California Charles Howard Fairall.

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

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82 People V. Eppinger, 105 Cal. 36.
88 People V. Phillips, 70 Cal. 61.

84 People V. Creegan, 121 Cal. 554.

85 People V. Sanders. 114 Cal. 216.
88 People V. Smith. 103 Cal. 563.
87 People V. Baker, 100 Cal. 188.



CIIIMCS - 11



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162 CRIMINAL LAW AHD PBOOEDURB.

evidence of the non-existence of the person whose name is
signed to the check,'* but testimony of the teller of the
bank, on which the check was drawn, that no person by
the name signed thereto, had an account on the books of
•the bank, is prima facie evidence of its fictitious character,'*
and for the same purpose the city directory and the great
register are admissible.** And evidence of a fruitless
; search for the person whose name is forged may be intro-
^duced.** The burden of proving that the name was signed
without authority is on the people.** But the want of
authority is shown when the person, whose name is signed,
testifies that he did not sign, nor authorize the defendant
to sign.*' Enlarged photographs of the writing may be
introduced in the discretion of the court.** Expert evi-
dence as to means of removing writing is admissible.**

VARIANCE.

A slight variance in the spelling of the name of the per-
son to be defrauded is immaterial,** and a variance in the
spelling of a word in the forged instrument will not exclude
it. Its import is proper for the jury to pass upon,*^ and a
variance that in no manner alters the signification of the
instrument is immaterial,*' as where the indictment for the
forgery of a mortgage, alleges no certificate of acknowledge-
ment on the mortgage, and the mortgage offered in evi-
dence has such certificate.*® Where the only evidence to
sustain a charge of forgery of a check is the testimony of
an expert, who, upon comparison of hand-writing, testifies

38 People V. Lee, 128 Cal. 330.

30 People V. Eppinger, 105 Cal. 36.

40 People V. Laird, 118 Cal. 291; People v. Eppinger, 105

Cal. 36.
*i People V. Sanders, 114 Cal. 216.
« People V. Whiteman, 114 Cal. 338; People v. Lundin, 117

Cal. 127; same case, 120 Cal. 310; People v. Mitchell, 92

Cal. 590.
43 People V. Lundin, 120 Cal. 308.
** People V. Bird, 124 Cal. 32.
« People V. Dole, 122 Cal. 486.
4« People V. James, 110 Cal. 155; People v. Orieleus, 79 Cal.

180.
*f People V. Cummings, 57 Cal. 88.
8 People V. Phillips, 70 Cal. 61.
^0 People V. Baker, 100 Cal. 188.



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FOROBRY. 163

that the defendant, in his opinion, wrote the same, it is
insufficient to sustain a conviction."**

POSSESSION OF COUNTERFEITING IMPLEMENTS.

To constitute the crime of guilty possession of counter-
feiting implements or forged notes, with intent to pass
them, the law only requires guilty possession. It is not
necessary that the intent to fill up unfinished notes should
be proved by an attempt to do so. Possession, with knowl-
edge of the purpose for which they are designed, is suf-
ficient.*' and to show the guilty intent of the possession, it
may be proved that the defendant also had possession of
counterfeit money.^^ The possession of counterfeit coin and
sale to one is sufficient evidence of guilty possession. The
intent to defraud is shown where the coin is passed to a
particular person, to be by him passed to others."' The
counterfeiting of foreign bank notes is punishable the same
as domestic bank notes."*

VERDICT.

A general verdict of guilty as charged cannot stand
where the information contains two counts and one of
which is .defectively pleaded,"" and as the passing of a
fictitious check and forgery are distinct offenses, a judg-
ment on one, under an indictment for the other, is void."*

INDICTMENT.

Where the instrument set out is null on its face, the
indictment must allege other matters which show that it
can be made to defraud."^ But the manner of the fraud
need not be alleged. If payable to the defendant it is
sufficient to charge him for the crime without alleging any

50 People V. Mitchell, 92 Cal. 590.

61 People V. Ah Sam, 41 Cal. 645; People v. McDonnell, 80

Gal. 285.
52 People V. White, 34 Cal. 183.
58 People V. Farrell, 30 Cal. 316.

