless he voluntarily absent himself, with full knowledge that a trial is being had; 2. When the jury has received any evidence out of court; 3. When the jury has separated without leave of the court, after having retired to deliberate upon their verdict, or been guilty of any misconduct tending to prevent a fair and due consideration of the case; 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors; 5. When there has been error in the decision of the court, given on any question of law arising during the course of the trial; 6. When the verdict is contrary to law or, evidence; 7. When new evidence is discovered material to the defend- ant, and which he could not, with reasonable diligence, have discovered and produced at the trial; but when a motion for a new trial is made upon this ground, the defendant must produce at the hearing the affidavits of the witnesses by whom such newly discovered evidence is expected to be given. Grounds of motion in arrest of judgment. 1452. The motion in arrest 'of judgment may be founded on any substantial defect in the complaint, and the effect of an arrest of judgment is to place the defendant in the same situation in which he was before the trial was had. Judgment to be entered in the minutes. 1453. If the judgment is not arrested, or a new trial granted, judgment must be pronounced at the time appointed and entered in the minutes of the court. Discharge of defendant on judgment of acquittal or fine only. 1454. If judgment of acquittal is given, or judgment imposing a fine only, without imprisonment for non-payment, and the defendant is not detained for any other legal cause, he must be discharged as soon as the judgment is given. Judgment of imprisonment, how executed. 1455. When a judgment of imprisonment is entered, a certified copy thereof must be delivered to the sheriff, marshal, or other officer, which is a sufficient warrant for its execution. 737 PROCEEDINGS APPEALS. 1456-1466 Judgment of imprisonment until fine is paid, how executed. 1456. When a judgment is entered imposing a fine, or order- ing the defendant to be imprisoned until the fine is paid, he must be held in custody during the time specified in the judg- ment, unless the fine is sooner paid. 54 Cal. 206; 64 Cal. 438; 82 Cal. 455. Fines, disposition of. 1457. Upon payment of the fine, the officer must discharge the defendant, if he is not detained for any other legal cause, and pay over the fine within ten days to the county or city treasurer, according as the offense is prosecuted for the violation of a state law or a city ordinance, whether in the justice's court or police court; provided, that all forfeitures and fines collected for the violation of any city ordinance, whether in the police court or justice's court, shall be paid over to the city treasurer of the city in which such ordinance is in force. If a fine Is imposed, and paid before commitment, it must be paid over as prescribed in this section. [In effect Feb. 28, 1901; Stats. 1901, p. 88.] 65 Cal. 478; 88 Cal. 411. Defendant may be admitted to bail. 1458. The defendant, at any time after his arrest, and before conviction, may be admitted to bail. The provisions of this code relative to bail are applicable to bail in justices' or police courts. Subpoenas. 1459. The justice or judge of either of the courts mentioned in this chapter may issue subpoenas for witnesses, as provided in section 1326, and punish disobedience thereof, as provided in section 1331. Entitling affidavits. 1460. The provisions of section 1401, in respect to entitling affidavits, are applicable to proceedings in the courts men- tioned in this chapter. "Police courts" defined. 1461. The term "police courts," as used in this and the suc- ceeding chapter, includes police judges' courts, police courts, and all courts held by mayors or recorders in incorporated cities or towns. 66 Cal. 5; 88 Cal. 410 CHAPTER II. APPEALS TO SUPERIOR COURTS. Sec. 1466. Appeals, when allowed. 1467. Appeals, how taken, heard, and determined. 1468. Statement on appeal. 1469. If new trial granted, in what court had. 1470. Proceedings, if appeal Is dismissed or judgment affirmed. Appeals, when allowed. 1466. Either party may appeal to the Superior Court of the county from a judgment of a justice's or police court, in like cases and for like cause as appeals may be taken to the Supreme Court. [Amendment approved April 12, 1880; amendments 1880, 34. In effect April 12, 1880.] 66 Cal. 401; 82 Cal. 615; 92 Cal. 574. CRIMES--47 1467-1470 PENAL CODE. 738 Appeals, how taken, heard and determined. 1467. The appeal is taken, heard, and determined as pro- vided in title IX, part II of this code. 72 Cal. 16; 82 Cal. 615. -Statement on appeal. 1468. The appeal to the Superior Court from the judgment T)f a justice's or police court is heard upon a statement of the case settled by the justice or police judge, embodying such rulings of the court as are excepted to, which statement must be filed with and settled by the court within ten days after filing notice of appeal. [Amendment approved April 12, 1880; amend- ments 1880, 35. In effect April 12, 1880.] If new triaJ granted, in what court had. 1469. If a new trial is granted upon appeal, it must be had in the Superior Court. [Amendment approved April 12, 1880; amendments 1880, 35. In effect April 12th, 1880.] 72 Cal. 15; 92 Cal. 576. Proceedings, if appeal is dismissed or judgment affirmed. 1470. If the appeal is dismissed or the judgment affirmed, a copy of the order of dismissal or judgment of affirmance must be remitted to the court below, which may proceed to enforce its sentence. 54 Cal. 345; 101 Cal. 304. 739 WRIT OF HABEAS CORPUS. 1473-1474 TITLE XII. OF SPECIAL PROCEEDINGS OF A CRIMINAL NATURE. Chapter I. Of the writ of habeas corpus, sections 1473-1505. II. Of coroneps' inquests and duties of coroners sec- tions 1510-19. III. Of search-warrants, sections 1523-42. IV. Proceedings against fugitives from justice, sections 1547-58. V. Miscellaneous provisions respecting special pro- ceedings of a criminal nature, sections 1562-4. CHAPTER I. OF THE WRIT OF HABEAS CORPUS. Sec. 1473. Who may prosecute writ. 1474. Application for, how made. 1475. By whom issued, and before whom returnable 147G. Writ must be granted without delay 1477. Writ, what to contain. 1478. How served. 1479. Proceedings upon disobedience to the writ. 1480. Return, what to contain. 1481. Body must be produced, when. 1482. Hearing without production of the body. 1483. Hearing on return. 1484. Proceedings on the hearing. 1485. When court may discharge the party. 1486. When to remand party. 1487. Grounds of discharge in certain cases. 1488. Not to be discharged for defect of form in warrant. 1489. Proceeding's on defective warrant. 1490. Writ for purposes of bail. i 1491. Judge may take bail. 1492. Judge, when to remand. 1493. Person in illegal, may be committed to legal custody. 1494. Disposition of party, pending proceedings on return. 1495. Defect of form in the writ immaterial, when. 1496. Imprisonment after discharge, when permitted. 1497. Warrant may issue instead of writ, in certain cases. 1498. Warrant may include person charged with illegal detention. 1499. Warrant, how executed. 1500. Return and hearing on. 1501. Party may be discharged or remanded. 1502. Writ and process may issue at any time. 1503. By whom issued and when returnable. 1504. Where returnable. 1505. Damages for failure to issue or obey the writ. Who may prosecute writ. 1473. Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint. [Amendment approved March 30, 1874; amend- ments 1873-4, 454. In effect July 1, 1874.] Application for, how made. 1474. Application for the writ is made by petition, signed either by the party for whose relief it is intended, or by some person in his behalf, and must specify: 1. That the person in whose behalf the writ is applied for is imprisoned or restrained of his liberty, the officer or person by whom he is so confined or restrained, and the place where, naming all the parties, if they are known, or describing them, if they are not known; 1475-1480 PENAL CODE. 740 2. If the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists; 3. The petition must be verified by the oath or affirmation of the party making the application. By whom issued, and before whom returnable. 1475. The writ of habeas corpus may be granted: 1. By the Supreme Court, or any justice thereof, upon petition by or on behalf of any person restrained of his liberty in this state. When so issued it may be made returnable before the court, or any justice thereof, or before any Superior Court or any judge thereof. 2. By the Superior Courts, or a judge thereof, upon petition by or on behalf of any person restrained of his liberty in their respective counties. [Amendment approved February 18, 1880; amendments 1880, p. 4. In effect February 18, 1880.] Writ must be granted without delay. 1476. Any court or judge authorized to grant the writ, to whom a petition therefor is presented, must, if it appear that the writ ought to issue, grant the same without delay. Writ, what to contain. 1477. The writ must be directed to the person" having cus- tody of or restraining the person on whose behalf the appli- cation is made, and must command him to have the body of such person before the court or judge before whom the writ is returnable, at a time and place therein specified. How served. 1478. If the writ is directed to the sheriff or other minis- terial officer of the court out of which it issues, it must be delivered by the clerk to such officer without delay, as other writs are delivered for service. If it is directed to any other person, it must be delivered to the sheriff, and be by him served upon such person by delivering the same to him without delay. If the person to whom the writ is directed cannot be found, or refuses admittance to the officer or person serving or delivering such writ, it may be served or delivered by leaving it at the residence of the person to whom it is directed, or by affixing it to some conspicuous place on the outside either of his dwelling- house or of the place where the party is confined or under restraint. 77 Cal. 160; 126 Cal. 616. Proceedings upon disobedience to the writ. 1479. If the person to whom the writ is directed refuses, after service, to obey the same, the court or judge, upon affidavit, must issue an attachment against such person, directed to the sheriff or coroner, commanding nim forthwith to apprehend such person and bring him immediately before such court or judge; and upon being so brought, he must be committed to the jail of the county until he makes due return to such writ, or is otherwise legally discharged. Return, what to contain. 1480. The person upon whom the writ is served must state in his return, plainly and unequivocally: 1. Whether he has- or has not the party in his custody, or under his power or restraint; 741 WRIT OF HABEAS CORPUS. 1481-1484 2. If he has the party in his custody or power, or under his restraint, he must state the authority and cause of such imprisonment or restraint; 3. If the party is detained by virtue of any writ, warrant, or other written authority, a copy thereof must be annexed to the return, and the original produced and exhibited to the court or judge on the hearing of such return; 4. If the person upon whom the writ is served had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ of habeas corpus, but has transferred such custody or restraint to another, the return must state particularly to whom, at, what time and place, for what cause, and by what authority such transfer took place ; 5. The return must be signed by the person making the same, and, except when such person is a sworn public officer, and makes such return in his official capacity, it must be verified by his oath. . 71 Cal. 238. Body must be produced, when. 1481. The person to whom the writ is directed, if it Is served, must bring the body of the party in his custody or under his restraint, according to the command of the writ, except in the cases specified in the next section. Hearing without production of the body. 1482. When, from sickness or infirmity of the person directed to be produced, he cannot, without danger, be brought before the court or judge, the person in whose custody or power he is may state that fact in his return to the writ, verifying the same by affidavit. If the court or judge is satisfied of the truth of such return, and the return to the writ is otherwise suffi- cient, the court or judge may proceed to decide on such return, and to dispose of the matter as if such party had been pro- duced on the writ, or the hearing thereof may be adjourned until such party can be produced. Hearing on return. 1483. The court or judge before whom the writ is returned must, immediately after the return, proceed to hear and examine the return, and such other matters as may be properly submitted to their hearing and consideration. Proceedings on the hearing. 1484. The party brought before the court or judge, on the return of the writ, may deny or controvert any of the material facts or matters set forth in the return, or except to the suffi- ciency thereof, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. The court or judge must thereupon proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require, and have full power and authority to require and com- pel the attendance of witnesses, by process of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case. 59 Cal. 422; 92 Cal. 190; 126 Cal. 619. 1485-1489 PENAL CODE. 742 When court may discharge the party. 1485. If no legal cause is shown for such imprisonment or restraint, or for the continuation thereof, such court or judge must discharge such party from the custody or restraint under which he is held. When to remand party. 1486. The court or judge, if the time during which such party may be legally detained in custody has not expired, must remand such party, if it appears that he is detained in custody: 1. By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction; or, 2. By virtue of the final judgment or decree of any competent court of criminal jurisdiction, or of any process issued upon such judgment or decree. 49 Cal. 162. Grounds of discharge in certain cases. 1487. If it appears on the return of the writ that the prisoner is in custody by virtue of process from any court of this state, or judge or officer thereof, such prisoner may be discharged in any of the following cases, subject to the restrictions of tho last section: 1. When the jurisdiction of such court or officer has been exceeded; 2. When the imprisonment was at first lawful, yet by some act, omission, or event which has taken place afterwards, the party has become entitled to a discharge; 3. When the process is defective in some matter of substance required by law, rendering such process void; 4. When the process, though proper in form, has been issued in a case not allowed by law; 5. When the person having the custody of the prisoner is not the person allowed by law to detain him; 6. Where the process is not authorized by any order, judg- ment, or decree of any court, nor by any provision of law; 7. Where a party has been committed on a criminal charge without reasonable or probable cause. 64 Cal. 156; 82 Cal. 246. Not to be discharged for defect of form in warrant. 1488. If any person is committed to prison, or is in custody of any officer on any criminal charge, by virtue of any warrant of commitment of a justice of the peace, such person must not be discharged on the ground of any mere defect of form in the warrant of commitment. 85 Cal. 310; 92 Cal. 426. Proceedings on defective warrant. 1489. If it appears to the court or judge, by affidavit or other- wise, or upon the inspection of the process or warrant of com- mitment, and such other papers in the proceedings as may be shown to the court or judge, that the party is guilty of a criminal offense, or ought not to be discharged, such court or judge, although the charge is defective or unsubstantially set forth in such process or warrant of commitment, must cause the complainant or other necessary witnesses to be subpoenaed to attend at such time as ordered, to testify before the court or 743 WRIT OF HABEAS CORPUS. 1490-14C6 judge; and upon the examination he may discharge such prisoner, let him to bail, if the offense be bailable, or recommit him to custody, as may be just and legal. 49 Cal. 437. Writ for purposes of bail. 1490. When a person is imprisoned or detained In custody on any criminal charge, for want of bail, such person is entitled to a writ of habeas corpus for the purpose of giving bail, upon averring that fact in his petition, without alleging that he Is illegally confined. 54 Cal. 103; 92 Cal. 189. Judge may take bail. 1491. Any judge before whom a person who has been com- mitted on a criminal charge may be brought on a writ of habeas corpus, if the same is bailable, may take an undertaking of bail from such person as in other cases, and file the same in the proper court. 54 Cat. 103; 92 Cal. 1SV. Judge, when to remand. 1492. If a party brought before the court or judge on the return of the writ is not entitled to his discharge, and is not bailed, where such bail is allowable, the court or judge must remand him to custody or place him under the restraint from which he was taken, if the person under whose custody or restraint he was is legally entitled thereto. 54 Cal. 103. Person in illegal, may be committed to legal custody. 1493. In cases where any party is held under illegal restraint or custody, or any other person is entitled to the restraint or custody of such party, the judge or court may order such party to be committed to the restraint or custody of such person as is by law entitled thereto. 126 Cal. 619; 128 Cal. 31. Disposition of party, pending proceedings on return. 1494. Until judgment is given on the return, the court or judge before whom any party may be brought on such writ may commit him to the custody of the sheriff of the county, or place him in such care or under such custody as his age or cir- cumstances may require. Defect of form in the writ immaterial, when. 1495. No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appear therefrom in whose custody or nnder whose restraint the party imprisoned or restrained is, the officer or person detaining him, and the court or judge before whom he is to be brought. Imprisonment after discharge, when permitted. 1496. No person who has been discharged by the order of the court or judge upon habeas corpus can be again imprisoned, restrained, or kept in custody tor the same cause, except in the following cases: 1. If he has been discharged from custody on a criminal charge, and is afterwards committed for the same offense, by legal order or process; 1497-1504 PENAL CODE. 744 2. If, after a discharge lor defect of proof, or for any defect of the process, warrant, or commitment in a criminal case, the prisoner is again arrested on sufficient proof and committed by legal process for the same offense. 64 Cal. 156. Warrant may issue instead of writ, in certain cases. 1497. When it appears to any court, or judge, authorized by law to issue the writ of habeas corpus, that any one is illegally held in custody, confinement, or restraint, and that there is reason to believe that such person will be carried out o; the jurisdiction of the court or judge before whom the application is made, or will suffer some irreparable injury before com- pliance with the writ of habeas corpus can be enforced, such court or judge may cause a warrant to be issued, reciting the facts, and directed to the sheriff, coroner, or constable of the county, commanding such officer to take such person thus held in custody, confinement, or restraint, and forthwith bring him before such court or judge, to be dealt with according to law. Warrant may include person charged with illegal detention. 1498. The court or judge may also insert in such warrant a command for the apprehension of the person charged with such illegal detention and restraint. Warrant, how executed. 1499. The officer to whom such warrant is delivered must execute it by bringing the person therein named before the court or judge who directed the issuing of such warrant. Return and hearing on. 1500. The person alleged to have such party under illegal confinement or restraint may make return to such warrant as in case of a writ of habeas corpus, and the same may be denied, and like allegations, proofs, and trial may thereupon be had as upon a return to a writ of habeas corpus. Party may be discharged or remanded. 1501. If such party is held under illegal restraint or custody, he must be discharged; and if not, he must bo restored to the care or custody of the person entitled thereto. Writ and process may issue at any time. 1502. Any writ or process authorized by this chapter may be issued and served on any day or at any time. By whom issued and when returnable. 1503. All writs, warrants, process, and subpoenas authorized by the provisions of this chapter must be issued by the clerk- of the court, and, except subpoenas, must be sealed with the seal of such court, and served and returned forthwith, unless the court or judge shall specify a particular time for any such return. Where returnable. 1504. All such writs and process, when made returnable before a judge, must be returned before him at the county seat, and there heard and determined. [Amendment approved February 18, 1880, p. 4.] 69 Cal. 238. 745 HABEAS CORPUS CORONERS' INQUESTP. 1505-1513 Damages for failure to issue or obey the writ. 1505. If any judge, after a proper application is made, refuses to grant an order for a writ of habeas corpus, or if the officer or person to whom such writ may be directed, refuses obedience to the command thereof, he shall forfeit and pay to the person aggrieved a sum not exceeding five thousand dollars, to be recovered by action in any court of competent jurisdiction. 79 Cal. 31. CHAPTER II. OF CORONERS' INQUESTS AND DUTIES OF CORONERS. Sec. 1510. Coroner to summon Jury to Inquire Into cause of death. 1.M1. Jurors to l>e sworn. ir.1l.'. Witnesses to be summoned. 1513. Witnesses compelled to attend. 1514. Verdict of jury in writing. What to contain. 1515. Testimony in writing, and where filed. 1516. Exception. 1517. Coroner to Issue warrant, when. 1518. Form of warrant. 1519. How served. Coroner to summon jury to inquire into cause of death. 1510. When a coroner is informed that a person has been killed, or has committed suicide, or has suddenly died under such circumstances as to afford a reasonable ground to sus- pect that his death has been occasioned by the act of another by criminal means, he must go to the place where the body is, cause it to be exhumed, if it has been interred, and summon not less than nine nor more than fifteen persons, qualified by law to serve as jurors, to appear before him forthwith, at the place where the body of deceased is, to inquire into the cause of the death. Jurors to be sworn. 1511. When six or more of the jurors attend, they must be sworn by the coroner to inquire who the person was, and when, where, and by what means he came to his death, and into the circumstances attending his death; and to render a true verdict thereon, according to the evidence offered them, or arising from the inspection of the body. Witnesses to be summoned. 1512. Coroners may issue subpoenas for witnesses, returnable forthwith, or at such time and place as they may appoint, which may be served by any competent person. They must summon and examine as witnesses every person who, in their opinion, or that of any of the jury, has any knowledge of the facts, and may summon a surgeon or physician to inspect the body and give a professional opinion as to the cause of the death. Witnesses compelled to attend. 1513. A witness served with a subpoena may be compellea to attend and testify, or punished by the coroner for disobedi- ence, in like manner as upon a subpoena issued by a justice of the peace. c9 Cal. 651; 122 Cal. 638. 1514-1519 PENAL CODE. 746 Verdict of jury in writing. What to contain. 1514. After inspecting the body and hearing the testimony, the jury must render their verdict and certify the same by an inquisition in writing, signed by them, and setting forth who the person killed is, and when, where, and by what means he came to his death; and if he was killed, or his death occasioned by the act of another, by criminal means, who is guilty thereof. Testimony in writing, and where filed. 1515. The testimony of the witnesses examined before the coroner's jury must be reduced to writing by the coroner, or under his direction, and forthwith filed by him, with the inquisition, in the office of the clerk of the Superior Court of the county. [Amendment approved April 12, 1880; Amend- ments 1880, p. 35. In effect April 12, 1S80.] 59 Cal. 650. Exception. 1516. If, however, the person charged with the commission of the offense is arrested before the inquisition can be filed, the coroner must deliver the same, with the testimony taken, to the magistrate before whom such person may be brought, who must return the same, with the depositions and statement taken before him, to the office of the clerk of the Superior Court of the county. [Amendment approved April 12, 1880; Amendments 1880, p. 35. In effect April 12, 1880.J Coroner to issue warrant, when. 1517. If the jury find that the person was killed by another, under curcumstances not excusable or justifiable by law, or that his death was occasioned by the act of another by criminal means, and the party committing the act is ascertained by the inquisition, and is not in custody, the coroner must issue a warrant, signed by him, with his name of office, into one or more counties, as may be necessary for the arrest of the 'per- son charged. Form of warrant. 