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Criminal law and procedure of California including the penal code of California online

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10 Penal Code 412.



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122 CRIMINAL LAW AND PROCEDURE.

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.' '

FORM — ^VULGAR LANGUAGE WITHIN THE PRKSENCE 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."

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.



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CHAPTER XVIII.'



ELECTION LAW, CRIMES AOAINSTT.



The statute includes all persons who wilfully cause or
procure or allow false registrations.^ Fraud in voting is
a conclusion of law to be drawn from the facts, which must
be alleged, showing disqualification of |(^e voter by alleg-
ing the facts. An allegation of fraud in ge^fijdterms and
the allegation that the defendant was not enti^M^to vote
are merely conclusions of law, and present no ^g^Mble
facts. The material facts necesssary to be charged to ot^^j^
a disqualification to vote are those facts prescribed by the^v^,^
constitution and the code as constituting the qualifications ^
and creating the disabilities of electors.* 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.^ Evidence of hand-
writing alone is insufficient to justify a verdict of guilty
under the charge of altering election returns.*

PENALTY.
[Section numbers below refer to Purity Act. statutes 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.

8 People V. Burns, 75 Cal. 627.
* People V. Buckley, 116 Cal. 146.



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124 CRIMINAL LAW AND PBOCBDURS.

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 or 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.
[Piu-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 th^

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



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ELECTIONS. 125

second time by ballot, then and there 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]



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126 CRIMINAL LAW AND PROCBDURB.

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 writiror 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 ar said election, and for
what office, with the number of votes given tor 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 D received in said

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1. HERRiNGTON.

ELECmONS. 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.^

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.

1 People V Buckley, 116 Cal. 146; People v. Egan, 116
Cal. 287.



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128 CRIMINAL LAW AMD PROCEDUBB.

FORM — NEGLECT OF DUTY BY OFFICERS.
[Section 29, Purtty Act.]

[Proceed 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 sig^, certify, and attest, as required by law,
true and correct tally lists and attach to said tall y 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 OFFICERb.
[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
and canvassed there, said A B wilfully, unlawfully, and
feloniously interfered with the regular election officer of



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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 w^hile 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 well 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
CRIMCS - 9

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130 ORiBiiNAL Law and procedure.

among other places where said election was held on said
iddy, and where votes were authorized to be cast, was the

polling place of , in the precinct of said

rounty; that at and during said election and at all times
hereinafter mentioned, said A B was a regularly appointed,
^qualified, and acting inspector of said election board of said

precinct ; that among others who were voted for by

the ek^tofs 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 talh inpf 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 clerkx)f election in the

election precinct of said county.



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CHAPTER XIX.



[Penal Code. sees. 503-514.]



DEFINED.

Embezzlement is the fraudulent appropriation of prop-
erty by a person to whom it has been intrusted.* The
essential element of the offense is the fraudulent conversion
or misappropriation by^ the defendant of property received
by him in a fiduciary capacity.^ 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.' 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 EMBEZZLEhIeNT.

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.*

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 deferfdant ; in
other words, there must be a proof of a fraudulent conver-

1 Penal Code 503; People v. De Lay. 80 Cal. 6 J.

2 People V. Wyman, 102 Cal. 552; People v. Gordon, 133
Cal. 328.

« People V. Gallagher, 100 Cal. 466.
* People V. Williams, 60 Cal. 1.



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132 CRIMINAL LAW ^ND PROCKDURK.

sion,*^ 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 f or where the county assessor col-
lects moneys and does not return them to the office.® 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.^® And where the property is taken under a claim of
title made iii good faith by the defendant, it is not embez-
zlement.^^ But an offer to return the stolen property is
not a defense, nor is the giving of an indemnity ;^^ nor is
the actual restoration of the property any defense.^' 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,^*

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. ^'^ But no demand is necessary upon one

n People V. Wyman, 102 Cal. 552.
« People V. Leonard. 106 Cal. 302.

7 People V. Tread well, 69 Cal. 229.

8 People V. Cobler, 108 Cal. 538.
People V. Page, 116 Cal. 386.

10 People V. O'Brien, 106 Cal. 104.

11 People V. Lapique, 120 Cal. 25.

12 People V. De Lay, 80 Cal. 52; Penal Code, 518.

13 People V. Royce, 106 Cal. 173.

14 People V. Blackman, 127 Cal. 248.
i» People V. Wyman, 102 Cal. 552.



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EMBEZZLEMENT. 133

collecting money without authority.^' 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.*"

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.*® 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 ov^Ti use with intent to steal the same."
The essential elements of the crirw aie the fiduciary rela-
tion which arises where one intrusts pl^bgrty to another,
and the fraudulent appropriation thereof by^!$^latter.*®

The agent is estopped to deny the receipt ot •tewnoney
in the course of his agency, where the money nisQ>^ai
ostensibly received as such.^* 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.-*

BY A PUBLIC OFFICER.

The mere omission of a public officer to pay over money
received by him is not sufficient to convict ;^^ as he might
retain it under a claim of right.^^ And there must be a

i« People V. Van Ewan, 111 Gal. 144.

17 People v. Tomlinson, 66 Cal. 344.

18 People V. Doane, 77 Cal. 560.

i» Ex parte Hedley, 31 Cal. 109. The cases of Bx 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 t^eople V. Gale, 77 Cal. 120.

28 People V. Westlake, 124 Cal. 452.

24 People V. Carrillo, 54 Cal. 63; People v. Hamilton. 103
Cal. 489.



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134 CRIMINAL LAW AND PROGBDUBK*

demand shown before the officer can be charged with guilt
unless the evidence otherwise shows that the money was
appropriated with felonious intent.^* But where an
assessor makes no return to the office of the moneys col-
lected, it is proof of conversion.^* And where the evidence
shows that the officer paid out more moneys than he
received, a verdict of conviction will be reversed.-'

INTENT.

The fraudulent appropriation and conversion must be
shown to establish the intent.^* The felonious intent is a



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