54 People V. McDonnell, 80 Cal. 285.

55 People V. Mitchell, 92 Cal. 590; People v. Smith, 103
Cal. 567; People v. Turner, 113 Cal. 281.

5« People V. Eppinger, 114 Cal. 350.

5T People V. Tomlinson, 35 Cal. 503; People v. Todd, 77
Cal. 466.



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164 CRIMINAL LAW AND PROCEDURE.

endorsement;*® and it is not necessary to allege a false
making and forging, as forging implies false,*^' nor any of
the facts whose existence is assumed by the instrument
itself.*^ It need not contain a copy of the instrument
alleged to have been the subject of the forgery*^ and where
the instrument is in a foreign language, it is sufficient to
set out an English translation f^ and it need not allege
evidentiary matters aliunde ;^^ and in the making and utter-
ing of a fictitious order the indictment need not show that
the person to whom it was uttered was connected with the
person intended to be defrauded.** The making and utter-
ing are but one offense,** and may be charged in one indict-
ment;** and all acts enumerated in the statute may be
charged in one or in different counts.*^ In an infor-
mation for foi^ery in raising a check the legal existence
of the bank need not be shown, nor need the authority of
the person certifying it.** Where a fictitious check is
signed by a co-partnership name, the information must
allege the existence of the individual members of that
firm.**

PENALTY.

Imprisonment in state prison from one to fourteen years.

FORM — FORGERY.

[Penal Code, sec. 470.1

Wilfully, unlawfully, feloniously, and falsely did utter

and pass to one E F a certain false, forged, and counterfeit

check, as the true and genuine check of one C D, for the

88 People V. Ah Woo, 28 Cal. 206; People v. Todd, 77 Cal.

466.
5» People V. Mitchell, 92 Cal. 690; People v. Tomlinson,

102 Cal. 25.
«o People V. Bibby, 91 Cal. 470.
01 People V. O'Brien, 96 Cal. 174; People v. TerriU, 132

Cal. 499.
62 People V. Ah Woo, 28 Cal. 200.

«8 People V. Todd, 77 Cal. 464; People v. Bibby. 91 Cal. 470.
«< People V. Arlington, 123 Cal. 356.
«6 People V. Leyshon, 108 Cal. 440.
«« People V. Mitchell, 92 Cal. 590; People v. Smith, 103

Cal. 563.
«T People V. Frank, 28 Cal. 507.
«8 People V. Dole, 122 Cal. 486.
«o People V. Eppinger, 105 Cal. 36.



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.':S)QBGB3Y. /w' ;i. ; 166

payment of — dollars, which aforeisaid false, forged,

and counterfeit check is in the words and figures as fol-
lows, to wit, [here set out in full] with the intent then and
there to prejudice, damage, and defraud the said E F, he,
the said A B, then and there well knowing the said false,
forged, and counterfeit order to be false, forged, and coun-
terfeited.^**

FORM — FORGERY OF INSTRUMENT AND OFFERING FOR RECORD.
[Penal Code, sec. .470.]

With intent to defraud one C D, did falsely make, alter,
forge and counterfeit a certain bill of sale [or other instru-
ment, naming it] and writing obligatory, said instrument
being in the following words and figures, to wit, [here set
out the instrument in full] That thereafter, to wit, on the

— day of , 190 — , said A B, weyUogpwing that said

instrument was false, altered, forged, and OTAfcjrfeited, and
with intent to defraud C D ["or some person w^^^^wn to
the grand jury*'] did, at the county and state arore^rtc
utter, publish, and pass as true and genuine the instrumer
aforesaid, by offering the said instrument for record, at
the office of the county recorder of the county and state
aforesaid, and then and there causing the same to be
recorded as a record in said office.^^

FORM — PASSING COUNTERFEIT COIN.