1518. The coroner's warrant must be in substantially the following form: County of The people of the state of California, to any sheriff, constable, marshal, or policeman in this state: An inquisition having been this day found by a coroner's jury before me, stating that A B has come to his death by the act of C D, by criminal means [or as the case may be, as found by the inquisition], you are therefore commanded forth- with to arrest the above named C D, and take him before the nearest or most accessible magistrate in this county. Given under my hand this day of , A. D. eighteen . E F, Coroner of the county of . How served. 1519. The coroner's warrant may be served in any county, and the officer serving it c.ust proceed thereon, in all respects, as upon a warrant cf arrest on an information before a magis- trate, except that when served in another county it need not b indorsed by a magistrate ot that county. 747 CORONERS' INQUESTS SEARCH WARRANTS. 1523-1524 CHAPTER III. OP SEARCH WARRANTS. Bee. 1523. Search-warrant defined. ir.i'4. Upon what ground it may Issue. 1525. It cannot be issued but upon probable cause, etc. 1526. Magistrates must examine, on oath, complainant, etc. Io27. Depositions, what to contain. 1528. When to issue warrant. 1529. Form of warrant. 1530. By whom served. 1531. Oflk-or may break open door, etc., to execute warrant. 1532. May break open door, etc., to liberate person acting In bin aid. 1533. When warrant may be served In the night. 1534. Within what time warrant must be executed. 1535. Officer to give receipt for property taken. 153(5. Property, how disposed of. 1537. Return of warrant and inventory of property taken. 1538. Copy of inventory, to whom delivered. 1539. Proceedings, if grounds of warrant are controverted. 1540. Property, when to be restored. 1541. Depositions, warrants, etc., to be returned by magistrate to county court.. 1542. Search of defendant In presence of magistrate. Search warrant defined. 1523. A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him to search for personal property, and bring it before the magistrate. ': 68 Cal. 288. * Upon what grounds it may issue. 1524. It may be issued upon either of the following grounds: 1. When the property was stolen or embezzled; in which case 'it may be taken on the warrant from any place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled, or from any person in whose possession it may be. 2. When it was used as the means of committing a felony; in which case it may be taken on the warrant from the place in which it is concealed, or from the possession of the person by whom it was used in the commission of the offense, or from any person in whose possession it may be. 3. When it is in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing it cr preventing its being discovered; in which case it may be taken on the warrant from such person, or from any place occupied by him, or under his control, or from the possession of the person to whom he may have so delivered it. 4. When the property is a cask, keg, bottle, vessel, siphon, can, case, or other package, bearing printed, branded, stamped, engraved, etched, blown, or otherwise attached or produced thereon the duly filed trademark or name of the person by whom, or in whose behalf, the search warrant is applied for, in the possession of any person except the owner thereof, with the intent to sell or traffic in the same, or refill the same with intent to defraud the owner thereof, with such intent, and without such owner's consent thereof, or unless the same shall have been purchased from the owner thereof; in which case it may be taken on the warrant from such person, or from any 1525-1530 PENAL CODE. 748 place occupied,by him, or under his control, or from the possession of the person to whom he may have delivered it. [In effect 60 days from March 9, 1899, p. 87.] It cannot be issued but upon probable cause, etc. 1525. A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched. Magistrates must examine, on oath, complainant, etc. 1526. The magistrate must, before issuing the warrant, examine on oath the complainant, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. 75 Cal. 372. Depositions, what to contain. 1527. The depositions must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist. 75 Cal. 372. When to issue warrant. 1528. If the magistrate is thereupon satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a peace officer in his county, commanding- him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate. Form of warrant. 1529. The warrant must be in substantially the following form: County of . The people of the state of California to any sheriff, constable, marshal, or policeman in the county of : Proof, by affidavit, having been this day made before me by [naming every person whose affidavit has been taken], that [stating the grounds of the application, according to section 1525, or, if the affidavit be not positive, that there is probable cause for believing that stating the ground of the application in the same manner], you are therefore commanded, in the day- time, [or at any time of the day or night, as the case may be, according to section 1533], to make immediate search on the person of C D [or in the house situated , describing it or any other place to be searched, with reasonable particularity, as the case may be] for the following property: [describing it with reasonable particularity] ; and if you find the same or any part thereof, to bring it forthwith before me at [stating the place]. Given under my hand, and dated this day of , A. D. eighteen . B F, Justice of the Peace [or as the case may be]. 68 Cal. 289. By whom served. 1530. A search warrant may in all cases be served by any of the officers mentioned in its directions, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution. 749 SEARCH WARRANTS. 1531-1538 Officer m,ay break open door, etc., to execute warrant. 1531. The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, u, after notice of his authority and purpose, he is refused admittance. May break open door, etc., to liberate person acting in his aid. 1532. He may break open any outer or inner door or window of a house, for the purpose of liberating a person who, having entered to aid him in the execution of the warrant, is detained therein, or when necessary for his own liberation. When warrant may be served in the night. 1533. The magistrate must insert a direction in the warrant that it be served in the daytime, unless the affidavits are posi- tive that the property is on the person or in the place to be searched, in which case he may insert a direction that it be served at any time Of the day or night. Within what time warrant must be executed. 1534. A search warrant must be executed and returned to the magistrate who issued it within ten days after its "date; after the expiration of this time the warrant, unless executed, is void. Officer to give receipt for property taken. 1535. When the officer takes property under the warrant, he must give a receipt for the property taken (specifying it in detail) to the person from whom it was taken by him, or in whose possession it was found; or, in the absence of any person, he must leave it in the place where he found the property. Property, how disposed of. 1536. When the property is delivered to the magistrate, he must, if it was stolen or embezzled, dispose of it as provided in sections 1408 to 1413, inclusive. If it was taken on a warrant issued on the grounds stated in the second and third subdivisions of section 1524, he must retain it in his pos- session, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in respect to which the property taken is triable. 63 Cal. 289; 75' Cal. 372. Return of warrant and inventory of property taken. 1537. The officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the property taken, made publicly or in the presence of the person from whose possession it was taken, and of the applicant for the warrant, if they are present, verified by the affidavit of the officer at the foot of the inventory, and taken before the magistrate at the time, to the following effect: "I, R S, the officer by whom this warrant was executed, do swear that the auove inventory contains a true and detailed account of all the property taken by me on the warrant." Copy of inventory, to whom delivered. 1538. The magistrate must thereupon, if required, deliver a copy of the inventory to the person from whose possession the property was taken, and to the applicant for the warrant. 1539-1547 PENAL CODE. 750 Proceedings, if grounds of warrant are controverted. 1539. If the grounds on which the warrant was issued be controverted, he must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and authenticated in the manner prescribed in section 869. Property, when to be restored. 1540. If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken. Depositions, warrants, etc., to be returned by magistrate to county court. 1541. The magistrate must annex together the depositions, the search warrant and return, and the inventory, and return them to the next term of the county court having power to Inquire into the offenses in respect to which the search war- rant was issued, at or before its opening on the first day. 75 Cal. 372. Search of defendant in presence of magistrate. 1542. When a person charged with a felony is supposed by the magistrate before whom he is brought to have on his person a dangerous weapon, or anything which may be used as evidence of the commission of the offense, the magistrate may direct him to be searched in his presence, and the weapon or other thing to be retained, subject to his order, or to the order of the court in which the defendant may be tried. 68 Cal. 288. CHAPTER IV. PROCEEDINGS AGAINST FUGITIVES FROM JUSTICE. Sec. 1547. Rewards for the apprehension of fugitives from justice. 1548. Fugitives from another state, when to be delivered up. 1549. Magistrate to issue warrant. 1550. Proceedings for the arrest and commitment of the person charged. 1551. When and for what time to be committed. 1552. His admission to bail. 1553. Magistrate must notify district attorney of the arrest. 1554. Duty of the district attorney. 1555. Person arrested, when to be discharged. 155C. Magistrate to return his proceedings to superior court. 1557. Fugitives from this state accounts. 1558. No fee to be paid to public officer procuring surrender. Rewards for the apprehension of fugitives from justice. 1547. The governor may offer a reward, not exceeding one thousand dollars, payable out of the general fund, for the apprehension: 1. Of any convict who has escaped from the state prison; or, 2. Of any person who has committed, or is charged with the commission of, an offense punishable with death. 120 Cal. 265. 751 PROCEEDINGS AGAINST FUGITIVES. 1548-1554 Fugitives from another state, when to be delivered up. 1548. A person charged in any state of the United States with treason, felony, or other crime, who flees from justice and is found in this state, must, on demand of the executiva authority of the state from which he fled, be delivered up by the governor of this state, to be removed to the state having jurisdiction of the crime. 49 Cal. 43. Magistrate to issue warrant. 1549. A magistrate may issue a warrant for the apprehension of a person so charged, who flees from justice and is found in this state. 49 Cal. 434. Proceedings for the arrest and commitment of the person charged. 1550. The proceedings for the arrest and commitment of a person charged are, in all respects, similar to those provided in this code for the arrest and commitment of a person charged with a public offense committed in this state, except that an exemplified copy of an indictment found, or other judicial proceedings had against him in the state in which he is charged to have committed the offense, may be received as evidence before the magistrate. 49 Cal. 437; 51 Cal. 285. When and for what time to be committed., 1551. If, from the examination, it appear that the accused has committed the crime alleged, the magistrate, by warrant reciting the accusation, must commit him to the proper custody in his county, for such time, to be specified in the warrant, as the magistrate may deem reasonable, to enable the arrest of the fugitive under the warrant of the executive of this state, on the requisition of the executive authority of the state in which he committed the offense, unless he gives bail as provided in the next section, or until he is legally dis- charged. His admission to bail. 1552. The magistrate may admit the person arrested to bail by an undertaking with sufficient securities, and in such sum as he deems proper, for his appearance before him at a time specified in the undertaking, and for his surrender to arrest upon the warrant of the governor of this state. Magistrate must notify district attorney of the arrest. 1553. Immediately upon the arrest of the person charged, the magistrate must give notice thereof to the district attorney of the county. Duty of the district attorney. 1554. The district attorney must immediately thereafter give notice to the executive authority of the state, or to the pros- ecuting attorney or presiding judge of the court of the city or county within the state having jurisdiction of the offense, to the end that a demand may be made for the arrest and surrender of the person charged. 1555-1564 *>ENAL CODE. 752 Person arrested, when to be discharged. 1555. The person arrested must be discharged from custody or bail, unless, before the expiration of the time designated in the warrant or undertaking, he is arrested under the war- rant of the governor of this state. Magistrate to return his proceedings to Superior Court. 1556. The magistrate must return his proceedings to the Superior Court of the county, which must thereupon inquire into the cause of the arrest and detention of the person charged, and if he is in custody, or the time of his arrest has not elapsed, it may discharge him from detention, or may order his undertaking of bail to be canceled, or may continue his detention for a longer time, or readmit him to bail, to appear and surrender himself within a time specified in the undertak- ing. [Amendment approved April 12, 1880; Amendments 1880, p. 35. In effect April 12, 1880. Fugitives from this state accounts. 1557. When the governor of this state, in the exercise of the authority conferred by section 2, article IV of the con- stitution of the United States, or by the laws of this state, demands from the executive authority of any state of the United States, or of any foreign government, the surrender to the authorities of this state of a fugitive from justice, who has been found and arrested in such state or foreign government, the accounts of the person employed by him to bring back such fugitive must be audited by the board of examiners, and paid out of the state treasury. No fee to be paid to public officer procuring surrender. 1558. No compensation, fee, or reward of any kind can be paid to or received by a public officer of this state, or other person, for a service rendered in procuring from the governor the demand mentioned in the last section, or the surrender of the fugitive, or for conveying him to this state, or detaining him therein, except as provided for in such section. CHAPTER V. MISCELLANEOUS PROVISIONS RESPECTING SPECIAL PROCEEDINGS OF A CRIMINAL NATURE. Sec. 1562. Parties to special proceedings, how designated. 1563. Entitling affidavits. 1564. Subpoenas. Parties to special proceedings, how designated. 1562. The party prosecuting a special proceeding of a crim- inal nature is designated in this code as the complainant, and the adverse party as the defendant. Entitling affidavits. 1563. The provisions of section 1401, in respect to entitling affidavits, are applicable to such proceedings. Subpoenas. 1564. The courts and magistrates before whom such pro- ceedings are prosecuted may issue subpoenas for witnesses, and punish their disobedience in the same manner as in a criminal action. 753 DISPOSITION OF FINES. 1567-1570 TITLE XIII. PROCEEDINGS FOR BRINGING PERSONS IMPRISONED IN: THE STATE PRISON, OR THE JAIL OF AN- OTHER COUNTY, BEFORE A COURT. Sec. 1567. Persons imprisoned In the state prison or the jail of mother county, how brought before a court. Persons imprisoned in the state prison or the jail of another county, how brought before a court. 1567. When it is necessary to have a person imprisoned in the state prison brought before any court, or a person impris- oned in a county jail brought before a court sitting in another county, an order for that purpose may be made by the court and executed by the sheriff of the county where it is made. ' f J ; ,82 Cal. 458; 92 Cal. 486. TITLE XIV. DISPOSITION OF FINES AND FORFEITURES'. Sec. 1570. Fines and forfeitures, how disposed of. Fines and forfeitures, how disposed of. 1570. All fines and forfeitures collected in any court must be paid to the county treasurer of the county in which the court is held; provided, that all forfeitures and fines collected in any court for the violation of any city ordinance shall be paid to the city treasurer of the city in which such ordinance is in force. [In effect February 28, 1901; Stats, p. 88.1 65 Cal. 475; 88 Cal. 411. CRIMES--48 PART III. OF THE STATE PRISON AND COUNTY JAILS. TITLE I. OP THE STATE PRISON AND THE DISCHARGE OF PRIS- ONERS THEREFROM BEFORE THEIR TERM OF SERVICE EXPIRES. Chapter I. Of the state prison, sees. 1573-87. II. Of the discharge of prisoners before the expira- tion of their term of service, sees. 1590-5. CHAPTER I. OF THE STATE PRISON. Sec. 1573. Under the charge and control of a board of directors. 1574. President pro tern of the senate, when to act as director. 1575. Compensation of directors. 1576. Board must adopt rules and regulations. 1577. Board may appoint warden and other officers. 1578. Duties of clerk and other officers. 1579. Monthly reports of officers. 1580. Board must keep accounts and report to the governor. 1581. Persons convicted of offenses against the United States. 1582. Disposition! of Insane prisoners. 1583. State prison fund. 1584. State prison fund, how disbursed. 1585. Board cannot contract debts. 1586. Compensation for transportation of convicts. 1587. Contract to be given at public letting. 1588. Prohibiting certain employment of convict labor. Under the charge and control of a board of directors. 1573. The state prison is under the charge, control, and superintendence of a board of directors, consisting of the gov- ernor, lieutenant governor, and secretary of state. 103 Cal. 225. President pro tern of the senate, when to act as director. 1574. In case of a vacancy in the office of lieutenant gov- ernor, the president pro tern, of the senate may perform the tiuties and receive the compensation provided for the lieuten- ant governor. Compensation of directors. 1575. The board of directors are to receive the sum of sev- enty-five dollars per month, each, for expenses Incurred by them; in addition to which the lieutenant governor is paid the 755 STATE PRISON AND COUNTY JAIL8. 1576-1582 sum of ten dollars per day for each day's services rendered in the performance of any duty at the prison. Board must adopt rules and regulations. 1576. The board must adopt rules and regulations for the discipline of prisoners and the government of the prison, which rules must be printed, and copies thereof furnished to every officer appointed by the board. Board may appoint warden and other officers. 1577. The board may appoint a warden, clerk, and such other officers as may be necessary for the management and safe-keeping of the prisoners. Duties of clerk and other officers. 1578. The clerk must keep a record of the transactions of the board, and he and the warden and other officers appointed, must perform such other duties as are required by the board or the rules and regulations adopted thereby. Monthly reports of officers. 1579. The warden and other officers appointed must make a monthly report to the board, which must contain a statement of business done and transactions had in their several depart- ments. Board must keep accounts and report to the governor. 1580. The board must keep correct accounts of all funds received from proceeds of convict labor, and appropriate such funds to the maintenance of the convicts and to the payment of prison expenses, and must make a full report to the gov- ernor on the first Monday of each August next before the assem- bling of the legislature, which report must contain a complete statement of the number and condition of the prisoners at the prison; the number and character of officers they have appointed, and the monthly pay received by each; the amount of expenses incurred, and for what; the amount and condition of personal property, belonging to the state, connected with the state prison; and the actual condition of the buildings and property. Persons convicted of offenses against the United States. 1581. The authorities of the state prison must receive into the prison any person convicted of an offense against the United States, and keep such person in solitary confinement or at hard labor, or in confinement with or without hard labor, as provided in the order of the court pronouncing sentence, until legally discharged, the United States supporting such convict, and paying the expenses of the execution of his sentence. Disposition of insane prisoners. 1582. When the physician, warden, and captain of the yard of the state prison, after an examination, are of opinion that any prisoner is insane, they must certify the fact under oath to the governor, who may, in his discretion, order the removal of such prisoner to the insane asylum. As soon as the authori- ties of the asylum ascertain that such person is not insane, 1583-1587 PENAL CODE. 756 they must immediately notify the warden of that fact, and there- upon the warden must cause such prisoner to be at once returned to the prison, if his term of imprisonment has not expired. State prison fund. 1583. The moneys appropriated by the legislature and the proceeds of the labor of prisoners constitute the state prison fund. State prison fund, how disbursed. 1584. The moneys in the state prison fund are applicable to the payment of the expenses of the prison, and the salaries of the directors and officers thereof. The expenses and sal- aries must be audited and allowed by a board of examiners of state prison accounts, consisting of the attorney general, treasurer, and controller; after which, upon the order of the board of directors, the controller must draw his warrant on the treasurer therefor, and the treasurer must pay the same out of such fund. Board cannot contract debts. 1585. The board of directors cannot contract any debt or incur any liability binding upon the state. Compensation for transportation of convicts. 1586. Sheriffs delivering prisoners at the state prisons must receive all expenses necessarily incurred in their transporta- tion, and also a just and reasonable compensation for their own services, the amount of the expenses and compensation in each case to be audited and allowed by the board of examiners and paid out of any moneys in the state treasury appropriated for that purpose, and no further compensation shall be received by sheriffs for such transportation or services. [Amendment approved April 9, 1880; Amendments 1880, p. 31; repealed all conflicting acts. In effect April 9, 1880.] 50 Cat. 119; 77 Cal. 595. Contract to be given at public letting. ";587. The board of directors are hereby authorized and required to contract for provisions, clothing, medicines, for- age, fuel, and other supplies for the prison, for any period of time not exceeding one year; and such contract shall be given to the lowest bidder, at a public letting thereof, if the price bid is a fair and reasonable one. and not greater than the usual market value and price. Each bid shall be accompanied by a bond, in such penal sum as said board shall determine, with good and sufficient sureties, conditioned for the faithful per- formance of the terms of such contract. Notice of the time, place, and conditions of letting of each contract shall be given, for at least four consecutive weeks, in two daily newspapers in the cities of San Francisco and Sacramento, and also four insertions in a weekly paper published in the county in which the prison is situated. If all the bids made at such letting are deemed unreasonably high, the board may, in their discretion, decline to contract, and may again advertise for proposals, and may so continue to renew the advertisement until satisfactory contracts may be had; and in the meantime the board may 757 DISCHARGE OF PRISONERS. 1588-1590 contract with any one whose offer may be regarded just and proper; but no contract thus made shall be let to run more than sixty days, or shall in any case extend beyond the pub- lic letting. No bids shall be accepted, and a contract entered into in pursuance thereof,, when such bid is higher than any other bid made at the same letting for the same article, and where a contract can be had at such lower bid. When two or more bids for the same article are equal in amount, the board may select the one which, all things considered, may by them be thought best for the interests of the state, or may divide the contract between the bidders, as in their discretion may seem proper and right; provided, no contract shall be given, or pur- chase made, where either of the board, or any of the officers of the prison, is interested. All contracts or purchases made in violation of this section shall be void. [New section approved February 24, 1874; Amendments 1873-4, p. 467; in effect in siity days.] Prohibiting certain employment of convict labor. 1588. It shall be unlawful for the state board of prison directors, or the state prison authorities at Folsom, or any other state penal institution in the state of California, to engage or employ any person confined or employed ,in any penal institution in said state, in the manufacturing, cutting, or dressing any curbing, or crosswalk material for street or sidewalk purposes, monuments, headstones, coping, posts, or steps suitable for use, or to be used in cemetery work, cut granite for building purposes, and dimension stone for cem- etery or building work, except such cut and dimension stone as may be used in state prison buildings and walls, cut stone for arches in bridges and culverts for use on state highways, county or district roads. Any person or persons violating the provisions of this act shall be deemed guilty of a misdemeanor and punished accord- ingly. .[In effect sixty -days from March 12, 1901, p. 272.] CHAPTER II. OF THE DISCHARGE OF PRISONERS BEFORE THE EX- PIRATION OF THEIR TERM OF SERVICE. Sec. 1590. Credits for good behavior, how aiid when allowed. 1591. Credits, when forfeited. 1592. Board to make rules and regulations. 1593. Board, when to report credits to governor. 1594. Further powers of the board. 159o. Recommendations for pardon reported to legislature. Credits for good behavior, how and when allowed. 1590. The board of state prison directors of this state shall require of every able-bodied convict confined in said prison as many hours of faithful labor, in each and every day during his term of imprisonment, as shall be prescribed by the rules and regulations of 'the prison, and every convict faithfully per- forming such labor, and being in all respects obedient to the rules and regulations of the prison, or if unable to work, yet faithful and obedient, shall be allowed from his term, instead and in lieu of the commutation heretofore allowed by law, 1591-1592 PENAL CODE. 758 a deduction of two months In each of the first two years, four months in each of the next two years, and five months in each of the remaining years of said term; provided, that any such convict who shall commit an assault upon his keeper, or any foreman, officer, or convict, or otherwise endanger life, or by any flagrant disregard of the rules of the prison, or any mis- demeanor whatever, shall forfeit all deductions of time earned by him for good conduct before the commission of such offense; such forfeiture, however, shall only be made by the board of directors, after due proof of the offense, and notice to the offender; nor shall such forfeiture be imposed when a party has violated any rule or rules without violence or evil intent, of which the directors shall be the sole judges. The name of no convict who attempts to escape, after the passage of this act, shall be sent by the state prison officials to the governor for the commutation herein provided; provided further, that of those prisoners entitled to their discharge at the date of the passage of this act, by virtue of the provisions hereof, not more than one shall be discharged on any one day, and the discharges shall be made in the order in which they would have occurred if this act had been passed April, eighteen hundred and sixty-four. [Amendment approved March 29, 1878; Amend- ments 1877-78, p. 124. In effect April 15, 1878.] Credits, when forfeited. 1591. The rule of commutation fixed in the preceding sec- tion is to be so applied as that any refusal to labor, a breach of the prison rules, or other misconduct, works a forfeiture of the credits of time thus earned, or such part of it as the war- den or resident director may determine, subject to confirma- tion or rejection by the board of directors, on appeal by the prisoner. Unless the board, on appeal-, at its first session thereafter, rejects the forfeiture, it is confirmed. Credits once forfeited cannot be restored except by the board, and then only wh;en circumstances gender such restoration urgently necessary. The above provisions apply to all persons now imprisoned in the state prison, and the commutation must be computed from April fourth, A. D., eighteen hundred and sixty- four. Board to make rules and regulations. 1592. The board may make such rules and regulations as may be necessary to carry into effect the provisions of this chapter, and may declare and establish a proper scale or rate of debits and credits for good conduct or misconduct, which shall accompany the rules of discipline of the prison, and, in a book to be kept for that purpose, must cause to be entered up, at the end of each month, the result of credits to which each prisoner may be entitled, and on the first day of each month announce such result to the prisoners. Every contractor employing convict labor must keep a similar record of the conduct of all prisoners employed by him, and submit the same for inspection to the board at the end of each month, who must take the same into consideration in making up their decision. 759 DISCHARGE OF PRISONERS COUNTY JAILS. 1593-1597 Board, when to report credits to governor. 1593. At the end of every month the board must report to the governor of this state the names of all prisoners whose terms of imprisonment are about to expire, by reason of the benefits of this chapter, giving in such report the terms of their sentences, the date of imprisonment, the amount of total credits to the date of such report, and the date when their service would expire by limitation of sentence. The governor, at the expiration of the term for which any prisoner has been sentenced, less the number of days allowed and credited to him, must order the release of such prisoner, by an order under his hand addressed to the warden of the prison, in such mode and form as he may deem proper, and with or without restora- tion to citizenship, according in his discretion. Further powers of the board. 1594. The board must grant and enter up in favor of such prisoners whom they may deem worthy, by reason of good con- duct and industry, during the twelve months prior to the fourth day of April, A. D. eighteen hundred and sixty-four, the credits authorized by section 1590, not exceeding thirty days, the same to be deducted from the term of their imprisonment. Recommendations for pardon reported to legislature. 1595. The board must report to the legislature, at each reg- ular session, the names of any persons confined in the state prison who, in their judgment, ought to be pardoned and set at liberty on account of good conduct or unusual terms of sen- tence, or any other cause which, in their opinion, should entitle such prisoners to a pardon. Whenever the legislature, by a majority of both houses, recommend to the governor that any or all of the persons reported be pardoned by him, he may thereupon pardon such prisoners. TITLE II. OF COUNTY JAILS. Sec. 1597. County jails, by whom kept and for what use. 1598. Rooms required in county jails. 1599. Prisoners to be classified. 1600. Prisoners committed must be actually confined. 1601. Sheriff to receive prisoners committed by courts. 1602. Sheriff answerable for safe-keeping of such prisoners. 1603. When jail of a contiguous county may be used. 1604. "Keeper of jail in contiguous county to receive prisoner*. 1605. When jail in contiguous county to cease to be used. 1606. Prisoners to, be returned to proper county. 1607. Prisoners may be removed in case of fire. 1608. Prisoners may be removed in case of pestilence. .1609. Papers! served on jailer for prisoner. 1610. Guard for jail. 1611. Sheriff to receive all persons duly committed. 1612. Prisoners on civil process, when 1 not to be received. 1613. Prisoners may be required to labor. 1614. Rules and regulations for the performance of labor. County jails, by whom kept and for what use. 1597. The common jails in the several counties of this state are kept bj the sheriffs of the counties in which they are respectively situated, and are used as follows: 1. For the detention of persons committed in order to secure their attendance as witnesses in criminal cases; 1598-1603 PENAL CODE. 760 2. For the detention of persons charged with crime and com- mitted for trial; 3. For the confinement of persons committed for contempt, or upon civil process, or by other authority of law; 4. For the confinement of persons sentenced to imprisonment therein upon a conviction for crime. 78 Cal 306. Rooms required in county jails. 1598. Each county jail must contain a sufficient number of rooms to allow all persons belonging to either one of the fol- lowing classes to be confined separately and distinctly from persons belonging to either of the other classes: 1. Persons committed on criminal process and detained for trial; 2. Persons already convicted of crime and held under .sen- tence; 3. Persons detained as witnesses or held under civil process, or under an order imposing punishment for a contempt; 4. Males separately from females. Prisoners to be classified. 1599. Persons committed on criminal process and detained for trial, persons convicted and under sentence, and persons committed upon civil process, must not be kept or put in the same room, nor shall male and female prisoners (except hus- band and wife) be kept or put in the same room. Prisoners committed must be actually confined. 1600. A prisoner committed to the county jail for trial or for examination, or upon conviction for a public offense, must be actually confined in the jail until he is legally discharged; and if he is permitted to go at large out of the jail, except by virtue of a legal order or process, it is an escape. 97 Cal. 242. Sheriff to receive prisoners committed by courts. 1601. The sheriff must receive, and keep in the county jail, any prisoner committed thereto by process or order issued under the authority of the United States, until he is discharged accord- ing to law, as if he had been committed under process issued under the authority of this state; provision being made by the United States for the support of such prisoner. 92 Cal. 422. Sheriff answerable for safe-keeping of such prisoners. 1602. A sheriff, to whose custody a prisoner is committed, as provided in the last section, is answerable for his safe- keeping in the courts of the United States, according to the laws thereof. When jail of a contiguous county may be used. 1603. When there is no jail in the county, or when the jail becomes unfit or unsafe for the confinement of prisoners, the county judge may, by a written appointment filed with the county clerk, designate the jail of a contiguous county for the confinement of the prisoners of his county, or of any of them, and may at any time modify or annul the appointment. 761 COUNTY JAILS. 1604-1610 Keeper of jail in contiguous county to receive prisoners. 1604. A copy of the appointment, certified by the county clerk, must be served on the sheriff or keeper of the jail designated, who must receive into his jail all prisoners authorized to be confined therein, pursuant to the last section, and who is respon- sible for the safe-keeping of the persons so committed, in the same manner and to the same extent as if he was sheriff of the county for whose use his jail is designated, and with respect to the persons so committed he is deemed the sheriff of the county from which they were removed. When jail in contiguous county to cease to be used. 1605. When a jail is erected in the county for the use of which the designation was made, or its jail is rendered fit and safe for the confinement of prisoners, the county judge of that county must, by a written revocation, filed with the county clerk thereof, declare that the necessity for the designation has ceased, and that it is revoked. Prisoners to be returned to proper county. 1606. The county clerk must immediately serve a copy of the revocation upon the sheriff of the county, who must there- upon remove the prisoners to the jail of the county from which the removal was had. Prisoners may be removed in case of fire. 1607. When a county jail or a building contiguous to it Is on fire, and there is reason to apprehend that the prisoners may be injured or endangered, the sheriff or jailer must remove them to a safe and convenient place, and there confine them as long as it may be necessary to avoid the danger. Prisoners may be removed in case of pestilence. 1608. When a pestilence or contagious disease breaks out in or near a jail, and the physican thereof certifies that it is liable to endanger the health of the prisoners, the county judge may, by a written appointment, designate a safe and convenient place in the county, or the jail in a contiguous county, as the place of their confinement. The appointment must be filed in the office of the county clerk, and authorize the sheriff to remove the prisoners to the place or jail designated, and there confine them until they can be safely returned to the jail from "which they were taken. Papers served on jailer for prisoner. 1609. A sheriff or jailer upon whom a paper in a judicial proceeding, directed to a prisoner in his custody, is served, must forthwith deliver it to the prisoner, with a note thereon of the time of its service. For a neglect to do so he is liable to the prisoner for all damages occasioned thereby. Guard for jail. 1610. The sheriff, when necessary, may, with the assent in writing of the county judge, or in a city, of the mayor thereof, employ a temporary guard for the protection of the county jail, or for the safe-keeping of prisoners, the expenses of which are a county charge. 1611-1614 PENAL CODE. 762 Sheriff to receive all persons duly committed. 1611. The sheriff must receive all persons committed to jail by competent authority, and provide them with necessary food, clothing, and bedding, for which he shall be allowed a reason- able compensation, to be determined by the board of super- Tisors, and, except as provided in the next section, to be paid out of the county treasury. 67 Cal. 335; 102 Cal. 430. Prisoners on civil process, when not to be received. 1612 Whenever a person is committed upon process In a civil action or proceeding, except when the people of this state are a party thereto, the sheriff is not bound to receive such person, unless security is gives on the part of the party at whose instance the process is issued, by deposit of money, to meet the expenses for him of necessary food, clothing, and bedding, or to detain such person any longer than these expenses are provided for. This section does not apply to cases where a party is committed as a punishment for dis- obedience to the mandates, process, writs, or orders of court. Prisoners may be required to labor. 1613. Persons confined in the county jail under a judgment of imprisonment rendered in a criminal action or proceeding, may be required by an order of the board of supervisors to per- form labor on the public works or ways in the county. 97 Cal. 243. Rules and regulations for the performance of labor. 1614. The board of supervisors making such order may pre- scribe and enforce the rules and regulations under which such labor Is to be performed; and provide clothing of such a dis- tinctive character for said prisoners as such board, in its dis- cretion, may deem proper. For each month in which the pris- oner appears, by the record, to have given a cheerful and will- ing obedience to the rules and regulations, and that his con- duct is reported by the officer in charge of the jail to be posi- tively good, five days shall, with the consent of the board of supervisors, be deducted from his term of sentence. [Amend- ment, approved March 23, 1893; Stats. 1893, p. 298.] 97 Cal. 243. , INDEX. Page. Sec. Abandonment by parent of child 271 Abduction 71 a taking from legal custodian material to the offense , 71 consent to taking no defense 71 defined 265 effect of previous unchastity 72 evidence 72 for prostitution 267 form of indictment 73 ignorance of age no defense 72 indictment 73 jurisdiction of ' 46 784 legal custodian defined 72 penalty for 73 Abortion 74 defined .- 274 evidence on 1108 form for indictment 75 penalty for 74 submission to 275 Absence from state must be alleged to prevent run- ning of statute 47 prevents running of statute of limitations 47 Accessory, accomplice is an 363 and principal distinction between abrogated... 971 defined 42 how punished ' 33 jurisdiction of 791 jurisdiction over, county of his offense 47 trial of, when 43 where to be tried 972 who is an withholding knowledge, does not constitute.... 43 Accomplice, conviction cannot be had on evidence of. 1111 discharge of operates as bar 61 evidence of 363 instruction on corroboration of 420 is an accessory 363 testimony of must be corroborated 364 see Accessory. Accounts, falsification of 424 Acid, see Throwing Vitrol. Acknowledgment, false personation in 529- 764 INDEX. Page. Sec. Acquittal, discharge of defendant to be a witness acts as 1101 in foreign country, effect of 656 proceedings on for insanity 1167 Act necessary to constitute crime 33 Action, when may be dismissed 1382 Actual bias, challenge to juror for 1073 see Bias. Administrative officer, see Officer. Administrator, embezzlement by 506 Admission of fact need not be voluntary 370 Adulteration of candy 402J of foods, etc 382 Adultery 76 form for indictment 76 penalty for 76 Advertising to produce miscarriage 317 Advertisement, of attorneys for divorces 159} putting on land of another 602 see Trespasses. Affidavit, by deputy 283 entitling of before justice of the peace 1460 for change of venue 325 how entitled 1401 how entitled 1563 of bias of judge not contempt 112 Agnt, embezzlement by 133 506 when guilty of embezzlement 508 Aiding officer, persons justified in 698 Aiding and abetting both necessary to principal 42 in misdemeanor 659 without knowledge not criminal 42 Alibi, evidence of 391 Alimony, disobedience of order to pay 112 Altering, draft of bill of legislature enrolled bill of legislature Alternate jurors, when allowed Ambiguity, fatal to information 311 Amending verdict 443 Amendment, motion for new trial after judgment can- not be 457 Ammunition, selling to Indians ; .Animals, administering poison to altering brands on death from mischievous false registration of 537i for propagation, not prohibited 6261 having glanders, to be killed 402$ killing, maiming or torturing 597 putting dead in street, etc 374 with glanders, using 403 INDEX. 765 Page. Sec. Answer, to arraignment, defendant allowed time to make 99Q Antelope, killing of female prohibited 626e Appeal 4 60 argument of 1254 by defendant 461 1243 by defendant, grounds for 12S7 by defendant, what reviewed on 1259 by people, effect of U42 by people, grounds for 1238 by people when 461 by whom taken 1235 conflicting evidence not reviewed on 472 defendant need not appear on 1255 dismissal, grounds of 1248 dismissal for want of return 1249 duty of clerk on 1246 duty of clerk to print transcript on 463 effect of 463 effect of affirmance of judgment 1263 effect of granting certificate of probable cause. . 1245 escape pending 460 from what orders allowed 461 jurisdiction on 460 how taken 1240 judgment cannot be reversed without argument 1253 judgment on, how entered 1264 judgment on without regard to technical errors 1258 plea of once in jeopardy cannot be made be- cause of new trial granted on 62 power of the court on 1260 presumption against error on 469 presumption in favor of record on 462 order on motion for arrest of judgment not ap- pealable 459 record on 462 review of error favorable to defendant 476 review of evidence on 471 service of notice of sufficiency of evidence when reviewable on 473 to Superior Court affect of dismissal of to Superior Court, statement on to Superior Court, when allowed taken on questions of law alone two cannot be taken on one notice 462 unauthorized release pending is escape 450 when defendant discharged on reversal when dismissed 463 when from order setting aside information 315 when from order sustaining demurrer 316 when heard and determined when ruling on challenge reviewable on 336 when taken who may admit to bail on 1291 will not lie from habeas corpus 481 "without consent of defendant . . 460 766 INDEX. Page. Sec. Appearance, right of defendant to personal, in trial.. 52 Appellant, party appealing is 1236 Appointments, buying to office of deputy, taking reward for 74 Appraisers of estate accepting reward 653 Apprentices, encouraging to desert or harboring.... 646 Arbitrator, bribery of 92 Argument on appeal 1254 of counsel, number 1095 right of counsel to make 56 Armed force, to obey orders of whom 730 Arms, who may parade with 734 Arms of state, selling 443 unlawfully retained 442 Arraignment 313 consists in what 313 defendant allowed time to answer y90 defendant in custody to be brought into court on 979 defendant when must be present at 977 duty of court to defendant on. 313 for judgment 1200 how made 988 of defendant, where had 976 proceedings on, where defendant not indicted by true name 989 right of defendant to counsel on 987 when defendant must be present 57 Arrest 290 by peace officer by private person by telegraph by whom made denned duty of citizen to make 184, 291 duty of person making for felony without warrant for offense in presence of officer force to be used in 843 form for warrant of 289 how made 290 informing defendant of intention to make when of defendant on bench warrant of defendant on recommitment officer making without authority officer must follow warrant officer need not disclose official character 291 officer refusing to make officer taking fee for of persons engaged in riot on order of magistrate person making may order assistance 839 probable cause for 290 proceedings on 485 INDEX. 767 Page. Sec. Arrest, reasonable cause for 836 refusing to aid officer in 150 resisting, killing in when murder 177 right of officer in making 291 right to make without warrant 291 taking weapons from person 846 warrant of, when issued 289 what constitutes reasonable ground for 184 what constitutes resisting 183 when an officer justified in killing in making.. 183 when doors and windows may be broken in making < 844 845 when may be made 840 when warrant may be shown 842 without warrant, duty of officer in 849 Arrest of judgment, effect of 458 by justice of the peace 1452 exception to granting or refusing motion to.... 1172 for variance in proof of venue 51 for what defects granted 458 grounds for 1185 grounds for must be pointed out 458 motion for 458 order on motion not appealable 459 see Judgment. Art, injuring works of 622 Arson 78 allegation of ownership 81 building defined 78 448 burning defined 451 burning property not subject of 600 defined 447 degrees of 453 " 80 454 description of building in indictment 81 evidence 82 form for indictment 82 indictment for 80 inhabited building defined 449 intent, how alleged 81 intent to destroy essential '. 80 night-time defined 450 ownership defined 452 ownership of building 78 penalty for 82 455 to defraud insurer 79 venue, how described in indictment 81 what constitutes burning 79 Articles of impeachment, how prepared to be delivered to whom 739 Asportation essential to larceny 216 how alleged in larceny 224 Assault 84 abandonment of attempt no defense 86 attempt essential to 85 768 INDEX. Page. Sec. Assault, battery no part of 86 by officers 149 by prisoner under life sentence 246 defined 240 form for indictment 89 included in battery 87 in court, security for 710 instructions on 434 intent 84 jurisdiction of Superior Court 49 penalty 89 241 possession of deadly weapon with intent to.... 467 present ability 85 to commit felony except assault to commit murder 221 verdict 88 with caustic chemicals 244 with deadly weapon, indictment for 87 with intent to commit felony 220 Assault to commit rape 255 instructions on 436 punishment for 451 Assault to murder 90 217 evidence 91 form for indictment 93 indictment for 92 instructions on 433 intent a question of fact 91 intent to take life essential to 90 verdict 92 Assault with deadly weapon 87 245 instructions on 433 Assessment, making false statement in 430- Assessor, refusing to list property to 429 Attempt defined 34 essential to assault 85 essential to crime 34 failure of, or abandonment does not change character 35 illustrations of 34 to commit crime unsuccessful, penalty for.... 665 to commit crime, when punishable how punished to commit incest 210 to kill, punishment for when jury may convict of Attendance of witnesses, compelling 357 Attorneys acting on opposite side from partner In a case 163 advertising for divorces 159$ buying demands 161 embezzlement by 506 misconduct of 160* see Counsel. INDEX. 7B9 Pae. Sec. Auctioneer, acting unlawfully as 436 Badges of secret society, unauthorized wearing of.... 543$ Bail, admission of fugitive to 1552 admission to by justice of peace 1458 admission to defined 1268 admission to in misdemeanors 829 after conviction, when granted 68 1272 after indictment, form of undertaking 1287 amount of 68 before conviction 1271 by whom taken when defendant ordered recom- mitted 1315 defendant need not sign bond 67 defendant to be admitted on postponement.... 