[Penal Code, sec. 477.]
Well knowing the same to be false, forged, and counter-
feited, wilfully and feloniously did pass and give in pay-
ment to one C D, with intent to defraud the said C D, five
certain false, forged, and counterfeited silver coins, of the
species of silver coin then and now current coin in the
state of California, of the denomination of dollars.

FORM — POSSESSION OF COUNTERFEIT COIN, WITH INTENT TO

PASS. .
[Penal Code, sec. 479.]

Wilfully, feloniously, and knowingly did have in his
possession five counterfeit silver coins of the species of
silver coin then and now current in the state of California,

70 People V. Ah Woo, 28 Cal. 206.

71 People V. Harrold. 84 Cal. 567.



imenl^



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166 CRIMINAL LAW AND PROCEDURE.

of the denomination of half dollars, with intent then and
there wilfully, feloniously, and unlawfully to utter and pass
the same, with intent then and there to defraud one C D
and other persons to the grand jury unknown.''*

FORM — KEEPING IN POSSESSION UNFINISHED BANK BILLS

TO DEFRAUD.

[Penal Code, sec. 475.]

Feloniously, falsely, and wilfully did have and keep in his
possession five hundred certain false, forged, and counter-
feit blank and unfinished bank bills, each made in the form
and similitude of a bill for the payment of money, made to
be issued by an incorporated bank, viz., , a corpora-
tion then lawfully organized and incorporated under the
laws of and then carrying on business as such bank-
ing corporation at , which said five hundred blank

and unfinished counterfeit bank bills so had and kept in the
possession of the said A B are each in the words and figures
following, viz., [here set out in full] with intention to fill
up said blank and unfinished bills, and permit, cause and
procure the same to be filled up and completed in order to
utter and pass the same and to cause the same to be uttered
and passed as true and genuine bills of said corporation, to
defraud said .^'

FORM POSSESSION OF COUNTERFEITING DIES.

[Penal Code sec. 477. J

Knowingly, wilfully, unlawfully, and feloniously, did have
in his possession a certain stamp, block, die and plate made
use of in counterfeiting bank notes, in the likeness and
similitude of the genuine five pound notes of the bank of
England.^*

T2 People V. Stanton, 39 Cal. 698.
78 People V. Ah Sam. 41 Cal. 646.
74 People V. McDonnell, 80 Cal. 286.



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CHAPTER XXVII.



FRAUDULENTIvY TAKINQ WATER
FROM MAIN.

[Penal Code, sec. 499.]



With intent to injure and defraud the Company,

and without the consent of said company, the owners
thereof, and with intent to evade payment for the water
taken therefrom, made connections by means of a certain
pipe, tube, and instrument with certain mains and service

pipes of the said Company and maintained the

same for the purpose of taking water therefrom for the
supply of certain tanks and water-works kept and main-
tained by said A B.*

1 Ex parte Habling, 66 Cal. 215.



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CHAPTER XXVIII.



GAMINQ-

[Penal Code» sees. 330-332.]



DEFINED.

The statute against gaming is designed to prevent cer-
tain banking and percentage games named therein, from
being played at all, and to prevent cheating by sleight of
hand, pretensions to fortune telling, tricks, or other means
by use of cards or other implements.*

UNLAWFUL GAMES.

A banking game is a game conducted by one or more
persons where there is a fund against which everybody
has a right to bet, the owrner of the game paying all losses
and taking all the winnings.* Dealing and conducting the
game of faro is an oifense under the code, whether a bank-
ing game or not.* The fact that the game is played with
short cards does not change its character.'

EVIDENCE.

The definition of such a game is a question of law, and
expert evidence is not admissible to determine its character.
But a witness who knows the game may testify in general
terms what the game he witnessed was, or, if not familiar
with it, may describe it, and the court will instruct the jury
as to what constitutes the game charged.* If a witness of
his own knowledge knows what the game is, and saw the
defendant dealing or conducting it, he may testify to the

2 Penal Code, sections 330 and 332.
« People V. Carroll, 80 Cal. 153.
« People V. Gosset, 93 Cal. 641.
s People V. Gosset, 93 Cal. 641.
« People V. Carroll, 80 Cal. 153.