862 deposit instead of, after giving 1296 deposit instead of may be ma4e 1295 effect of allowance of 1281 exonerated by commitment of defendant for insanity 1371 exonerated, when defendant discharged 1116 failure to give 824 false personation of 150 529 for what purposes taken 1273 forfeiture of 1195 form of undertaking on 1278 habeas corpus to admit to 482 increase or reduction of 1289 increasing 985 Indorsement on bond of approval of sureties... 67 judge may admit to on habeas corpus 1491 justification on 1280 nature of 1273 on appeal, condition of undertaking 1292 on appeal, qualifications of 1292 on appeal, who may admit to 1291 on habeas corpus 1286 order admitting 293 875 order admitting to not essential to commitment 286 presumption of guilt on application for 66 proceedings in giving in another county 984 proceedings on taking qualifications of on recommitment 1317 qualifications on 1279 right of defendant to 52, 66 sections of the code applicable to qualification surrender of defendant by 1301 taking defined 1269 taking in custody after admission to 67 undertaking of, how forfeited 1305 what magistrates may admit to when allowed 1270 when defendant arrested in other county 822 when matter of discretion district attorney must be notified 1274; CRIMES--49 770 INDEX. Page. Sec. Bail when taken on recommitment, form of 1316 where the offense is capital 1285 where the offense is not capital 1284 who authorized to admit to 67 "Bailee, allegation of in indictment for larceny 225 embezzlement by 507 larceny by 218 Ballast, throwing overboard in harbor 613 Ballots, see Election. Bank, officer of insolvent receiving deposit 562 embezzlement by 506 Bar, order setting aside information not 999 Barber shops, keeping open on Sunday afternoon. . . . 310$ Barratry defined 158 how proved s 159 Battery 86 defined 242 no part of assault 86 penalty for 243 Beacon, removal of 609 Bench warrant, arrest of defendant on 1199 by whom and how issued 934 by whom and when issued 980 directions in 982 form of 935 981 1197 how served 983 936 1198 issue for defendant not appearing for judgment 1195 issues when 1196 on presentment 933 Betting on election 60 Bias, challenge for actual 336 challenge for implied 339 of judge, change of venue for 327 of people, change of venue for 325 Bigamy 94 defined 281 defense to evidence on trial for 1106 form for indictment 96 indictment for 95 jurisdiction of 46, 96 785 marriage after absence of spo*se when not.... 282 no presumption of continuance of life 94 penalty for 96 283 proof of former marriage 95 Bill of exceptions defined 464 defendant entitled to stay until settled 468 how prepared 464 how proved in Supreme Court 465 INDEX. 771 Page. Sec. Bill of exceptions, how settled 467 judge may amend proposed 467 presumption as to evidence in 466 presumption in favor of 467 same in form as statement 466, 468 should be in narrative form 466 time of settlement 467 unauthenticated papers no part of 465 what to contain \ 175 when necessary 464 when settled and signed 1171 written charges need not be embodied in 1176 Bill of lading, destroying 355 false making of 541 issuing fictitious 577 when punishable 579 Bill posting, see Trespassing. Birds, for propagation, not prohibited 626Z killing or trapping in cemetery 598 Birth, false pretenses concerning 156 Black bass, closed season for - 628 Board of examiners, neglect of duty by member of. ... 441 Board of state prison must keep accounts, etc 1580 must receive federal prisoners 1581 Board of Supervisors, bribery of 165 Bobwhite, killing of prohibited 626c Bond, defendant need not sign en bail .... 67 forgery of 470 Books, of library, wilful detention of 623$ Boundaries, destroying marks of 602 Brands, altering altering on domestic animals 357i Bribe, giving or offering. to officer 67 meaning of officer asking or receiving 68 witness offering to receive 138 Bribery 97 board of supervisors by members of the legislature common council 165 evidence 98 forms for indictment 99 indictment 98 judicial officer or referee asking for bribe judges, jurors and referee members of legislature 86 members of legislative caucuses of telegraph operator of witness 137 penalty for 99 Bridges, injury to or destroying malicious injury to railroad maintaining without authority 772 INDEX. Page. Sec. Broker, embezzlement by 506 Building defined 448 destroying or injuring by means of gunpowder 601 how described in indictment for arson 81 letting for purposes of lottery 326 subject of arson 78 what constitutes a burning 79 Burden of proof 388 when shifts 1105 Burial, omitting to make 293 who charged with duty of 292 Buoys, mooring vessels to 614 removing 609 Burglary defined 101 459 degrees of 460- commitment to Whittier School without jury. . 450 entry essential to 101 evidence -. 103 form for indictment 106 indiccment for 103 intent essential to 101 larceny not included in 223 night-time defined 103 463 penalty for 105 461 possession of instruments for 466 venue 102 verdict 105 Burning defined rafts Calendar, duty of clerk to prepare order of disposing of issues on Canal, injuries to Candy, adulterating Capital cases, bail in Car, jurisdiction of crime on 46 Caricatures, publishing of Carrier, embezzlement by 50^ Cars, putting passenger cars in front of freight cars. 392 Cattle, false registration of 5374 Caucus, bribery of members of 57 Caveat emptor, not applicable to false pretenses.... 154 Cemetery, destroying or removing anything pertain- ing to 296 killing birds, etc., in 598 see Sepulcher. Certificate of probable cause 468 by whom granted 469 effect of granting 469 necessary to stay judgment 124$ wnen granted 46S when necessary 468 INDEX. 773 Page. Sec. Certificate of stock, forgery of 470 Challenge, defendants jointly tried must join in 331. effect of to individual juror 90rt effect of to panel of grand jury 899 evidence upon 335 for actual bias 336 for implied bias 339 grand juror acting after allowed to 164 manner of taking and trying 897 peremptory 3J3 right to 331 to grand jury 298 to grand jury, decision on 898 to grand jury, only objection to 901 to individual grand juror 894 396 to individual jurors 1067 to jury, defendants jointly indicted 1056 to jury, exception to order on 1170 to jury, kinds of 1055 to panel 331 to panel defined 1058 to panel, grounds for 1059 to panel of grand jury 895 when ruling on reviewable 336 when taken 334 see Juror. Change of venue 325 see Venue. Charges of court in writing need not be excepted to 1176 Chaste character, no presumption of in seduction.... 269 Chattels, removal of mortgage 537 Cheat, see False Personation and False Pretenses. Check, forgery of 470 Child desertion by parent disposing of for mendicant business lascivious conduct towards neglect to provide for 270 see Infant. Child stealing 212 defined punishment 278 form for indictment 214 jurisdiction for 46 penalty for 213 see Kidnapping. Children, crime against defined ' when liable for crime 26 Chinese, bringing into the state corporations employing shrimp or dragnet, use of prohibited 636a Chinese sturgeon lines, use of prohibited 636a Circulars, anonymous at elections 62a 62b 774 INDEX. Page. Sec. Circulation of newspaper, misrepresentation of 538i Circumstantial evidence 361 degree of certainty required 362 of homicide . ' 197 Cities, regulation of police in 719 keeping pest-house within 373 Citizen, duty to make arrest when 837 Civil death follows life imprisonment 674 Civil officers, duty of militia to obey when 730 Civil rights of convict suspended 673 Claims, presenting fraudulent for allowance 72 Clerk disclosing fact of indictment 168 duty on appeal 1246 duty to prepare calendar 1047 must prepare judgment roll 1207 of state prison, duty of 1578 when guilty of embezzlement 508 to make statement of expenses of trial of es- capes Ill Closed season 626 Co-conspirators, where acts of one act of all 366 when declarations of admissible 367 Code, construction of 4 " 5 effect on past offenses 6 how cited 24 how affecting power to punish for contempt... military authority not affected by 11 not retractive 3 what acts not affected by 23 when takes effect 2 Codicil included in will 7 Coercion, effect of on crime. . . . . ; 41 not to join labor organization ' 679 Commission to take testimony defined 1351 to take testimony, see Deposition. Commitment, defect in not ground for discharge on write of habeas corpus 1488 for examination, how made 292 for failure to give increased bail 985 form of 294 863 " 877 legality of, how raised 287 legality of, presumed 286 meaning of legally committed 285 order admitting to bail not essential to 286 order of 873 order of, how made 294 order of, when operative 285 of witness on failure to give security 881 to keep the peace 708 what to contain 294 876 when order of sufficient 284, 448 INDEX. 775 Page. Stec. Commitment without probable cause, habeas corpus will release 483 Common law crimes, not recognized 33 Communication, unauthorized with convict '. . 171 Commutations, governor may grant 1417 Common barratry, see Barratry. Common carrier, refusing to carry.. 365 Common council, bribery of 165 Competency of witness 346 Complaint, clerk of court may administer oath on.. 283 defined 806 form of 288 must state public offense 283 necessary to proceedings in justice court 1426 of defendant by fictitious name 284 on information and belief insufficient 283 sufficient deposition to sustain warrant 286 Compounding crimes . 107 153 form for indictment 108 penalty for 107 Compromise of crime, effect of 1678 how effected 1379 when allowed 1377 Concealing person charged with crime, see Accessory. Concurrent jurisdictions, conviction in bar to second trial 47 Conductor of railroad train, intoxication of 391 Confession cannot be used to establish corpus delicti 373 corroborated need not be voluntary 371 defined 368 must be voluntary 369 out of court will not sustain conviction 369 prosecution must show was voluntary 371 received with caution 369 voluntary when intoxicated 371 written sufficient preliminary examination.... 283 Consent, instructions on age of 436 rape under age of 249 will not confer jurisdiction 48 Consignee, obtaining property by false statement.... 536 Conspiracy 109, 366 agreement alone when sufficient 366 defined evidence on trial for 1104 form for indictment 110 instruction on 420 jurisdiction of 795 penalty for -. 110 punishment of 182 " 183 when act of one act of ail 366 when overt act essential to 184 776 INDEX. Page. Sec. Constable is peace officer 817 purchasing judgment 97 Constitutional rights of defendant, what are 52 Contagious diseases, see disease. Contempt Ill act of punishable as a crime also 657 by witness 115 cannot be used to adjudicate property rights.. 113 defined 166 disobedience of void, order not 480 how effected by code 11 in presence of court punished peremptorily.... 114 insulting letters to grand jury 112 judgment on final not reviewable 116 jurisdiction of 112 mitigation of punishment, grounds for 658 of legislative bodies 117 order violated must be entered 113 order violated must be in pending cause 113 out of presence of court 114 proceeding on must show jurisdiction 115 violation of unlawful orders 116 what acts are 112 who may be punished for Ill (Continuances 321 admission of fact, effect of 323 affidavit for what to contain 321 defendant may except to refusal of 1173 for absence of counsel 324 for failure to try 1383 granted at request, do not waive statute limita- tions 48 granting discretionary with court 322 grounds for 321 on what proceedings granted 323 'Contracts for state prison must be by public letting 1587 officer illegally interested in 71 superintendent of printing interested in 99 Controller, neglect of duty by 441 Conversion, what amounts to embezzlement 131 Conveyance of property by prisoners 675 of real property by fraud 531 see Forgery. Conveying instruments to prisoners, form for indict- ment for 141 Convict, civil rights of suspended 673 compensation for transporting 1586 credit for good behavior 1590 credit for good behavior when forfeited 1591 importing 173 jurisdiction to try, on production on illegal order 48 person of protected by law 676 property not forfeited 677 unauthorized communication with 171 INDEX. 777 Page. Sec. Convict labor, how employed 1588 -Convict made goods, limiting sale of 679a Conviction, bail after 68 confession out of court will not sustain 369 essential to punishment 681 how had 689 imports what 445 in concurrent jurisdictions, bar to trial 47 in foreign country, effect of 656 of crime, how had 52 of lesser offense, effect of 63 of lowest degree, when 1097 or acquittal of higher offense, effect of 1023 plea essential to 316 plea of guilty operates as 60 previous confessed must be excluded from jury 319 previous effect of confession of 319 proceedings upon 1166 void, coram non judice 48 Coram non judice, void conviction is 48 Coroner to issue warrant of arrest, when 1517 "Coroner's inquest, six jurors must be sworn 1511 testimony of witnesses before, where filed.... 1515 when to be held 1510 witnesses compelled to attend 1513 witnesses to be summoned on 1512 verdict of the jury 1514 Coroner's warrant, form of 1518 how served 1519 -Corporation director presumed to know its condition. 568 employing Chinese 178 179 fraud in keeping books of 563 fraud in organization of 558 fraud in subscriptions to stock of information against 1390 information against action of magistrate 1394 information against examination of charge 1393 Information against form of summons 1391 misconduct of directors of 560 officer publishing false reports 564 proceedings against, appearance and plea 1396 fine against, how collected 1397 proceedings against when grand jury investi- gates 1395 stockholder right to inspect books of unauthorization of name of in prospectus of. . . 559 wnen director presumed to assent to proceed- ings 569 570 Corporation books, false entries in 146 false entries in, penalty for 146 Corpse, see Dead Body. 778 INDEX. Page. Sec. Corpus delicti as evidence 373 confession or admission will not establish 373 in homicide cases 205 must be established before other offenses ad- missible 380 Corroboration of accomplice necessary 1111 of testimony of accomplice 364 Corruptly, meaning of 7 Counsel, argument of 396 continuance for absence of 324 defendant must have time to send for 859 defendant's right to 52, 06, 284, 291 686 duties of 393 number that may argue 1095 private may assist district attorney 398 right of argument by 56 right of defendant to on arraignment 987 waiver of right to 56 Counterfeited trade-marks denned 352 Counterfeiting coin, bullion, etc 477 penalty for . . . 478 possession of 478 quicksilver stamps 36(5 railroad tickets 481 trade-marks 350 see Forgery. Counterfeiting dies, making or possessing 480 Counterfeiting implements, possession of 163 County jail, duty of sheriff to receive prisoner in.... 1601 guard for 1610 how kept 1597 of contiguous county may be used 1604 prisoners classified in 1599 prisoners in actual confinement of 1600 room required in 1598 when unfit for use prisoners where confined... 1603 County seat, court takes notice of 50 County treasurer, see Treasurer. Court, appellate, jurisdiction lost by sending down remittitur 48 deemed open until verdict rendered 1142 division into departments for convenience.... 50 duty of on pronouncing judgment 445 duty to fix punishment 12 illegally constituted, jurisdiction does not attach 48 jurisdiction of 44 jurisdiction of superior, on reversal 49 may advise jury to acquit, when 1118 may allow private counsel to assist prosecution 398 may amend record 399 may arrest judgment on its own motion 1186 may direct resubmission to grand jury 942 INDEX. 779 Page. Sec. Court may dismiss action on application of district attorney 1386 may hear circumstances in mitigation or aggra- vation of punishment 1203 may make order to bring a prisoner before it. . 1567 may modify instructions 410 may order stolen property returned 1410 may permit jury to view locus quo 1119 may read statutes and decisions to jury 410 may suspend judgment of conviction of minor when 1388 misconduct of 395 must admonish jury 341 must admonish jury on separation 1122 must charge grand jury 905 must charge jury 1127 must decide questions of law 1124 must determine degree when 1192 must not instruct as to facts 400 new trial for error of 1181 no terms of in California 50 offenses in presence of, security for 710 power on Sunday 50 recesses of defined 50 rules of, object of 3S*8 sessions of defined 50 taking case from jury 398 when jurisdiction presumed 48 when to discharge grand jury 906 without legal existence, habeas corpus releases from conviction by 48 Courts of general jurisdiction, jurisdiction presumed.. 48 Courts of limited jurisdiction, no presumption in favor of 48 Crawfish, closed season for 628 Credibility of witness 347 Crime, any person may resist when 694 committed in two or more counties, jurisdiction over 45 committed partly out of state, jurisdiction of. . 44 compounding 107 1S3 conviction of, how had 52 defined ; 33 16 effect of coercion on 41 essentials of 33 how divided how effected by intoxication how prevented by officers how prosecuted 682 ignorance of fact excuses 41 ignorance of law no excuse for 41 impairment of will, no excuse for Incapacity for '*t irresistible impulse no excuse for 38 780 INDEX. Page. Sec. Crime, joint operation of act and intent 33 jurisdiction 44 jurisdiction of, commenced out of state 45 jurisdiction of crime on car or vessel 46 lawful resistance to 692 member of grand jury must declare knowledge of 922 monomaniac may be responsible for 38 on boundary of county, jurisdiction over...... 46 parties to 30 penalty and definition necessary to constitute. 33 resistance to prevent 693 union of act and intent in 20 voluntary intoxication no excuse for 39 when and how compromised 1377 when barred 47 when insanity excuse 37 v, - bo capable of committing 26 who punishable for in this state 27 Crime against nature 118 286 assault to commit 220 form of indictment 118 penetration sufficient to complete 287 penalty for 118 Criminal action defined 683 time for commencing 47 rights of defendant in 686 removal of 1033 Criminal capacity, who are capable of committing crime 37 Crops, injury to standing 604 Cross-examination defined 359 of defendant 356 Cumulative sentences, when imposed 451 Dairy, false tests of products '. o81a Dam, injuries to 607 of running water may be removed 637 Damages, omission to specify 9 Dead body, arresting or attaching 295 mutilating or removing 290 unlawfully interred 297 unlawfully removing for dissection 291 who entitled to custody of 294 Deadly weapon, assault with 24& assault with, instructions on 433 defined 87 exhibition of 417 instructions on 434 possession with intent to assault 467 see Disturbance of the Peace, see Assault. Death, from explosions 368 from mischievous animal 393 from negligence 368 INUEX. 781 Page. Sec. Death, from negligence 369 in murder and manslaughter, when must occur 194 judgment of. how executed 1217 judgment of, judge must transmit testimony to governor 1218 must result within a year and a day to con- stitute felonious homicide 173 Death-punishment inflicted by hanging 1228 Death warrant, return on 1230 Debt, evidence of subject of embezzlement 510- Debtor fraudulently concealing property 154 Decision, when defendant may except to 1170 Declarations in presence of defendant 374 of co-conspirator when admissible as evidence. . 367 when admissible .- 371 Deed, acknowledging in name of another 150 forgery of 470 see Forgery. Deer, closed season for male 626f killing of female prohibited 626e limit of killing in one season 6261 meat, possession of in closed season 626 pelts, possession or sale of 626h- running or trailing during closed season 626j De facto officer, must have legal office . 18 Defamation, see Libel. Degree, court must determine on a plea of guilty.... 1192 verdict must find 1157 when circumstances in murder show 178 when to be convicted of lowest 1097 Degrees of arson 80 453 " 454 of burglary 460 of murder 177 189 of murder distinguished 179 Defendant, absence of at trial 1181 acquittal or conviction of one jointly indicted.. 970 acts and declarations in presence of 374 allegation of name 302 amount of bail 68 appeal by 461 appeal without consent of 460 arrest of on recommitment 1312 as witness 355 bail after conviction, when granted 6rf bail exonerated when discharged for want of jurisdiction 111& bail for misdemeanor when arrested in other county 822 cannot be made a witness against himself without consent 56 cannot be twice put in jeopardy 52, 60 782 INDEX. Page. Sec. Defendant cannot consent to trial by less than twelve 54 cannot plead once in jeopardy after new trial granted 62 cannot waive preliminary examination in felony 283 character of as evidence -38i complaint of by fictitious name 284 conduct of as evidence 375 confession of as evidence 368 conviction of lesser offense, effect of 63 court may order committed to custody to abide judgment 1129 crime stated in complaint and in information must be same 287 cross-examination of 356 discharge of for lack of jurisdiction 1113 discharge of jury for escape of does not con- stitute jeopardy 61 discharged on reversal on appeal 262 does not waive privilege by taking stand 56 doubt as to sanity determined 1368 duty of court to on arraignments 313 duty of magistrate toward 291 duty of magistrate to inform of right 858 duty of officer taking money from. 1412 effect of discharge for failure to state offense.. 1117 effect of discharge for want of jurisdiction.... 1115 effect of discharge to be a witness 1101 effeat of dismissal of information 62 effect of insanity of 390 effect of standing mute 65 entitled to public trial 54 entitled to separate trial 1098 entitled to stay until bill of exceptions settled.. 468 errors favorable to 476 exception to refusal of continuance 1173 flight of 375 fraudulently concealing property 155 how jeopardy pleaded 65 how surrendered 1300 In custody how brought for judgment 1194 Indicted by fictitious name 953 insane where detained 1372 is party prosecuted . , 685 Jeopardy attaches after jury sworn 60 jeopardy does not attach where jury discharged by consent of 60 jointly tried must join in challenge to juror. . . . 331 Jointly charged no right to separate preliminary examination 282 jointly tried, verdict 1160 may appeal, when 1237 may be compelled to stand for identification... 56 may be discharged to be a witness when evi- dence is insufficient 1100 may claim privilege when occasion arises 56 INDEX. 783 Page. Sec. Defendant may demur or plead 1002 may except to order on motion for change of venue 1173 may except to what 1170 may have witnesses conditionally examined when 1335 may produce witnesses on examination 866 may take depositions conditionally 55 may waive right to be confronted by witnesses. . 56 may waive time for sentence H8 must be arraigned 976 must be informed of right to challenge jurors.. 1066 must be present on arraignment in felony cases 313 must be present at judgment 1193 must prove absence from trial if he objects... 58 must show cause against sentence 447 must withdraw plea of prior conviction before denying 320 need not appear in appellate court 1255 need not sign bail bond 67 no right to particular remedy 59 not bound to explain except when burden of proof shifts 65 not compelled to be a witness against him- self 688 52 1323 not entitled to non-suit 390 not entitled to particular juror 55 not in custody, proceedings on indictment found 945 not indicted by true name, proceedings on ar- raignment 989 on bail, how brought for judgment 1195 order admitting to bail 293 875 ordered 'recommitted when admitted to bail 1314 plea of guilty is conviction 60 plea of before justice of the peace must be oral 1429 pleas of 315 presence in appellate court not necessary 57 presence of, when necessary 57 presence of at trial before justice of the peace 1434 presumption as to character 382 presumption of guilt on application for ban 66 presumption of innocence 65 1096 proceedings against where bail increased 986 proceedings where taken before another magis- trate 82b recommitment of contents of order 1411 released on bail, when recommitted 1310 restraint to be put on 688 right only to lawful jury 335 right to appear in person and by counsel 52 right to appear without irons 55) right to bail 52, 66 right to be confronted with witnesses 52 784 INDEX. Page. See~ Defendant, right to be protected against forced examination 56 right to challenge jury 331 right to continuance 321 right to counsel 56, 284, 291 right to counsel on arraignment 98T right to counsel, waiver of 56 right 'to jury trial 54 right to legal formalities in selecting jury.... 55 right to protection from forced examination.... 357 right to protection from second prosecution.... 687 right to speedy and public trial 52 right to trial by due process of law 52 rights of before grand jury 296 rights of in criminal action 686 service of articles of impeachment on 740 standing mute, duty of court 317 standing mute, effect of 1024 statute of limitation does not run when out of state 802 subject to what restraint 835 taking in custody after admission to bail 67 to be confronted by witnesses against him... 55 to be discharged upon sustaining demurrer when 100 to be ordered into custody after retirement of jury 68 to be taken before magistrate issuing warrant.. 821 to be taken before magistrate without delay. . 825 time to prepare for trial 1049 when and how committed 872 when burden of proof shifts to 1105 when challenge to juror taken by 1086 when discharge to be a witness 1099 when discharged and how 871 when duty of magistrate to hold "... 283 when held on preliminary examination 293 when must be present at arraignment 977 when present at rendering of verdict 1148 when required to be personally present at trial 1043 when to be discharged 1165 when to be discharged by justice of the peace. . 1454 when discharged on preliminary examination... 293 when to be discharged on arrest of judg- ment 1188 when to be discharged in homicide cases 199 when to be informed of intention to make ar- rest 841 when to be recommitted 1313 who authorized to admit to 67 witnesses must be examined in presence of... 292 Defense, insanity, received with caution 38 Deformity, exhibition of 400 Defraud, intent to 8- Deliberation defined . 179 INDEX. Page. Sec. Deliberation, time for in murder 179 Delusion, insane, how judged 39 Demand, when essential in embezzlement 132 attorneys buying 161 Demurrer, allowance of when a bar 1008 disallowed, proceedings after 1011 exception to allowing or overruling 1172 failure to make waived what objections 1012 form of 1005 grounds of * 1004 judgment on 1007 to jurisdiction proper 49 proceedings after sustaining 316 special, to information 305 sustained, when defendant to be discharged on 1009 what objections taken by 315 when heard 1006 when made 1003 when order sustaining appealable 316 Departments of court, division into imaginary 50 convenience 50 Deposit instead of bail 1295 instead of bail return on surrender of defend- ant 1302: instead of bail to be applied how 1297 instead of bail, when forfeited 1307 Depositions at examination 864 : at preliminary examinations when admissible at trial 385 before magistrate to contain what 812' complaint a sufficient to sustain warrant 286 commission and return, inspection of 1361 commission to take when granted 1352 to whom made . 1353 commission when and how filed 1360 direction as to commission to take 1356 commission how executed 1357 return of 1358 1359 every requirement must be observed in taking. . 55 for search warrant what to contain 1527 of imprisoned witness 134& of witness conditionally examined sent to clerk 1344 of witness conditionally examined when used.. 1345 of witness unable to give security 882 order 'granting commission take, effect of 1354 settlement of interrogatories 1355 taken conditionally on behalf of defendant.... 55 taken on commission to be read in evidence... 1362 to be kept by magistrate 870 to be returned by magistrate 883 when deemed complete in perjury 124 when returned to court by grand jury 941 witnesses at examination 869* CRIMESSO 786 INDEX. , Deputy taking reward for appointment of 74 Digging on land of another, see Trespassing. Direct examination defined 359 -Directors of corporation, misconduct of 560 defined 572 presumed to know condition of corporation.... 568 when presumed to assent to proceedings of a corporation 569 570 Discharge for threatened offense, when 705 Disease, exposing persons affected with in public places 394 Disguise, wearing of 185 Dismissal for failure to try, effect of 1384 of action by court 1385 of action when allowed 1382 when a bar 1387 Disorderly conduct, see Disturbance of the Peace. Disorderly house, keeping 316 Dissection, unlawfully removing dead body for 291 District attorney, duty of 393 duty on arrest of fugitive 1554 duty on inquisition of insanity , 1222 duty to destroy indecent articles 314 duty to subscribe and file information 809 failing to attend trial court must appoint 1130 misconduct of 393 must be notified of application for pardon. . . . 1421 must be notified when bail a matter of dis- cretion 1274 must sue on undertaking, when 712 private counsel may assist 398 proceedings for removal of 771 Disturbance of meeting of electors of legislature 82 public 403 religious 302 Disturbance of the peace 121 assembly for 416 form for indictment 121 Divorces, attorneys advertising to procure 159$ Docket must be kept by justice of the peace and police justice 1428 Dogs, property susceptible of larceny 491 Domestic animal, altering brands on 357i Dove, closed season for 626a Drag-net, use of prohibited 636a Driving fast on toll bridge Druggist, omitting to label drugs 380 Drugs, administering of to commit abortion 274 administering stupefying omitting to label 380 INDEX. 787 Page. Sec. Drunkenness, effect of on intent 36 insanity caused by 39 when admissible in homicide case 204 Duck, closed season for 626 Due process of law denned 58 Duel, defined 225 duty of officer to prevent 230 killing in not self defense 190 jurisdiction where inhabitant of state con- cerned in 779 leaving state to engage in 780 leaving the state to fight 230 penalty for 226 " 227 persons fighting disqualified to hold office 228 posting for not fighting 229 privilege in prosecution for engaging in 232 Dueling, jurisdiction foj out of state 45 Duplicate receipts musi ^e so marked 580 Duress, when a defense to crime 26 Duty, omission of by public officer 176 Dying declarations, when admissible 200 as to what admissible 202 Dynamite, taking fish by 635 Eggs of birds, possession or destruction of 626b Election, aiding or abetting in violation of laws 52 altering returns of 48 anonymous political circulars 62a 62b attempting to vote without qualification 46 betting on , 60 candidates for legislature accepting assistance 63$ changing ballots at 48 changing votes cast 51 corrupting electors 53 defrauding electors disturbances of meetings of electors forging or altering returns of 50 fraudulent voting 45 furnishing money for 54 inspectors unfolding or marking tickets 49 intimidating electors no prosecution against witness testifying at. . 64 offenses against primary 64$ offering to procure offices for electors 55 ' 56 officer, acting as without appointment how punished officer, violation of law. punishment for procuring illegal voting 47 promise by candidates to U. S. senators to secure 63 788 INDUX. Page. Sec. Election, refusal to obey summons of board 44 violation of laws of . . 61 Election board, refusal to ~e sworn by 43 Election laws, forms for indictment for violation of. . 124 crimes against 123 penalty for violation of 123 Electric wires, interference with 593 Electricity, larceny of 499a Elisor, when appointed 330 when to be appointed , . 298 Elk, killing of female prohibited 626e Embezzlement 131 by agent 133 by bailee 507 by carrier 505 by officer 504 by officers 424 by public officer 133 by trustee 506 claim of title a defense 511 defined 503 demand essential to, when 132 distinct act of taking not necessary 509 distinguished from larceny 218 evidence 134 form for indictment 136 how pleaded 967 indictment in 135 intent 134 intent to restore no defense 512 of public moneys, no limitation 47 799 ownership 135 penalty for 136 514 property subject of 131 property susceptible of restoration of property, effect of 513 venue 134 what amounts to a conversion 131 when agent or clerk guilty of 508 when allegation sustains 1131 Embracery, see Bribery. Employer paying wages in a saloon 680 refusing to give names of employes to tax col- lector 434 Engineer, intoxication of 391 omitting to ring bell at crossing 390 Enticing to place of gambling 318 Enticing to place of prostitution 318 Errors favorable to defendant 476 in proceedings, when not material 1404 must be argued 467 presumed prejudicial 471 INDEX. 789 Page. Sec. Errors, presumption against on appeal 469 specification of in bill of exceptions 466 Escapes 140 105 107 assisting prisoner to 109 attempt to make. 106 107 breaking doors to retake 855 carrying into prison things to aid 110 expense of trial for Ill forms of indictment for 140 instruction on 421 jurisdiction of 46 787 pending appeal, effect 460 penalty for 140 retaking of 854 unauthorized release pending appeal is 450 Estates, appraisers of accepting reward 653 J Evidence 361 acts and declarations in presence of accused. . 374 admissible under plea of not guilty 1020 admissions as 370 alibi 391 anticipating defense 390 bill of exceptions presumed to contain all 466 burden of proof 388 circumstantial 361 conduct of accused 375 confession as 368 conflicting not reviewed on appeal 472 corpus delicti 37rf declarations as 371 depositions at preliminary examination 385 destroying 135 expert 384 extortion 144 flight of defendant as evidence 375 hearsay includes what 383 hypothetical question must be based on 390 in abortion and seduction 1108 in arson 82 in assault to murder 91 in bigamy 1106 in breach of undertaking 713 in bribery 98 in burglary 103 in conspiracy 366 1104 in embezzlement 134 in false pretenses 156 1110 in forgery 161 in gaming 168 in homicide 203 in incest 210 in larceny 220 in perjury 242 790 INDEX. Page. Sec. Evidence in rape 250 In receiving stolen goods 259 In robbery 265 in threatened offenses 704 in treason 1103 instruction on failure to produce 418 in seduction 269 judicial notice 3&6 new trial for newly discovered 1181 objections to 474 of accomplice 363 of character of defendant 381 of experiments 383 of flight, instruction on 421 of motive 192 of other offenses, when admissible 378 offering false 132 \ on selling lottery tickets 1109 on trial for forging bank bills 1107 preparing false 134 preponderance to prove insanity 40 possession of stolen property as 220 presumptions of 387 privileged communications as 377 receivable before grand jury 919 reporter's notes as 386 reporter's notes at former trial, as 55 res gestae in homicide 195 review of on appeal 471 rules of applicable to criminal cases 1102 sufficiency of when reviewable on appeal 473 upon challenge to juror 335 when declarations are admissible as 371 when declarations of co-conspirator admissible. . 367 when prior difficulty may be shown in homi- cide 194 written statements by witness not admissible. . 56 motion to strike out, when allowed 476 necessary to find indictment 921 see Circumstantial Evidence. Examination, authentication of testimony at defendant may produce witnesses 866 defendant, protected from forced 56 postponement of depositions to be read at 864 exclusion of spectators at 868 of witnesses 359 of witnesses, presence of defendant 865 when to be completed 861 Exceptions by defendant, may be taken to what by defendant, when taken 1170 defined 464 how settled 1174 may be taken to what 1172 Excusable homicide 182 INDEX. 791 Page. Sec. Execution, date of may be changed 451 day of, where named 447 imprisonment pending part of punishment for murder 451 of death, penalty where to take place 1229' of judgment other than death 1213 order fixing date of 446 Executor, embezzlement by 506 Exempt fireman, officer issuing false certificate as.... 649 Exhibition of deformed persons 400 Experiments, evidence of 383 Expert evidence 384 Explosives, unlawfully keeping 375 Express company transporting game 627a Express malice, see Malice Aforethought. Extortion 143 by executive officer 70- by judicial officer 94 by threat to publish libel 257 defined 51& evidence 144 force or fear essential 143 forms for indictment 144 illegal fees 143 in obtaining signature ; 522 indictment for 144 kidnapping for 209 penalty for 144 520 penalty for attempt 524 sending threatening letters 143 523 under color of official right 521 what threats may constitute 519 Extradition 484 affidavit on information and belief 485 arrest and detention, proceedings on 485 illegal means used does not impair jurisdic- tion 484 power of governor on 485. proceedings for the arrest and detention of fugitives pending ISSO 1 proceedings must have been commenced in demanding state 485 trial only on charge for which demanded 484 warrant, when issued for fugitive 484 when matter of comity 484 Facts, assuming in instructions 404 issue of defined issues of, how tried 1042" False certificate by officer 167 False entries in books of corporations 146 form for indictment for 146 penalty for 146 792 INDEX. Page. Sec. False evidence, procuring of 241 False imprisonment 148 form for indictment for 148 defined 236 penalty for 148 237 False measure defined 552 False personation 149 defined 528 defrauding by 529 form for indictment for 149 in acknowledging instruments 529 of bail 529 penalty for 149 N to procure property 530 False pretenses 151 concerning birth of infant 156 distinguished from larceny 155, 218 doctrine of caveat emptor not applicable 154 evidence 156 evidence on trial of 1110 indictment and form for 157 intent of defrauded party not material 153 jurisdiction of Superior Court 49 negligence of defrauded party not material 154 obtaining property by 532 penalty for 156 property subject of 154 verdict 156 what are 153 False registration of animals 537J False reports, made by officer of corporation 564 False representations, married person selling land by 534 False signature necessary in forgery 160 False statement, consignee obtaining property by 536 False swearing, see perjury. False weight defined 552 Falsification of public records, no limitation 47 799 Faro, game of 168 Fear, alone, no justification of homicide 198 an element of robbery 264 essential to robbery 212 necessity of in extortion 519 Federal jurisdiction, depends on federal statute 44 does not attach by ownership of land 44 matter of defense 45 over Indians 45 Federal prisoners must be received at state prison... 1581 Felony, arrest for without warrant assault to commit 221 barred by statute, conviction of misdemeanor under not allowed 48 defendant must be present at trial of 1043 INDEX. 793 Page. Sec. Felony defined 33 17 dismissal not a bar in 1387 how punished lg impeachment of witness 349 imprisonment in state prison only in 450 limitation to certain 800 must be tried by jury 1042 preliminary examination cannot be waived 283 punishment for after prior conviction 666 statute of limitation on 47 when arrest may be made for 840 Females, exhibition in public places prohibited when.. 306 employing to sell liquor at theatres prohibited. . 303 see Abduction, see Seduction, see Rape. Ferry, crossing without paying toll 389 maintaining without authority 386 violating undertaking to keep 387 Fictitious bill, making, passing or altering 476 Fictitious instruments, making of not forgery 161 Fictitious name, signing of not forgery 160 Fine, defendant entitled to discharge on payment of. . 1457 duration of imprisonment to pay 1205 execution must issue for 1214 failure to pay over 427 from game laws, disposition of 631b how disposed of 1570 imprisonment by justice of the peace for non- payment of 1446 imprisonment by justice of the peace till paid.. 1456 judgment to pay a lien 1206 non-payment of, imprisonment for 449 violation of fish act, disposition of 637 when may be added to imprisonment 672 Fine and imprisonment, how imposed 448 judgment for, how executed 1215 Fire, larceny of goods saved from obstructing attempts to extinguish setting woods on Fire department, issuing false certificates Fi re arms, selling to Indians Fish, catching with seine closed seasons for placing screen in stream to prevent fish from running preservation of use of explosives in taking Fish ladder, when to be constructed Fish laws, fines under disposition of Flight, instruction on evidence of 4 as evidence 375 Flume, injuries to Foods, adulteration of disposing of tainted 794 INDKX. _ Page. Sec. Force to be used in making arrest 843 Forcible entry and detainer 41g 419 Ford, maintaining without authority 386 Foreign corporation, when director presumed to assent to proceedings 571 Forfeiture, none of property of convict 677 to specify ground 10 Forfeiture of bail, discharge of 1306 Foreman of grand jury, appointment of 902 oath of 903 to administer oaths 918 to present presentment to court 932 Forged instrument, attempting to pass 35 offering for record 115 Forgery 158 actual injury not essential 160 evidence 161 false signature necessary 160 form of indictment 164 guilty knowledge essential in uttering 161 how pleaded 965 idem sonans applies 161 indictment 163 indictment may be for one or all acts enu- merated 160 instruments susceptible of 158 470 intent to defraud essential 160 invalid instruments 159 making fictitious instruments not 161 making and uttering are both 160 making, passing or uttering fictitious bill 476 of bank bills, evidence on 1107 of entry in books of record 471 of seal 472 of telegraphic messages 474 or marking returns at election 50 passing or receiving forged paper 475 penalty for 164 473 signature by agent not 160 signing fictitious name not 160 variance 162 verdict 163 writings nudum pactum not subject to 159 Form for verdict by reason of insanity 440 Former acquittal, for variance 1021 what is 1022 Former offense, punishment after 666 Fraud by false personation 529 in destruction of vessel 539 in keeping books of corporation 563 in making second mortgage 538 in organization of corporation 558 INDEX. 795 Page. Sec. Fraud in stock subscriptions 657 in weights , 381 practiced to affect market. 395 Fraudulent bills, presenting for allowance 72 Fraudulently taking water 167 Freehold, severing from 602 Freight cars, putting passenger cars in front of 392 Fugitive from justice 484 admission to bail 1552 district attorney must be notified of arrest of. . 1553 duty of district attorney on arrest ol. . . '. 1554 from this state expense of apprehending and returning 1557 magistrates to issue warrant for apprehension of 1549 officer not entitled to compensation for procuring surrender of 1558 officer taking fee for arrest of 144 proceedings against to be returned to the super- ior court 1556 proceedings for the arrest and detention of 1550 when and what time to be committed 1551 when the party arrested to be discharged 1555 when to be delivered up 1548 Gambling, enticing to place of 318 see Gaming. Game, limit of day's bag of 626d netting or trapping of prohibited 631 preservation fund 631b shipments of must be labeled 627b transportation, of prohibited 627a trespass to kill 627 Game laws 171 disposition of fines from 631b forms for indictment 171 penalty for violation of 631a Gaming 168 banking game 168 court takes judicial notice of character of game 169 duty of officer to prosecute for 335 form for indictment 170 evidence 168 expert evidence of character of game 16y indictment 169 instructions on 438 penalty 169 permitting in house owned or rented pretending to give authority to conduct privileges of witnesses in prosecution for prohibited ones defined winning by fraudulent means witness refusing to attend trial 333 Gas, larceny of 49& Gaspipes, injury or destruction of 624 796 INDEX. Page. Sec. General verdict, form of 1151 Glanders, animal having to be killed 402} exposing animal with. 402 Gold coin, value of property by on punishment 678 Good behavior, credits for 451 1590 Goods made by convict, limiting sale of 679a Governor may declare county in state of insurrection 732 may grant reprieves, commutations and par- dons 1417 may offer reward for apprehension of fugitives 1547 may require opinion of supreme court on death judgment 1219 may revoke proclamation declaring insurrection 733 may suspend conviction of treason 1418 must communicate pardons, etc., to legislature.. 1419 to order out military when 725 transmission of conviction on judgment of death to 1218 Grand juror, acting after challenge allowed 164 disclosing fact of finding indictment 168 may be excused by judge when 297 oath of 904 qualification of 297 Grand jury, appointment of foreman 902 challenge to 298 challenge to individual grand juror 896 challenge to individual juror 894 challenge to panel 895 charge of court 905 decision of on challenge 898 disclosing what transpired before 169 duty and authority of 295 928 effect of challenge to individual juror 900 effect of challenge to panel 899 effect of dismissal of bill by 296 effect of dismissal of charge 942 entitled to access to prison 924 evidence receivable before 919 foreman to administer oath 918 foreman to present indictment 944 how composed 296 how selected 297 how summoned 297 matters to be inquired into by 923 may order suit to recover county moneys 929 member not to be questioned for conduct on. ... 927 members must declare knowledge of crime 922 not bound to hear evidence for defendant 920 number concurring in indictment 940 oath of foreman 903 objections to. how taken 901 obligation to secrecy 296 order for special 908 order for special, how executed 909 powers of 915 INDEX. 79? Page. Sec. presumption in favor of 296 resubmission of charge to 998 right of defendant before 296 secrets of to be kept 926 sending insulting letters to 112 special, how formed 910 term of existence 297 to return deposition when no indictment found 941 trial of challenge to 897 twelve to concur in presentment 931 when indictment ought to be found by 296 when special directed 907 when to be discharged 906 when to find indictment 921 when to investigate proceedings against corpor- ation 1395 who adviser of 925 who may be present at session of 925 witness defying 112 Grand larceny, assault to commit 220 defined 487 penalty for 489 see Larceny. Graveyard, see cemetery. Grouse, closed season for 62-J possession of in closed season 626k Guideposts, malicious injury to 590 Guilty, plea of, how entered 1018 plea of, how made 317 verdict of imports what 443 Gunpowder, destroying building by means of 601 endangering lives by means of 601 unlawfully keeping 37S Habeas corpus 478 application for, how made 1474 a remedy for what 4'78 burden on petitioner 481 concealing persons entitled to writ of 364 confining prisoners discharged on ?63 defect in commitment not ground of discharge 14SS defect of form of writ immaterial 149f denial does not bar another application 482 disposition of petitioner pending return 1494 effect of discharge for defective commitment.. 481 errors and irregularities not reviewable on.... 479 examples in which writ will lie 479 examples in which writ will not lie 479 hearing on return of writ 1483 inquires only into jurisdiction 479 r,ot appealable 481 office of writ 478 on commitment without probable cause 483 petition for, what to contain 1474 petitioner may be committed to legal custody.. 1493 proceedings on disobedience of writ 1479 proceedings on hearing 1484 798 INDEX. Page. Sec. Habeas corpus proceedings where commitment is de- . fective 1489 refusing to issue or obey 3G2 releases for conviction by court without legal existence 48 return on writ must contain what 1480 return to warrant 1500 to admit to bail 482 1286 " 1490 penalty for failure to issue or obey writ 1505 warrant may issue for persons charged with illegal restraint 1498 warrant on how executed 1498 when body must be produced 1481 when court must discharge 1485 when remand party 1486 when hearing may be had without body 1482 when imprisonment after discharge permitted. . 1496 when judge to remand 1492 when party may be discharged or remanded... 1501 when petitioner may be discharged 1487 when warrant may issue instead of writ 1497 when writ will issue out of county. 482 who may prosecute writ 1473 writ by supreme court returnable before super- ior 482 writ by whom granted 1475 writ must issue without delay 1476 writ to contain what 1477 writ how served 1478 writs and process, by whom issued and when returnable 1503 writs and process, when may be issued and served 1502 writs and process, where returnable 1504 Harbor, throwing overboard ballast in 613 Harbor tolls, unlawful collection of 642 Health laws, neglect to perform duties under 378 violation of 377 Hearsay evidence 383 Highway robbery, see robbery. Highways, malicious injury to racing upon 396 Homicide 173 being shown, defendant must justify 174 burden of proof 190 by accelerating or hastening death 173 circumstantial evidence of 197 death must result within a year and a day.... 173 evidence 202 evidence, character of deceased 197 evidence, dying declarations ' 200 evidence of corpus delicti 205 evidence of motive 192 evidence of threats by defendant 199 INDEX. 799 Page. Sec. Homicide evidence res gestae 195 evidence, statements and declarations of de- ceased 198 evidence, threats by deceased 198 evidence, when declarations part of res ges- tae '. 196 evidence, when prior difficulty may be shown.. 194 excusable 182 felonious, justifiable or excusable 173 felonious is murder or manslaughter 173 in defense of habitation .' 184 in defense of property 184 in mutual combat 187 in resisting unlawful arrest 185 in self defense 185 justifiable 182 magistrate must appoint reporter in 283 maps andi photographs as evidence 193 not justified by fear 198 not justified by threats 186 provocation sought by slayer 181 provocation sufficient to reduce to man- slaughter 18o self defense, apparent danger 188 self defense, duty to retreat 189 self defense, founded on necessity 190 self defense, killing in duel 190 self defense, plea not available when 190 self defense, present ability of assailant 189 self defense, sufficiency of danger 188 supervening circumstances, how affecting 173 venue 205 when accused to be discharged 199 when act causing death is malum in se 182 when act causing death is malum prohibitum . . 182 when evidence of drunkenness admissible 204 when excusable 195 when expert opinion admissible 193 when justifiable by person other than officer.. 197 when justifiable by public officer 196 when mutual combat is manslaughter 180 when officer justified in making arrest 183 when threats necessary to be communicated.. 186 see Murder. House of correction, when commitment made to 450 House of ill fame, see 111 Fame, see Seduction. Housebreaking, see Burglary. Humboldt Bay, depositing refuse in 612 Hunting in night time prohibited 626m Husband when not competent as witness 1322- Hypothetical instructions 405 Hypothetical question must be based on evidence.... 390 Hypothecated property, selling without consent 581 Idom sonans, doctrine of, applies to forgery 161 800 INDEX. Page. Sec. Idiot, cruel treatment of 361 incapable of committing crime 37 not punishable for crime 26 Ignorance of fact excuses crime 41, 371 Ignorance of law does not excuse 41 Illegal fees, extortion 143 III fame, enticing female into house of 270 keeping or residing in house of prohibited 315 putting wife into house of 270 Impaneling jury 332 Impeachment, articles of how prepared articles of to be delivered to whom 739 answer of defendant 744 disqualifies until acquittal 751 effect of judgment of suspension 750 judgment how pronounced 747 nature of judgment 749 no bar to indictment 753 of witness 349 of witness, instruction on 418 of lieutenant governor 752 officers liable to 737 pleadings of defendant 743 proceedings where no appearance 742 resolution of majority judgment 748 senators to be sworn on trial 745 service of defendant 740 service on defendant, how made 741 time of hearing 740 trial by senate 738 vacancy by, how filled 751 votes necessary to convict 746 Impersonation, see False Personation. Implied bias, ground of challenge to juror 1074 see Bias. Implied malice, see Malice Aforethought. Importing convicts ... 173 Imprisonment by justice of the peace for non-payment of fine 1446 competency of witness not affected by 675 false 148 for life 671 for non-payment of fine 449 in state prison how executed 1216 in state prison only in felony 450 judgment of by justice of the peace, how ex- ecuted 1455 second term to commence when 669 to pay fine, duration of 1205 when fine may be added to 672 when term commences 670 Imprisonment and fine, how imposed 448 801 Page. Sec. Incest 210 attempt to commit 210 defined 285 evidence ' 210 form for indictment 211 jurisdiction for 46 penalty 211 Incestuous marriage, solemnizing 359 attempt to contract 34 Indecent articles, character to be summarily determined 313 duty of district attorney to destroy 314 seizure of authorized .' . 312 Indecent exposures prohibited 311 Indians, federal jurisdiction over 45 selling firearms to 398 selling liquor to 231 397 Indictment 295 against superior judge 1029 allegation of asportation in larceny 224 allegation of intent in larceny 224 allegation of larceny as bailee 225 allegation of ownership in arson 81 allegation of ownership in larceny 225 defined 917 disclosing fact of finding 168 description of property in larceny 223 effect of order resubmitting 998 evidence necessary to find 921 first pleading by people 300 for abduction 73 for abortion 75 for adultery 76 for assault to murder 92 for assault with deadly weapon 87 for arson 80 for arson, allegation of intent 81 for bigamy 95 for bribery 98 for burglary 103 for embezzlement 135 for extortion 144 for forgery Ib6 for forgery may be for one or all acts enumerated 160 for fraudulently taking water 167 for gaming 169 for kidnapping and child stealing 213 for libel 230 for murder 206 for perjury 243 for rape 255 for receiving stolen goods ....'. 259 for resistance of public officers 261 for robbery 266 for selling liquor to Indians 231 form for 951 CRIMES--51 802 INDEX. Page. Sec. .Indictment, form for in assault 89 form for in arson 82 form for in bigamy .. . . . 96 form for in bribery 99 form for in burglary 106 form for in compounding crimes 108 form for in conspiracy 110 form for crime against nature 118 form for defrauding innkeepers 119 form for disturbance of the peace 12i form for in embezzlement 136 forms for in escapes 140 forms' for in extortion 144 form for false entries in books of corporations 146 form for in false imprisonment 148 form for in false personation 149 form for in false pretenses 157 form for in forgery 164 forms for in game laws 171 form for in gaming 170 form for in incest 211 form for in kidnapping and child stealing 213 form for in larceny 226 form for in libel 230 form for in mayhem 23t form for in murder 20a form for in perjury 245 form for practicing medicine without license. . . 236 form for injury to public jails 142 form for in rape 256 form for in receiving stolen goods 260 form for in resistance to public officers 262 form for in robbery 266 form for in seduction 271 form for in selling land twice 272 form for in selling liquor to Indians 232 form for in throwing vitrol 275 form for in train wrecking 277 form in trespassing 278 forms for in vagrancy 280 forms for violation of election laws 124 form for violation of sepulcher 273 grounds of demurrer to 1004 how presented and filed 944 impeachment no bar to 753 in what court found 890 motion to set aside, grounds of 995 must allege absence from state when relied on 47 must be certain as to what 952 must be found within thirty days 52 must show jurisdiction 46 number of jurors defined 940 number of jurors to concur in 296 preliminary examination not essential to 287 presentation of misdemeanor by, gives no juris- diction to superior court 49 INDEX. 803 Page. Sec. Indictment proceedings on, defendant not in custody.. 945 when found 296 803 witnesses to be endorsed on 943 see Information. Industrial school, no right to jury trial to commit to 55 I nf ancy denned 37 Infant, false pretenses concerning birth of 156 z abstitution of 157 to give security as witness 880 see Kidnapping, see Abduction. Inferior courts, no presumption in favor of 48 Ir.formation 282 effect of order to file new 998 r gainst defendant by fictitious name 953 ngainst several, one may be convicted or ac- quitted : . . . 970 allegations in must be direct and certain as to what 305 allegation of negative qualification 309 allegation of ownership 306 allegation of time 305 allegation of venue in 300 allowance of demurrer to, when a bar 1008 ambiguity ' fatal to 311 can only charge one offense 307 certainty as tt> time 955 conjunctive and disjunctive allegations in 310 construction of words in 957 defect of form not fatal 960 demurrer to, when proper 315 designation of offense 301 dismissal of no bar to further examination.... 315 effect of dismissal of on jeopardy 62 endorsements and signatures 311 exception to granting or refusing motion to set aside 1172 first pleading for people 300 for threatened offenses 701 form of 951 form of bench warrant on 981 grounds of demurrer to 1004 in language of statute sufficient 302, 304 judgment, how pleaded in 962 kinds of plea to 1016 like indictment in form 809 motion to set aside 313 motion to set aside when heard * 997 must be certain as to what 952 must be filed within thirty days . 52 must be for crime stated in complaint 287 must charge one offense 954 must state specific facts 303 must state sufficient facts 304 name of accused in . 802 804 INDEX. Page Sec. Information need not allege examination 285 no presumption in favor of 311 objections to, how and when taken 313 objections to, when waived by failing to de- murrer 1012 offense, how alleged 302 order setting aside not a bar 999 order setting aside when appealable 316 plea to, how entered 1017 pleading for selling obscene books, etc 968 pleading forgery 965 pleading larceny and embezzlement 967 pleading libel 964 pleading perjury and subornation 966 preliminary examination essential to 282, 287 presumption of law need not be pleaded in.... 961 presumption of time of filing 285 private statute, how pleaded 963 proceedings, if demurrer disallowed 1011 proceedings on resubmission of charge 1010 prosecution by, is due process of law 59 set aside, when other examination necessary for 284 statement as to injury 956 stating one offense, examples of 308 stating two offenses, examples of 308 surplusage does not vitiate 305 sustaining demurrer to defendant to be dis- charged when 1009 technical defects unimportant 305 to be in name of people 809 to be subscribed by district attorney 809 use of words of statute in 958 want of jurisdiction, how raised 305 what objections waived by not moving to set aside 99t> what to contain 950 when joinder, of counts permitted 309 when new may be filed 285 when set aside on motion 995 when special demurrer necessary 305 when sufficient 959 when to be filed 809 where prosecuted 889 Inhabited building defined 449 Injury, ability to inflict necessary to assault 85 to public jail, form for indictment for 142 Innkeepers, defrauding 119 form for indictment 119 penalty for 119 refusing to receive guests 365 Innocence, presumption of 65 of defendant presumed 1096 Insane defendant detained where 1372 expense of sending to asylum 1373 INDEX. 805 Page. Sec. Insane asylum, keeping liquor within one mile of.... 172 Insane delusion, how judged 39 Insane person cannot be tried or punished 1367 rot punishable for crime 26 Insane prisoners, disposition of 1582 Insanity, defense of, looked on with distrust 38 degree of mental unsoundness excusing crime. . 38 effect of 390 exonerates bail 1371 fixed, from drunkenness excuses 40 from drunkenness 39 Hadfleld's case 39 how determined 1221 inquisition of 1222 inquisition of, how certified 1223 inquisition of, proceedings on verdict 1224 instruction on 424 law of undergone changes 37 may be shown against judgment 1201 moral no defense 38 must be proved by defendant 40 order of trial 1369 proceedings on acquittal for. 1167 proceedings stayed for f . . . 1368 rule in McNaughton case 38 verdict by reason of, form 440 verdict on trial of 1370 when excuses crime 37 when presumed to continue 40 Insolvent bank officer, receiving deposit 562 Inspectors, see Election. Instructions 400 pmbiguous 411 approved 419 argumentative 404 assuming facts 404 construction of 408 contradictory 411 defining wilfully 418 duty of court to give few general 413 effect of requesting erroneous 413 erroneous followed by proper 408 exception to, when made 413 facts assuming in 404 how reviewed 415 inconsistent 411 invading province of jury 402 jury to take to jury room 413 modification of by court 410 must be in writing 416 on age of consent 436 on application to facts 414 on assault 434 on assault to commit rape 436 806 INDEX. Page. Sec. Instructions on assault to murder 4s3 on assault with deadly weapon 433 on authentication 417 on corroboration of accomplice 420 on corroboration of prosecutrix 437 on credibility of witnesses 400, 418 on crime 417 on consequence of acts 419 on conspiracy 420 on deadly weapon 434 on degrees of murder 425 on determining credibility of witness 420 on distrusting witnesses 407 on effect of impeachment 419 on escape 421 on evidence of flight 421 on facts 400, 402 on failure to call witness 420 on failure to produce evidence 418 on flight as evidence of guilt 421 on form of verdict in rape 437 on gaming 438 on impeachment of witness 419 on insanity 424 on intent 418 on intoxication 423 on malice 418, 434 on manslaughter 425 on murder 425 on necessity of force in rape 437 on penetration and emission 436 on perjury, administering oath 434 on perjury, materiality 435 on perjury, proof of false statement 435 on province of jury 418 on rape 436 on reasonable doubt 422 on scanning evidence of prosecution in rape... 437 on self defense 430 on weight of testimony 400 oral must be taken down by reporter 416 presumption of fact province of jury 406 reading statutes and decisions 410 requested 412 repetition of 411 should be hypothetical 405 should be with reference to facts 405 should not give judge's opinion on facts 401 surplusage does not vitiate 40& Instrument, false personation in acknowledging 529 invalid not subject to forgery 159 in writing, larceny of uncompleted 494 larceny of written 432 offering forged for record 165 susceptible of forgery 158 INDEX. 807 Page. Sec. Insurance by companies that have not complied with law 43!) presenting false proofs 549 Insurance company, defrauding of by burning 79 Insured property, fraudulent burning or destroying... 54$ burning of, see Arson. Insuring lottery tickets prohibited 324 Insurrection, governor may declare county in state of 732 governor may revoke proclamation declaring.. 733 resistance of process after 411 Intent, a question of fact in assault to murder 91 allegation of in larceny 224 depends on sound mindi 37 discovered from circumstances 36 effect of drunkenness on 36 element of every crime 20 essential to burglary 101 felonious in murder judged by result 176 how alleged in arson 81 how manifested 21 in assault 84 in embezzlement 134 in larceny 217 in robbery 265 judged from acts 35 law does not take cognizance of criminal 34 may be explained 36 necessary to constitute crime 33 of defrauded party not material in false pre- tenses 153 specific, when necessary 36 when law supplies to kill 177 I ntent to defraud & essential to forgery 1<50 Intent to destroy essential to arson 80 Intent to kill essential to assault to murder 90 essential to murder in first degree 179 may exist without malice 176 not necessary to constitute murder 175 Intention, absence of, as effecting criminal capacity.. 3T alone not punishable 34 when presumed from act 35 Intoxication, as affecting crime instruction on 423 involuntary, how affects criminal responsibility 40 physicians acting under influence of when admissible in homicide case 204 Interest unlawfully charging by pawnbroker Interments, unlawfully made Interrogatories, settlement of Invoice, false making of Involuntary manslaughter 181 803 INDEX. Page. Sec. Irons, right of defendant to appear without 59 Irresistible Impulse does not excuse crime 38 Issue of fact, when arises 1041 Issues on calendar, order of disposition 1048 Jail, form for indictment for injury to 142 injuring or destroying 606 Jeopardy attaches after jury is sworn 60 cannot be based on new trial granted on appeal 62 defendant cannot be put in twice 52 687 discharge for material variance does not con- stitute 61 discharge of jury for escape of does not consti- tute 61 does not attach where jury discharged by legal necessity or consent 60 effect of conviction of lesser offense 63 effect of dismissal of information 62 effect of statute increasing punishment 63 how pleaded 66 on conviction of lesser offense 1023 two offenses must be the same 61 what is 60 Joinder, when counts permitted 309 Judge, bias of, change of venue for 327 bribery of 92 may amend proposed bill of exceptions 467 may excuse grand juror 297 misconduct of 395 must admonish jury 341 must be present at trial 58 ol election, see Election. of Superior Court is magistrate 808 of Supreme or Superior Court may grant writ of habeas corpus 1475 should not give opinion on facts in instructions 401 Judgment and sentence 445 Judgment, arraignment for 1200 arrest of 458 cause may be shown against , 1201 certified copy of sufficient commitment 448 court may arrest on its own motion 1186 court must appoint a time for 1191 defendant in custody, how brought for 1194 defendant to be present at when 1193 duty of court on pronouncing 445 effect of affirmance on appeal effect of arresting essential to conviction ' execution, issue when for fine execution of fine and imprisonment, how executed how affected by appeal 463 how pleaded 962 how stayed by appeal 1243 INDEX. J-09 Page. Sec. Judgment, justice or constable purchasing 97 kind of on verdict 1155 motion in arrest of 458 1135 of appellate court, how entered 1264 on demurrer 1007 recitals in 445 to be entered, how by justice of the peace 1453 to be entered unless cause shown against 1202 void in part 446 when defendant to be discharged on arrest of.. 1188 when sufficient 445 arrest of. see Arrest of Judgment. Juc r ment roll, return on venire no part of 330 notice of motion for no part of 454 what constitutes 1207 Judgment of death, how executed 1217 not executed, proceedings after 1227 proceedings in case of pregnant woman 1225 when suspended 1220 Judicial notice 388 court takes of character of game 169 court takes of streets and numbers 50 of county seat 50 Judicial officer, asking for bribe 93 Junk-dealers, sections of code applicable to 344 certain cases of murder 790 concurrent when a bar 793 " 794 consent doeg not confer 48 courts of limited, no presumption in favor of.. 48 crime on vessel or car 46 crimes out of state, fruits of brought into state 44 defined 44 discharge of defendant for want of discharge of jury for lack of 1114 duelling out of state 45 effect of defendant for want of 1115 federal depends on statute 44 habeas corpus inquires into 479 how determined 48 illegally constituted courts, does not attach 48 indictment must charge facts to show 46 misdemeanors by indictment does not give Su- perior Court 49 not affected by failure to state time of offense. . 50 objections to, how taken 49 of abduction of accessory 791 of assaults 89 of bigamy 46, 96 785 of conspiracy : of contempt 112 of courts of general, presumed 48 of crimes committed partly out of state 44 810 INDKX. Page. Sec. Jurisdiction of crimes commenced out of state 45 of crime on boundary of county 46 of crime on Sunday 50 of escapes 46 787 of kidnapping 46 784 of magistrates in preliminary examination .... 286 of murder and manslaughter, death in different county 47 of murder and manslaughter, where injury in- flicted 47 of offenses on railroad car 783 of prize fights 795 of seduction 784 of stolen property taken into another county... 46 of treason 788 of treason, overt act out of state, any county.. 45 of trial court on reversal 49 offenses commenced outside of state . ' 778 offenses committed on vessels 783 offenses partly committed in two counties 781 offenses within the state 777 on appeal 460 original of Superior Court 49 over accessory, county of his offense 47 over crimes committed in two or more counties 45 over non-present principal 47 over persons leaving state to engage in duel . . . persons leaving state to evade laws of 795 proceedings on contempt must show 115 property taken from one county to another.... 786 spectator, prize fight 795 stealing property out of and bringing into state 789 stolen property brought into state, any county where brought 45 stolen property from other state 45 Superior Court of assaults 49 Superior Court of false pretenses 49 Superior Court of Nuisances 49 to try convict produced by illegal order 48 void penalty does not destroy 49 Juror, asking or accepting bribe, form for indictment 99 becoming sick during proceedings becoming sick after retirement of jury bribery of cannot impeach verdict 344 causes of challenge, how stated 1076 challenge for actual bias 336 challenge for cause, definition and kinds of. . . 1071 challenges for cause, how taken 1087 challenge for implied bias 339 1074 challenge to when taken 1068 challenge, how tried 1 078 challenge, when taken 334 challenged may be examined as witness or.... 1081 defendants jointly tried must join in challenge to 331 disqualification, when urged 340 INDKX. 811 Page. Sec. Juror, decision of court on challenge to, how entered 1083 defendant must make challenges first 1086 evidence upon challenge to 335 exception to and denial of challenge 1077 exclusion of not sworn, not denial of public trial 54 excusing for cause 335 exemption not ground of challenge 1075 foreigner not entitled to alien jury 55 general causes for challenges 1072 grounds for challenge for actual bias 1073 having knowledge may be sworn as a witness. 1120 improper attempt to influence *..> kinds of challenges to- 1067 number of peremptory challenges to 1070 particular causes for challenges 1073 peremptory challenges 333 peremptory challenges, how taken . 1088 peremptory challenge, when and how taken 1069 rules of evidence of trial of challenge to 1082 when opinion does not disqualify 1076 when opinion no disqualification 337 when ruling on challenge to reviewable 336 witness to be examined on challenge of 1082 Jurors, misconduct of 96 drinking liquors 341 reading newpapers 342 receiving evidence out of court 343 separating 342 Jury 329 amendment of challenge and withdrawal 1062 admonishing by court . . '. 341 1122 before justice of the peace, where to decide 1440 bound to receive law as given by court. 1126 challenges to before justices of the peace 1436 challenge of bias of summoning officer 1064 challenge to defined 1055 challenge to panel 331 challenge to panel, when and how taken challenged by defendants jointly indicted 1056 charging of court deemed open until verdict rendered court may advise to acquit decide law in libel 1125 defendant cannot consent to less than twelve . . 54 defendant has right only to lawful 335 defendant must be informed of right to chal- lenge member of 1066 defendant no right to particular juror 55 defendant's right to formalities in selecting. . 55 defendant waives by pleading guilty 55 denial to challenge may be oral 1063 disagreement of, power of court to adjudicate on Sunday 50 discharged for lack of jurisdiction effect of allowing challenge to panel effect of discharge for failure to state offense.. HIT effect of discharge of from necessity 60 812 INDEX. Page. Sec. effect of discharge without verdict 1141 exception to challenge, how taken 1061 how formed 1046 how summoned 330 impaneling 332 instructions invading province of 402 instruction on province of 418 legislature may deny right to trial by in petty cases 55 may be waived in misdemeanors 55 may be waived when 1042 may convict of lesser offense included in charge 1159 may decide where 1128 may return for information after retiring 1138 may take instructions to jury room 413 must be put in charge of sworn officer 1128 names to be called on return to court 1147 no right to trial by to commit to industrial school 55 oath to before justices of the peace 1437 order of challenges to 1087 presumption of facts within province of 406 receiving evidence out of court, new trial for. . 1181 room must be provided for on retirement 1135 right of defendant to 54 right of trial by, consisting of twelve men 54 right to challenge 331 right to trial by for commitment to Whittier... 55 selection of 329 separation of 1121 separating, new trial for 1181 to be supplied with food and lodging 1136 to determine law and facts in libel 251 waiver of before justice of peace 1435 what papers may take on retirement 1137 when court may allow alternate jurors 1089 when to be discharged 1140 when to be polled 1163 when to return to court 1147 see Grand Jury. Jury lists, adding names to falsely certifying 117 Justice court, proceedings before, how commenced.. 1426 see Justice of the Peace. Justice of the peace, affect of discharge of jury by... 1445 affidavits, how entitled before 1460 appeals from, when allowed 1466 appeals, how taken, heard and determined 1467 cannot charge as to facts 1439 challenges to jury before 1436 change of venue before 1431 conduct of trial before 1 438 defendant discharged on payment of fine when 1457 defendant must be personally present at the trial before 1434 INDEX. 813 Page. Sec. Justice of the peace, fines by disposition of 1457 defendant when admitted to bail 1458 defendant when to be discharged 1454 entitling affidavits in court of 1460 if jury discharged may be retried 1444 is magistrate 808 issue, how tried before 1430 judgment against prosecutor for costs 1447 1448 judgment of imprisonment until fine paid, how executed 1456 judgment of imprisonment, how executed 1455 judgment of, how to be entered 1453 judgment, when to be rendered 1449 jury may decide where 1440 may admit to bail 1458 may subpoena witnesses and punish disobedi- ence to subpoena 1459 motion in arrest of judgment 1452 must keep docket 1428 neglecting to pay over fines 427 new trial when granted by 1451 oath to jury before 1437 oath of officer taking charge of 1440 postponement of trial before 1433 procee'dings on changes of venue before 1432 purchasing judgment 97 verdict of before must be general 1441 verdict where defendants are jointly tried 1442 waiver of jury trial before when may imprison for non-payment of fine when to discharge jury without verdict 1443 Justices of Supreme Court are magistrates Justifiable homicide ....;. 182 see Homicide. Jurisdiction, want of, how raised 305 where inhabitant of state concerned in duel 779 where offense committed on county boundary line where principal not present Kidnapping ' 212 defined for purpose of extortion or robbery indictment and form 21 3 jurisdiction of penalty for 213 208 Kill, attempt to Knowingly, meaning of Label, must be on game shipments Labor by prisoner, rules and regulations confirming.. Labor organization, coercion not to join Land, married person selling by false representations selling twice 272 533 814 INDEX. Page. Sec. Landmark, maliciously injuring 605 Larceny 215 asportation 216 by bailee 218 by fraudulent games 332 defined 484 distinguished from embezzlement 218 distinguished from false pretenses 155, 218 distinguished from receiving stolen property.. 223 dogs susceptible of 491 evidence 220 form for indictment 226 goods saved from fire 500 grand 219 how divided 486 how pleaded 967 indictment, asportation, how alleged .. ... 224 indictment, bailee, how alleged .' 225 indictment, description of property 223 indictment, intent, how alleged 224 indictment, ownership, how alleged 225 intent 217 not included in burglary 223 of gas 498 of electricity 499a of lost property 485 of property after severing from realty 495 of property out of state 497 of record 113 114 of uncompleted instrument 494 of water 499 of written instruments 492 ownership of property 215 penalty for 226 possession of stolen property as evidence of. . 220 property subject of 215 time of taking 216 value of tickets 493 variance 222 venue 223 when allegation sustained 1131 Lascivious conduct towards children 288 Law questions to be decided by the court 1124 Lease, forgery of 470 Legal custodian, who is in abduction 72 Legal notice, destroying or tearing down 616 Lega! office, de facto officer, must have 48 Legally committed defined 285 Legislature, altering draft of bill 83 altering enrolled bill of 84 bribery by members of 88 bribing members of 85 members receiving bribes 86 INDEX. 815 Page. Sec. Legislature candidates for accepting assistance 63J contempt of 117 disturbance of meeting of 82 Legislature, governor must communicate pardons to, etc 1419 lobbying in 89 preventing from organizing 81 recommendations for pardon to be reported to. 1595 witness refusing to attend before 87 Lesser offense, when jury may convict on 1159 Letter, opening or publishing sealed 618 sending threatening 143 sending threatening to expose failings 650 when sending deemed complete 660 Levee, injuries to 607 Liberty, see Personal Liberty. Libel 228 comments on privileged report 255 defined -. 248 indictment for 230 form for indictment 230 jury judges of law and fact in 1125 jury to determine law and facts 251 liability of editors and publishers for malice presumed 250 penalty for 229 pleading in 964 privileged communications, what are 254 " 256 publication defined 252 purpose of law 228 signature to newspaper articles threatening to publish truth may be given in evidence 251 venue 230 Library, wilful detention of books of 623* License, carrying on business without having blank receipts for ^ pawnbroker must have pilot acting without 379 practicing medicine without 235 see Taxes. Lien of judgment of fine Life imprisonment is civil death Limitation, indictment when found in action for murder none for embezzlement of public moneys none for falsification of public records of f e4ony of misdemeanors statute does not run when defendant out of state 816 INDEX. Page. Sec. Liquors, jurors drinking, misconduct 341 keeping within one mile of insane asylum 172 keeping within one mile of state university.... 172 keeping within two miles of state prison 172 sale at theaters, prohibited 303 selling at camp meeting prohibited 304 305 Liquor, selling to Indians 231 397 form for indictment 232 penalty 232 Lobbying in Legislature 89 Lobster, closed season for 628 Locus delicti, must be proved as charged 51 Locus quo, jury may view 1119 Logs, defacing marks on 356 Lottery, aiding in carrying on 322 punishment for 323 denned 319 insuring tickets of prohibited 324 letting building for purposes of 326 property offered for distribution in forfeited.. 325 punishment for drawing 320 punishment for selling tickets in 321 tickets sale of 1109 Lumber, defacing marks on 356 Lunatics, cruel treatment of 361 incapable of committing crime 37 not punishable for crime 26 Maiming of animals , 597 Magistrate, action of in proceedings against corpora- tion 1394 arrested persons to be taken before 847 , defendant to be taken before without delay.... 825 defined S07 deposition before to contain what 812 duty of at close of preliminary examination. 293, 295 duty of at riot 726 duty of on taking bail 823 duty on failure of defendant to give bail 824 duty on proceedings under search warrant 1541 duty to inform defendant of right 858 duty toward defendant 291 duty when defendant brought before 858 duty when information laid before 811 exclusion of spectators by 868 exclusion of witnesses by 867 jurisdiction in preliminary examination 286 may orally order arrest 838 may order defendant searched when 1542 may order stolen property returned 1408 may recommit defendant released on bail when 1310 meaning of 7 must deliver stolen property to owner 1409 INDEX. 817 Page. Sec. Magistrate must examine witness before issuing search warrant 1526 must keep deposition 870 must notify district attorney of arrest of fugi- tive 1553 must return proceedings on arrest of fugitive to the Superior Court 1556 must supoena witnesses 864 neglecting to disperse rioters 410 officer delaying taking prisoner before 14& proceedings before 291 proceedings on presentment 93T proceedings where defendant taken before an- other 826 proceedings where offense triable in another county 827 to issue warrant for apprehension of fugitives 1549 to return papers to clerk 883 to send for counsel for defendant 859 suggestions to 288 what may admit to bail 1277 when and how defendant discharged by 871 when defendant to be committed by 872 when duty to hold defendant 283 when must appoint shorthand reporter 282 when to issue warrant 813 when to require undertaking from witnesses . . 878 who are 808 Malice, defined 35, 175 element of murder 33, 34 express, in murder, must be intent to kill 175 implied when 175 instructions on 434 intent to kill may exist without 175 meaning of 7 not ingredient of manslaughter 180 presumed 'from killing 9 176 presumed from wilful act 37 presumed in libel 250 Malice aforethought, defined 188 essential to murder 174 Malicious mischief, denned 594 effect of enumeration of acts constituting 595 Mandamus to compel preliminary examination 282 Manifest, making false Manslaughter 180 by carelessness 182 death in other county, jurisdiction for 46 death must be within a year and a day denned homicide in mutual combat when 180 instructions on 425 involuntary 181 jurisdiction for county where injury inflicted.. 47 malice not ingredient of 180 CRIMES--52 818 INDEX. Page. Sec. Manslaughter, penalty for 206 provocation sufficient to reduce wilful killing to 180 punishment of 193 voluntary 180 see Murder, see Homicide. Market, fraud to affect 395 Marriage, making false return of 360 promise of in seduction 268 proof of in bigamy 95 seduction under promise of 268 solemnizing incestuous 359 when a defense to seduction 269 Married person selling land by false representation.. 534 Married women to give security as witnesses 880 when punishable for crime 26 Marrying husband or wife of another 284 under assumed name 149 under assumed character 528 Marshal is peace officer 817 Mask, v/earing of 185 Mayhem 233 assault to commit 220 dafined 203 form of indictment for 234 penalty for 234 204 Meadow larks, destruction of 637a Medicine, mingling poison with, how punished 347 Medicine, practicing without license 235 form of indictment for 236 defendant must show license 235 emergency denned 235 penalty for 236 Mendicant, disposing of child for business of.. 272 Mercy, recommendation to not a part of verdict 443 Milestones, malicious injury to 590 Militia, aid of in suppressing riot 728 firing blank cartridges at mob 731 liability of officer for acts 731 must obey orders 729 when to be ordered out 725 Military, not affected by code 11 Military stores of the state, selling 443 unlawfully retained 442 Ministerial officer, see Officer. Minors, admission to place of prostitution 309 permitting to play in saloon 336 receiving pledge from 501 requiring to labor more than eight hours 651 selling tobacco to 308 when court may suspend judgment of conviction 1388 Miscarriage, advertising to produce 317 see Abortion. ! INDEX. 819 Page. Sec. M isconduct of attorneys 160 Misdemeanor, admission to bail in 829 aiding in, how punished 659 defendant may waive jury in 55 denned 33 17 dismissal a bar in 1387 Mgh and low, not recognized 33 how punished 450 19 iury may be waived in trial of 1042 limitation of 801 presentation by indictment gives no jurisdiction to Superior Court 49 'rial of may be had in absence of defendant. . 1043 statute of limitations on 47 when arrest may be made for 840 when may be compromised 1?77 Mr. meaner in office 237 penalty for 238 Mis:rision of treason denned 38 punishment of 38 Mcb, firing blank cartridges at by militia 731 Mock auctions, obtaining property by 535 Money, circulating paper as 648 i?suing paper to circulate as 648 of county, grand jury may order suit to recover 929 taken from defendant, duty of officer 1412 see Public Money. Monomaniac may be responsible for crime 38 Month, meaning of 7 Monuments, defacing 296 Monument defacing, see Sepulcher. Moral insanity, no defense 38 Mortgage, giving second fraudulently 538 Mortgaged chattels, removal of 537 Mortgaged property, removal of 502 Motion in arrest of judgment 458 to set aside indictment when heard 997 to set aside information, grounds of 995 to set asid? information objections waived by failure to make 996 to strike out evidence when allowed 476 Mountain sheep, killing of female prohibited 626e Murder 174 assault to commit 217 assault to, instructions on 433 death in other countv, jurisdiction for 46 death must be within a year and. a day defined 187 degrees of 177 189 degrees of distinguished 179 deliberation and premeditation denned 179 essentials of 174 820 INDEX. Page. Sec. Murder, felonious intent judged by result 176 form for indictment 209 imprisonment pending execution part of pun- ishment 451 in commission of another felony 176 in resisting arrest 177 indictment for 206 intent to kill essential to first degree 179 intent to kill may exist without malice 175 intent to kill need not be a particular person.. 176 intent to kill not necessary to constitute 175 intent to kill shows express malice 175 instructions on 425 insruction on, degrees of 425 jurisdiction for, county where injury inflicted.. 47 jurisdiction in certain cases of 790 killing must be with malice aforethought 174 law presumes killing malicious 174 malice an element 33 no limitation for action for 4< 799 penalty for 205 190 premeditation and deliberation in 179 presumption of malice 176 provocation not sufficient after cooling time . . 181 wanton recklessness 177 when burden of proof shifts on defendant 1105 when circumstances determine degree 178 when law supplies intent to kill 177 when means used show premeditation 178 when occasion of killing shows premeditation.. 178 see Homicide, see Manslaughter. Museums, injury to things deposited in 623 Mute, effect of defendant standing 65 1024 Mutilation of books in public libraries 623 Mutiny, see Disturbance of the Peace. Mutual corrbat, declining further struggle 187 right of self defense in 187 when is manslaughter 18C National guard, conduct of troops 731 member refusing to obey orders 653 must obey orders 729 officer failing to perform duty 652 Navigable stream, obstruction of 611 Neglect, meaning of Neglecting children 270 Negligence, criminal or criminal intent necessary to constitute crime 33 death by 368 369 wanton, killing by when murder 177 Net, catching fish with 634 certain declared nuisances 636a length of 636 Netting of game prohibited 631 INDEX. 821 Page. Sec. Newspaper, misrepresentation of circulation 538$ opinion founded on, no disqualification of juror 337 publications when contempt 112 publications of truth when not contempt 113 publishing cartoons 258 publishing portraits without authority 258 reading by jurors misconduct 342 signature to articles of personal character 269 when opinion founded on statement of, not dis- qualification to juror 1076 New trial 454 application for, must show what 455 application for, when made 454 1182 before justice of the peace 1451 defined 1179 effect of granting 458 1180 errors reviewable on 457 exception to granting or refusing 1172 grounds of motion for 454 granting within discretion of trial court 456 heard without bill of exceptions 458 in what cases granted 1181 notice of motion for no part of judgment roll 454 motion for cannot be amended after judgment.. 457 motion may be heard by successor of judge. . . . 458 en appeal to Superior Court 1469 ordered for defective verdict 1156 plea of once in jeopardy cannot be made be- cause of granting of 62 when granted 457 where to be had ' 1261 Night J-ne defined 103 450 463 disturbance of peace in 415 hunting in prohibited 626m when search warrant may be served in 1533 Nolle prosequi abolished 1386 Non residence prevents running* of statute of limita- tions 47 Non-suit, defendant not entitled to 390 Not guilty, effect of plea of 317 evidence admissible under plea of 1020 plea of, puts in issue what 1019 Note, forgery of 470 Notice of settling bill of exceptions 467 two appeals cannot be taken on one 462 Notice of appeal may be served by publication 1241 Notice of application for pardon, publication of 1422 when not required 1423 Nuisances, certain fish nets declared to be 636a extent of damage by 371 jurisdiction of Superior Court 49 maintaining of 372 Oath, authority to administer essential in perjury 242 defined 119 822 INDEX. Page. Sec. Oath, false is perjury '240 foreman of grand jury to administer 918 irregularity in administering not material in perjury 121 of grand jurors 904 of office, not basis of perjury 120 Objections to jurisdiction, how taken 49 Obscene books, etc., information for 968 Offense, but one can be charged in information 307 conviction of higher, effect of 1.023 defined 33 grand jury to inquire into 915 how prosecuted 888 punishment where no penalty prescribed 177 f information to charge but one 954 when evidence of other admissible 378 Office, buying appointments to 73 exercising functions of wrongfully 75 legal, de facto officer must have 48 misdemeanor in 237 refusal to surrender books to successor 76 removal from for neglect of duty 651 Officer, accusation against, failure to appear 761 accusation against, pleadings by 762 accusation against presented to grand jury 758 accusation against to be delivered to district attorney 760 action without qualifying 65 66 allowing convicts to escape 108 appeal from judgment of conviction for mis- conduct 770 arrest by 836 arrest without warrant, duty of 849 asking or receiving bribe 68 assault by . 149 authority to overcome resistance 723 certify resisters to court 724 code applies to administrative and ministerial, confining prisoners discharged on habeas corpus 363- delaying taking prisoner before magistrate 145 demanding illegal fees extortion 143 disclosing fact of finding indictment 168 disposition of stolen property by '- 407 disqualification of by conviction of crime duty of militia to obey civil when duty of on executing warrant duty to execute warrant 816 duty to inform governor of riot duty to prevent duels duty to prosecute for gambling effect of judgment of conviction for misconduct 770 embezzlement by 133 504 embezzlement and falsification of accounts by. . 424 extortion by 521 failure to pay over fine 427 INDEX. 82$ Page. Sec. Officer, false certificate by 167 form of accusation against 759 form of denial of accusation against 764 giving or offering bribe to 67 inhumanity to prisoners 147 interested in contracts 71 making arrest without authority 146 may break doors to liberate person acting in aid of 1532 may break doors to serve search warrant 1531 may prevent crime, how 697 misconduct of 758 must be allowed to inspect pawnbroker's regis- ter 343 must be sworn to keep jury together 1128 must certify to telegraphic copies of warrant... 851 need not disclose official character in arrest. . . . 291 neglecting to pay over public money objection to accusation against obstructing in collecting revenue omission of duty by pawnbroker refusing, to disclose sale to person acting as without appointment persons justified in aiding pretending to give authority to conduct gambling 337 proceedings after conviction for misconduct 7C9- proceedings on accusation 7Cfr process for witnesses on trial of accusation against refusing to aidi in arrest refusing to issue or obey habeas corpus refusing to make arrest railroad, making overcharges removal by summary proceedings 772 resistance of public 261 resistance of 148 retaking goods and custody of right of in making arrest 291 right to go armed 291 stealing or destroying records taking* fee for arresting fugitives tax, refusing to permit inspection of books to give receipt for property taken on search warrant to keep "record of stolen property trial by jury of accusation against 77 what constitutes resisting arrest by 183 when doors and windows may be broken when justified in homicide when justified in killing in making arrest 183 when must answer accusation who liable to impeachment see Sheriff, Coroner and Constable. 824 INDEX. Page. Sec. Officer, de facto, must have legal office 48 Officer of corporation fraudulently keeping books making false reports 564 Officer of insolvent bank receiving deposits 562 Officer of railroad company contracting unauthorized debts / 566 Officer of savings bank overdrawing account 561 Officers of state prison, duty of 1578 report of 1579 Official duty, omission to perform, when punishable.. 662 violation of, penalty 661 Official proceedings, true report privileged 254 Operator, bribery of postponement of telegraphic message by 638 use of information in telegraphic message 639 Opium, keeping resort for smoking 307 resorting to place where used 307 Order after judgment, exception to 1172 Overcharges, railroad officers making Overt act, necessary to attempt 35 when essential to conspiracy 184 Ownership, allegation of in indictment for arson 81 how alleged 306 in arson, definedi 452 in embezzlement 135 must be by another in robbery 263 Oysters, trespassing on beds of 602 Panel, challenge to 331 challenge to, grounds for 1059 defined 1057 see Jury. Parade with arms, who may 734 Pardons, application for 1420 district attorney must be notified of application for 1421 governor may grant 1417 publication of notice of, application 1422 recommendations for 1595 when notice of application not required 1423 Parent deserting child 271 neglecting child 270 insulting teacher . . . 654 Parties, how designated on appeal 1236 to criminal action 684 to special proceedings, how* designated 1562 Partnership, fraud in 358 Partridge, closed season for 626 killing of prohibited 626c possession of in closed season 626k Pawnbroker, conducting business of without license. . 338 charging unlawful interest 340 INDEX. 826 Page. Sec. Pawnbroker must allow officer to inspect register.... 343 must keep register 339 refusing to disclose sale to officer 342 unlawfully selling! pledges 341 Peace, commitment to keep 708 disturbance of in night time 415 effect of security to keep 707 security to keep * 697 security to keep, when required 714 undertaking to keep, when broken 711 undertaking to keep, where filed 709 when security to keep required 706 whose duty to preserve 720 see Disturbance of the Peace. Peace officer defined 817 meaning of 7 Penalty, necessary to constitute a crime 33 void, jurisdiction not destroyed by 49 where none prescribed 177 see Various Crimes. People, bias of, change of venue for 325 criminal action prosecuted in the name of 684 may appeal when 1238 not entitled to change of venue 327 pleadings of 300 949 when may appeal 461 Perjury 239 authority to administer oath essential 242 defined 118 deposition, when deemed complete in 124 evidence 242 form for indictment 245 form of oath not material 242 how pleaded 966 incompetency of witness no defense 122 indictment for 243 instructions on 434 irregularity in administering not material 121 knowledge of materiality not necessary 123 materiality of the false testimony 240 not predicated on oath of office 120 penalty for 245 126 procuring false evidence 241 punishment when procures execution of inno- cent person 128 subornation of 243 127 testimony of witness against himself 14 unqualified statement when is 125 upon what oath may be predicated 240 Personal liberty, infringement of 181 Personal property, meaning of see Property. Personation, see False Personation. Pesthouse, keeping within a town 373 826 INDEX. Page. Sec. Petit jury, see Jury. Petit larceny defined 488 and prior conviction, punishment for 667 penalty for 490 see Larceny. Petit treason abolished 191 Pheasant, killing of prohibited possession of in closed season 626k Phrases, how construed Physician, acting while intoxicated '. 346- Pictures, indecent prohibited 311 Pilot, acting without license 379 Plea 315 before justice of the peace must be oral 1429 essential to conviction 316 how entered 1003 kinds of 316 1016 must be oral 316 1017 no presumption of 317 of once in jeopardy, how made 65 raises issue of fact 1041 record must show 317 to jurisdiction, how taken 49 verdict must find on each 317 withdrawal of 317 Plea of guiity, court must determine degree on 1192 duty of court under 317 how entered 1018 must( be in person 317 no trial required on 319 is conviction 60 waives jury 55 withdrawal of 1018 Plea of not guilty, effect of 317, 318 puts in issue what 1019 Pleadings 300 errors, when not material in 1404 on part of defendant 1002 on part of people 949 tested by code 948 see Information and Indictment. Pledges, pawnbroker mut keep record of 339 receiving from minor 501 selling without consent 581 unlawful sale by pawnbroker 341 Plover, closed season for 626 possession of in closed season 626k Poison, administering 216 mingling with food, etc., how punished 347 Poisoning cattle 596 Police, attendance in exposed places 697 regulation of in cities 719 INDEX. 827 Page. Sec. Pol ice court defined 1 461 proceedings before, how commenced 1426 Police magistrate in towns or cities is magistrate.... 808 Policeman is peace officer 817 Poll of jury, when made 1163 Poll taxes, see Taxes. Pollution of water 248 Portrait publishing without authority 258 Posse comitatus, refusing to join 150 Possession of burglarious instruments 466 of deadly weapon with intent to assault 467 Postponement, disposition of defendant on *<>-! duty of magistrate on '. 292 of preliminary examination 292 of trial beyond sixty days, good cause for 53 of trial, when) made. 1 052 of trial beyond sixty days, when authorized 53 Pound defined 555 Pregnant woman, proceedings where sentenced to death 1225 warden must suspend execution of i226 Preliminary examination 282 cannot be waived in felony 283 commitment for, how made 292 defendants jointly charged no right to sepa- rate 282 depositions, when admissible at trial 385 duty of magistrate at close of 293, 295 duty of magistrate on postponement 292 essential to information 282,287 exclusion of spectators 293 exclusion of witnesses at 293 for information set aside 284 how testimony at authenticated 287 information need not allege 285 jurisdiction of magistrates in 286 may be compelled by mandamus 282 must be complete at one session 292 not essential to indictment 287 order admitting to bail on 293 order of discharge 293 postponement of 292 separation of witnesses 293 what defects in avoids conviction 285 when defendant to be held on 293 when to be 860 written confession sufficient 283 Premeditation defined 179 when means used in killing show 178 when occasion of killing shows 178 Preparation to commit crime defined 34 Presentment defined 91& number of grand jurors to be made by 931 823 INDEX. Page. Sec. Presentment proceedings of magistrate on 937 to be filed in court 932 when bench) warrant issued on 933 President of senate, when to act as prison director. . . . 1574 Presumption against error on appeal 469 as to character of defendant 382 as to evidence contained in bill of exceptions. . . 466 favorable to grand jury 296 in favor of bill of exceptions 467 in favor of jurisdiction of courts 48 in favor of record on appeal 462 none of plea 317 none of specific intent 36 none in favor of information 311 none that good cause existed for delaying trial 54 of continuance of life in bigamy 94 of intent from act 36 of insanity, once shown 40 of sanity 40 of responsibility for act 36 Presumption of fact for jury 406 Presumption of guilt on application for bail 66 Presumption of innocence 65 Presumption of law, need not be pleaded 961 Presumption of malice from] wilful act 37 Presumption of prejudice from error 471 Presumptive evidence 387 Previous conviction, verdict on charge of 1158 see Conviction. Primary election laws, offenses against 64$ Principals, aiding and abetting both necessary to make 42 by aiding in felony liable for any crime com- mitted 42 by aiding in misdemeanor not liable for felony not incidental 42 jurisdiction over, non-present 47 who are 31 Principal and accessory, common law distinction abro- gated 41 defined 41, 42 distinction between abrogated 971 Printing, collusion in furnishing materials for 100 Printing superintendent of interested in contracts for 99 Prior conviction in foreign state, effect of 668 kind of verdict on 440 punishment for crime after 452 066 when makes felony 451 see Conviction. Prison, carrying into things to aid escape 110 grand jury entitled to access to 924 taking contraband articles into 180a see Escapes. Prison director, when president of senate to act as. . . 1574 INDEX. 829 Page. Sec. Prisoner, assisting to escape . 109 credits for good behavior 451 deportation no part of punishment 451 discipline of 1592 form for conveying instruments to 141 how brought before court 1567 how classified in county jail 1599 in county jail must be actually confined 1600 inhumanity to 147 labor, limiting sale of products of 679a may be required to labor when 1613 officer allowing to escape 108 officer delaying taking before magistrate 145 on civil process 1612 removal of in what cases 1607 1608 rescue of 101 rules and regulations for discipline of 1576 service of paper on jailer for 1609 sheriff answerable for safe keeping of 1602 to be returned to county jail 1606 under life sentence, assault by 246 when discharged 28 Private statute, how pleaded 963 Privileged communications not admissible 377 Privileges of witness 354 Prize fights, jurisdiction of 795 leaving state to engage in 414 persons, present at 413 prohibited ". . . 412 see Disturbance of the Peace. Process, resisting after insurrection 411 Profanity, see Disturbance of the Peace. Probable cause, certificate of 468 1244 Proceedings before magistrate 291 on what continuances granted 323 when charge of threatened offenses is contro- verted 704 Process, abuse of is contempt 112 Promissory note, forgery of 470 Proof, burden of 388 defined 361 order of 476 of barratry 159 of venue may be indirectly 50 of venue must be made 50 Propagation, possession of animals and birds for not prohibited 624 Property, burning of 600 burning, not subject of arson 600 burning or destroying insured 548 fraudulently concealing, by debtor 154 fraudulently concealing by defendant 15S intent] to restore no defense in embezzlement.. 512 830 INDEX. Page. Sec. Property, larceny of lost 485 magistrate may order stolen to be returned to owner 1408 may be conveyed by prisoners 675 obtaining by false pretenses 532 obtained by mock auction 535 offered for distribution in lottery forfeited 325 officer to keep record of stolen 1413 ownership of in larceny 215 procuring by false personation 530 refusing to list to assessor 429 restoration, effect in embezzlement 513 stolen, court may order return of 1410 stolen, delivered by magistrate to owner 1409 stolen, disposition of unclaimed 1411 stolen or embezzled, disposition of 1407 stolen out of and brought into state 789 subject of embezzlement 131 subject to larceny 215 taken from one county to another, jurisdiction. . . 786 taken on search warrant, disposition of 1536 taken on search warrant, when restored 1540 value of, not material in robbery 264 value estimated in gold coin 678 what includes 7 Prospectus, unauthorized use of names in 559 Prostitution, abduction for 267 admitting minors to place of 309 enticing to place of 318 modes of 282 seduction for 266 see Seduction. Protest, meaning of 7 Provocation sought by slayer in homicide 181 sufficient to reduce wilful killing to man- slaughter 180 words of reproach are not sufficient 181 Public administrator, neglect of duty 143 Public improvements, injuries to 622 Public library, injury to books, etc., in 623 Public offense, information of before magistrate 811 Public office, omission to specify forfeiture 10 Public money defined 426 embezzlement of, no limitation for 47 officer neglecting to pay over 425 Public meetings, duty of officers to preserve peace at 720 Public nuisances defined 370 see Nuisance. Public records, no limitation for falsification of 47 799 Public trial, convenience of court not to be consulted 54 defendant entitled to 54 denial of, presumed prejudicial 54 exclusion of some not denial of right 54 purpose of explained 54 right of court to exclude witnesses and jurors. . 54 INDEX. 831 Page. Sec. Punishment 448 accessory 33 assault to rape 451 circumstances in aggravation or mitigation of.. 1203 circumstances in mitigation must be heard in open court 1204 court may receive evidence in mitigation of 445 duty of court to fix 12 " 13 for act punishable under foreign law 655 for prior conviction 452 mitigation of in contempt 658 only after conviction 681 prisoner cannot be deported as part of 451 property is valued in gold coin 678 where none prescribed 450 when two are prescribed 654 see Penalty, see Various Crimes. Quail, closed season for 626 killing of prohibited 626c possession of during closed season 626k Qualifying, officer must 65 66 Quarantine, violation of laws of 376 Quicksilver, counterfeiting stamps 366 selling debased 367 Racing upon high-ways 396 Rafts, burning or injuring 608 Railroad collisions, death from 369 jurisdiction of offenses committed on 783 malicious injury to 587 train wrecking on : 277 see Train Wrecking. Railroad company, employees of violating duty 393 officer of contracting unauthorized debts 566 officers of making overcharges 525 transporting game 627a unauthorized debt not invalid 567 Railroad tickets, counterfeiting 481 restoring cancelled 482 Rape 249 age of prosecutrix, evidence of 251 assault to commit ' 255 220 assault to commit, punishment 451 consent obtained by fraud 249 defined essential guilt of 263 evidence of 250 evidence of unchaste character 254 evidence of other acts of intercourse 253 form for indictment in ,. . 256 incapacity of defendant to commit 254 indictment for 255 instructions on 436 832 INDEX. Page. Sec. Rape, intoxicating and narcotic substances 249 object of fixing age of consent 250 penalty for 256 penetration, when sufficient 265 physical condition as evidence 253 prosecutrix need not be corroborated 252 public complaint as evidence 252 punishment for 264 under age of consent 249 what penetration sufficient 250 when capacity of defendant must be proved. . . . 262 when force an ingredient of offense 249 when immediate disclosure an element 250 Reasonable doubt, instruction on 422 Real property, fraudulent conveyances of 531 meaning of 7 Realty, after severing from to steal 495 Receiving stolen property 257 496 evidence 259 form for indictment for 260 indictment for 259 penalty for 259 thief may be accomplice in 259 venue 259 what acts necessary to show 257 Recommitment, contents of order 1311 of defendant, when ordered 1313 see Bail. Recess, meaning of 292 Recesses of court defined 50 Record, court may amend 399 forgery of entry in books of 471 no limitation for falsification of public 799 offering forged instrument for 165 115 on appeal 462 Re-direct examination defined 360 Referee, bribery of 92 Registration, fraudulent, how punished 42 see Election Laws. Religious meeting, disturbance of 302 Remedy, no right to particular 59 Remittitur, jurisdiction ceases on issuing of 1265 Removal from office, see Misdemeanor in Office. Removal of imprisoned witness 1333 Removal of mortgaged property 502$ Removal of officer, see Officer. Reporter, shorthand, magistrate must appoint in homi- cide cases 283 Reporter's notes as evidence 386 of former trial, as evidence 55 Reprieves, governor may grant 1417 INDEX. 833T- Page. Sec. Rescue of prisoners 101' retaking of persons from 854' Reservoir, injuries to 607 Resistance, authority of sheriff to overcome 723 officers certify to court persons making 724 to crime, any person may make 694 to crime, when lawfully made 692 to prevent crime 693 Resistance of public officers 261 148 form of indictment for 262 indictment for 261 penalty for 262 Resist! ng officer 69 Respondent, party adverse to appeal is 1236 Responsibility, law presumes, for act 36 Returns, see Election. I Revenue, obstructing officer in collecting 428 Reward for apprehension of fugitives 1547 Riding, fast on toll bridge 388 Right to bail, by defendant 66 Riot, arrest of persons engaged in 727 defined 404 duty of magistrate at 726 duty to inform governor of 728 punishment of 405 remaining after warning to disperse 409 suppressing 697 see Disturbance of the Peace. Rioters, magistrates neglecting to' disperse 410 1 Robbery 263 assault to commit 220 defined 211 evidence 265 fear essential to 212. form for indictment 266 indictment for 266 intent 265 kidnapping for 209 must be a taking from the person 264 nature of fear 264 ownership must be by another 263 penalty for 266 21$ taking must be against owner's will 264 value) of property not material. 264 Robbery of train 265 Rules of court, object of 398 Rout defined 406 punishment of 408 Sailor boarding houses, violation of law concerning.. 643 Sage hen,| closed season for 626 possession of in closed season 626k Salmon, closed season for 834 CRIMES--53 834 INDEX. Page. Sec. Saloon, payment of wages in 680 permitting minor to play in 336 Salvage, detaining property after payment 544 Sanity, law presumes 40 Savings bank officer overdrawing accounts 561 Screen, to prevent fish from running stream 629 ' Seal linchides what 7 forgery of 472 Seamen, enticing to desert 644 harboring deserting 645 Search warrant, authority of officer in serving 1531 by whom served 1 530 copy of inventory delivered to whom 1638 defined 1523 depositions for, to contain what 1527 disposition of property taken on 1536 duty of magistrate on receiving 1541 form of 1529 magistrate may order defendant searched when 1542 magistrate must examine witness before is- suing 1526 maliciously procured 170 must be executed within what time 1534 must be supported by affidavit 1525 officer to give receipt for property taken on ... 1535 proceedings where grounds of are controverted 1539 property taken on, when to be restored 1540 return on 1537 when may be served, in night 1533 when to issue 1528 when to be issued 1524 Second offense, effect of statute increasing punish- ment for 63 how punished 667 Second term, when to commence 669 Secret society, unauthorized use of badges of 543i Security to keep the peace 697 Security to keep peace, effect of 707 when required 706 714 Seduction 268 enticing female into house of ill fame 270 evidence 269 1108 for prostitution 266 form of indictment for 271 jurisdiction of 784 penalty for 271 previous chaste character 269 promise of marriage 268 under promise of marriage 268 when marriage a defense 269 Seines, certain declared nuisances 636a length of 636 INDEX. 835 Page. Sec. Self defense, instructions on 430 Selling land twice , 272 533 form for indictment 272 penalty for 272 Selling liquor to Indians 231 see Liquor, see Indians. Selling hypothecated property 53! Senate, president of, articles of impeachment de- livered to 7:59 trial of impeachment by 738 Sentence, amending before judgment 446 cumulative 451 defendant may waive time for 448 defendant must show cause against 447 illegal in part 446 Sentence and judgment 445 Separation of jury, when permitted 1121 Sepulcher, violation of 273- 290 form for indictment 273 Servant, when guilty of embezzlement 508 Sessions, as many as are judges 50 of court defined 50 meaning of 292 . authority to overcome resistance 723 Setnet, use of prohibited ". 636a Ship's register, false making of 541 Sheriff answerable for safe keeping of prisoners 1602 answerable for safe keeping of U. S. prison- ers 1602 compensation for transporting prisoners 1586 conditions of receiving person committed under civil process is peace officer duty to receive persons duly committed 1611 duty to receive prisoners in county jail 1601 form of commitment to for examination 863 'how to execute judgment of imprisonment 1216 neglecting to pay over fine papers served on for prisoner 1609- permitting prisoner to escape 108 refusing to receive or arrest parties accused of crime 1 42 when disqualified to summons jury 330 when to summons special grand jury 909 when warrant directed to 818 Signals, injuries to 615 masking or removing 610 Sodomy, see Crime Against Nature. Soil, removing from land of another ; 602 Sound mind, intent depends on 37 who are of - 1 836 INDEX. Page. Sec. Specisl proceedings, parties to how designated 1562 witnesses may be subpoenaed for 1564 Specirl verdict, form of 1154 how prepared and entered 1153 proceedings on 1166 to contain what 1152 Speedy trial, right of defendant to 686 Squirrels, closed season for 626g State includes what 7 State prison contracts must be by public letting 1587 disposition of insane persons 1582 duty of officers 1578 imprisonment in, only in felony cases 450 keeping liquor within two miles of 172 officers' report 1579 under control of board of directors 1573 State prison directors to adopt rules and regulations of discipline cannot contract debts 1585 compensation of , 1575 further powers 1594 may appoint warden, and other officers 1577 to make rules and regulations 1592 to report credits to governor, when 1593 State prison fund, what is 1583 how disbursed 1584 State reform school, see Whittier School. State treasurer, neglect of duty by 441 State university, keeping liquor within one mile of 172 Statement, making false concerning assessment 430 Statute, language of in information 958 Statute of limitations, absent from state, does not run while 47 conviction of misdemeanor barred by, under felony indictment 48 for crimes 47 imperative bar 48 not waived by asking continuance 48 Steal, see Larceny, Robbery, Burglary. Steamboats, management of 348 Steamboilers, management of 340 Stockholder, right to inspect books of corporation.... 565 Stolen property, from foreign country, no jurisdic- tion 45 from out of state, jurisdiction any county where brought 45 out of the state, receiving in 497 receiving 496 receiving distinguished from larceny 223 recent possession of as evidence of larceny. . . . 220 taken into another county, jurisdiction for 46 see Receiving Stolen Property, see Property. INDEX. 837 Page. Sec. Stream, placing screen in to prevent fish from enter- ing 629 Streets, court takes notice of 50 Striped bass, taking prohibited 628 Subornation of perjury 127 see Perjury. Subpoena defined '. 1326 disobedience of by witness ....... 1331 form of 1327 how served 1328 justice of peace may issue 1459 justice of peace may punish for disobedience of 1459 who may issue 1326 Successor, refusal to surrender books to 76 Suicide, encouraging 400 Summary proceedings, removal of officer by 772 see Misdemeanor in Office. Summons, form of in information against corporation 1391 how served 1392 Summons to grand jurors 297 Summons to trial jurors 330 Sunday, jurisdiction of court on 50 open barber shops afternoon prohibited 310$ Superior court appeal to, how taken and heard effect of dismissal of appeal to 1470 indictments to be filed in 890 jurisdiction in court not department of 50 jurisdiction in assaults 89 jurisdiction vested in court, not judge 50 may grant writ of habeas corpus new trial on appeal must be had in 1469 offenses triable in 888 original jurisdiction of 49 statement on appeal to indictment against 1029 see Judge. Suprem.e Court, jurisdiction on appeal 460 may grant writ of habeas corpus 1475 must give opinion to governor on judgment of death 1219 proving bill of exceptions in 465 Sureties, see Bail. Surplusage does not vitiate instruction 409 see Information. Swearing falsely, see Perjury. Tax collector, employer refusing to give names of employees to Taxes, collecting without giving receipt making false statement concerning assessment Tax officer, neglect of duty by refusing inspection of books Teacher of public school insult of by parent 654 838 INDEX. Page. Sec. Telegraph line, malicious injury to 591 Telegraph operator, intoxication of 391 see Operator. Telegraphic message, altering 620 clandestinely learning contents 640 disclosing contents of 619 forgery of 474 opening without authority 621 postponement of 638 use of information from by employees 639 Tenant, embezzlement by 507 Term, commencement of imprisonment 670 Terms of court, none in California 50 Testimony, authentication of at preliminary examina- tion 287 before coroner's inquest to be in writing exception to admission or rejection 1170 instructions as to weight of 400 materiality of false in perjury 240 123 of accomplice must be corroborated 364 right of defendant to have conditionally taken.. 686 Theatres, sale of liquor at prohibited 303 Threatened offenses, examination of witnesses 702 information for 701 party complained of when discharged 705 proceedings when controverted 704 when warrant issued for 703 Threatening letters, sending 143 sending to extort property 523 see Extortion. Threats by deceased in homicide 198 of assault in court, security for 710 to obtain signature 522 to publish libel verbal attempt to extort by 524 what sufficient to constitute extortion 519 when necessary to be communicated 186 will not justify homicide 186 see Extortion. Throwing vitrol 275 form for indictment 275 penalty for 275 Tidewater, what deemed in meaning of fish laws.... 634" Time, certainty as to information 955 how alleged 305 of offense, not stated, does not affect jurisdic- tion 50 Timber, injuries to 602 see Trespassing. Title, claim of defense in embezzlement 511 Tobacco, selling to minors, prohibited 308 Tollbridge, crossing without paying toll fast riding and driving on 388 INDEX. Page. Sec. To Ihouse, malicious injury to 589 Tombs, defacing 296 see Sepulcher. Ton defined 555 Torturing animals 597 Trademarks, defacement of 354J Trademark defined 353 counterfeiting 350 refilling casks bearing 354 selling goods bearing counterfeit 351 unlawful use of 354$ Train dispatcher, intoxication of 391 Train robbery 265 Train wrecking 276 defined 218 punishment for 218 form for indictment 277 penalty for 277 , Transcript on appeal, duty of clerk to print 463 Transportation of game prohibited ''._7-i Trapping, prohibited 631 Treason defined evidence on trial for 1103 governor may suspend conviction of 1418 jurisdiction of 788 overt act out of state, jurisdiction any county.. 45 punishment of 37 Treasurer of county, receiving private deposits 180 Trespass defined 602 to kill game upon water ditches : what is not Trespassing 278 form for indictment in 278 penalty for 278 Trial, absence of defendant must be shown 58 accessory, place of accessory, what county 51 accessory, when cannot be postponed more than sixty days.... 53 conduct of before justice of the peace delay of unexcused beyond sixty days entitled to dismissal defendant entitled to speedy and public 52 defendant must have time to prepare for defendant ordered in custody at exclusion of witnesses during 358 good cause for postponement beyond sixty days must be shown by people 54 judge must be present at 58 meaning of speedy 52 order of order of when may be departed from 840 INDEX. Page. Sec. Trial, postponement of before justice of the peace.. 1433 postponement of may be made beyond sixty days, when 53 postponement of waived by going to trial 53 postponement of when 1052 separate, when had 1098 when defendant must be present 67 Trial jury, how formed 1046 see Jury. Trout, closed season for 632 Trustee, embezzlement by 506 Umpire, bribery of 92 Unclaimed stolen property, disposition of 1411 .Undertaking, evidence of breach of 713 forfeited for failure of witness to appear 1332 for witness 358 from witnesses 878 suits upon 712 to keep ferry, violating 387 to keep the peace 709 to keep the peace, when broken 711 see Security. United States Senator, election promises by 63 Unlawful assembly defined 407 punishment of 408 see Disturbance of the Peace. Unlawful killing either murder or manslaughter 174 Usurpation of office 75 Vagrancy 279 forms for indictment 280 penalty for 280 Vagrants defined 647 Variance, discharge for material does not constitute jeopardy 61 former acquittal for effect of 1021 in forgery 162 in larceny 222 Venire, return on no part of judgment roll 330 Venue, application for change when made 326 application for change when granted 1034 affidavits on change of 325 change for bias of judge 327 change for bias of people 325 change of before justice of the peace 1431 change of proceedings on 1432 change of transmission of papers on 1038 defendant may except to refusal of change .... 1173 description in indictment for arson 81 how alleged 300 in burglary 102 in embezzlement 134 In homicide 205 in larceny 223 INDEX. 841 Page. Sec. Venue in libel 230 judgment arrested for variance 51 grounds of change of 1033 must be proved 50 no change on application of the people 327 order making change of 1035 proceedings before magistrate offense triable in another county 827 proceedings on change of when defendant in custody 1037 where not in custody 1036 proof of may be indirectly 50 receiving stolen goods 259 when proved 50 Verdict 439 amending 443 as to sanity and proceedings on 1370 assault to murder 92 before justice of the peace, how delivered and entered 1441 before justice of the peace where defendants jointly tried 1442 by lot, new trial for 1181 contents of 441 contrary to law or evidence, new trial for 1181 court deemed open until rendered 1142 court may direct reconsideration of 1160 effect of discharge of jury without 1141 in assault 88 in burglary 105 in false pretenses 156 in forgery 163 in insanity 440 effect of general 440 general defined 440 judgment to be rendered on 1155 juror cannot impeach 344 kinds of 440 kind on prior conviction 440 manner of taking 1149 may be general or special must find degree 1157 must find on each plea 317 necessary to conviction 689 of guilty imports what 443 of jury at coroner's inquest 1514 proceedings on receiving 439 recommendation to mercy not a part of 443 recording of 1164 upon previous conviction 1158 special 441 special effect of 441 where defendants jointly tried 1160 when defendant must be present at rendered. 1148 when judgment may be given on informal 1162 when jury authorized to fix punishment 442 842 INDEX. Page. Sec. Verdict, when jury should find general 442 when justice of the peace to discharge jury without 1443 when special defective, new trial ordered 1156 when sufficient 1161 Vessel, enticing seaman to desert from 644 fraudulently destroying 539 jurisdiction of offenses committed on 783 jurisdiction of crime on 46 masters of, violating quarantine laws 376 meaning of 7 mooring to buoys 614 punishment for destruction of 539 540 setting adrift 608 Vitrol, throwing 275 244 Voluntary intoxication no excuse for crime 39 Voluntary manslaughter 180 see Murder, see Homicide. Voting, see Election. Voting, fraudulently at election 45 Wages, payment of in a saloon 680 Warden, how appointed 1577 must suspend execution of pregnant woman . . 1226 Warehouse receipts, issuing fictitious when punishable 579 Warrant, by whom executed defendant to be taken before magistrate issuing 821 duty of officer executing 828 form of 289 814 1427 how executed in other counties 819 indorsement for service in other counties 820 maliciously procured 170 may be telegraphed 850 officer must follow in making arrest 848 telegraphic copies by certified officer 851 to contain what '. 815 to whom directed 816 818 when issued 289 when issued by coroner 1517 when issued for threatened offenses 703 when magistrate to issue 813 when may issue instead of writ on habeas corpus 1497 when must be shown 842 without, duty of officer 849 of coroner, form of 1518 of coroner, service of 1519 Water ditches, trespass upon 592 Water, form for indictment for fraudulently taking. . 167 fraudulently obtaining from main 625 larceny of 499 INDEX. 843 Page. Sec. Water, polution of 248 636 Waterpipes, injury or destruction of 624 Weapons to be taken from arrested person 846 deadly see Assaults, see Disturbance of the Peace. Weights and measures, defrauding with 381 marking or using false 554 use of false 553 what must ^e used 555 Whittier school, commitment to without jury trial. . 450 right to jury trial for commitment to 55 Wife, when not competent as witness 1322 Will, absence of, as affecting criminal capacity 37 forgery of 470 impairment of does not excuse for crime 38 includes codicil 7 Wilful, meaning of 7 Wilful act denned 35 Witnesses 346 about to leave the state conditionally for de- fendant 1336 accused to be confronted by, against him 55 application for conditional examination, how made 1337 where made " 1338 attendance for conditional examination, how enforced 1342 attendance of served out of the county 1330 bribery of 137 cannot be .compelled to be against self by con- tempt proceedings 113 commission to examine out of the state 1349 commitment on failure to give security 881 conditional examination of when stopped 1341 conditionally examined in the absence of the district attorney 1340 conditionally examined testimony, how taken. . 1343 conditionally examined when 1335 compelled to attend coroner's inquest 1513 compelling attendance of 357 competency of 346 competency not affected by imprisonment 675 continuance for absence of 321 credibility of 347 deceiving 133 defying grand jury 112 defendant as 355 defendant does not waive privilege as, by testi- fying 56 defendant may be discharged to be 109$ defendant may waive right to be confronted by 56 defendant not compelled to be against himself 688 52, 56 1323 deposition of imprisoned 1346 844 INDEX. Page. Sec. Witnesses, disobedience of subpoena by 1331 examination of 359 examination in presence of defendant 292 865 examination for threatened offenses 702 exclusion of 293 exclusion during trial 358 exclusion of at examination 867 exclusion of, not denial of public trial 54 from without the county, expenses of 1329 impeachment of 349 impeachment by contradictory statements 351 impeachment by reputation 350 impeachment, conviction of felony 349 in election cases no prosecution against 64 incompetency of in perjury no defense 122 infants and married women to give security as 880 instruction on credibility of 400, 418, 420 instruction on distrusting 407 instruction on failure to call 420 instruction on impeachment of 419 juror having knowledge may be sworn as 1120 magistrate to require undertaking when 878 may be supoenaed for special proceeding 1564 names of to be endorsed on indictment 943 offering to receive bribe 138 order for conditional examination, where made 1339 what to contain 1339 out of the state when defendant may examine on commission 1350 party cannot impeach his own 354 preventing attendance 136 privilege of 354 Iiivilege of in prosecution for dueling 232 privilege of in prosecution for gaming 334 refusing to attend before legislature 87 refusing to attend trial for gaming 333 residing out of county, attendance of 1330 right of defendant to be confronted with 52 686 right to be confronted by, exceptions to rule.. 55 separation of 293 temporary removal of imprisoned 1333 to be summoned on coroner's inquest 1312 testimony, how authenticated 869 unable to give security, deposition to be taken 882 undertaking for 358 undertaking forfeited for failure to appear .... 1332 when defendant may be discharged when evi- dence is insufficient 1100 when deposition of conditionally examined may be used 1345 when husband and wife not competent 1322 when party can contradict own 354 when security from required 879 who competent as 1321 written statements by not admissible 56 INDEX. 845 Page. Sec. Women, abduction of 26* sae Seduction, Abortion, Rape, Married Women. Woods, injuries to 602 setting on flre 384 Words, construction of 7 construction of in information 957 of statute use of in information 958 Wounding animals 597 Wrecked property, destroying marks on 355 detaining 544 unlawful taking of 54& Writ, meaning of 7 Writ of habeas, see Habeas Corpus. . Written instrument, injuring or destroying 617 Writing, indecent prohibited 311 tTY OF CALIFORNIA *8 ANGELES ~