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. GAMING. .! 169

fact that he saw the defendant dealing the game, leaving
his knowledge on the subject to be tested on cross examin-
ation.^ But expert testimony is not allowed as to the char-
acter of the game. The court will take judicial notice of
what games are prohibited by law.® But it will not take
judicial notice that a "pool" necessarily involves gambling
for money.* Nor can a witness testify that a series of acts
testified to by another witness constitutes a particular
game.^** But evidence is admissible to identify the game."
The articles used in carrying on and conducting the game
are part of the res gestae and admissible in evidence to illus-
trate the nature of the game."

INDICTMENT.

An information for carrying on a game need not allege
that it was carried on as an owner or employee,^' and it is
not necessary to allege that the game was a banking game.
All of the acts enumerated in the statute may be charged
in a single count, or one may be charged separately.^* But
where the information charges a defendant with conducting
a banking game, where the statute requires that it be played
for money, it charges no offense.^*

PENALTY.

For conducting, playing or betting on a prohibited game,
fine not less than one hundred dollars nor more than five
hundred dollars, or imprisonment in the county jail not
exceeding six months, or by both. For obtaining money
or property by means of a fraudulent game, punishment
as in cases of larceny, of property of like value.^® Where

7 People V. Gosset, 93 Cal. 641.

8 People V. Carroll, 80 Cal. 153; People v. Rose, 85 Cal.
378; People v. Gosset, 93 Cal. 641; People v. Shaughnessy,
110 Cal. 598.

» Ex parte Bernert, 62 Cal. 524.
10 People V. Gosset, 93 Cal. 641.

" People V. Sam Lung, 70 Cal. 515; People v. Carroll, 80
Cal. 153.

12 People V. Sam Lung, 70 Cal. 515.

13 People V. Sam Lung, 70 Cal. 515.
» People V. Gosset, 93 Cal. 641.

15 People V. Carroll, 80 Cal. 153.
i« Penal Code 330-3?2.



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170 CRIMINAL LAW AND PROCEDURE.

a fine is imposed on conviction for gaming, the defendant
may be imprisoned to enforce its payment.*^ It is the duty
of the court in which the conviction has been had, to specify
in the judgment, the amount of the fine and the term of
imprisonment.*"

FORM CONDUCTING PROHIBITED GAME.

Wilfully and unlawfully did conduct and carry on [or
deal, play, or open] a certain game of fan-tan [or faro,
monte, roulette, lansquenet, rouge et noir, rondo, stud-horse
poker, seven-and-a-half, tan, twenty-one or hokey-pokey],
then and there played for money.*®

FORM CONDUCTING BANKING GAME.

Wilfully and unlawfully did deal, play, open, carry on,
and conduct a certain banking game, played with a certaii^
device, to wit, a wheel marked with numbers and colors,
said game being then and there a banking game commonly
known as the "wheel of fortune," and being then and there
played for money.^® .

Note. — For the oflFense of fraudulently obtaining money
by means of trick or device under Section 332 of the PensJ
Code, it is usually sufficient to charge the defendant with
larceny ; and the proof can be made, under such an indict-
ment, of the fraudulent means by which the possession of
the property was secured.^*

17 People V. Markham, 7 Cal. 209.

18 Ex parte Harrison. 63 Cal. 299.

10 People V. Sam Lung. 70 Cal. 515; People v. Gosset, 93
Cal. 641.

20 People V. Carroll, 80 Cal. 153.

21 People V. Shaughnesay, 110 Cal. 598.



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CHAPTER XXIX.



GAME LAWS.

[Penal Code, sees. 626-637.]



It is within the police power of the state, for the protec-
tion of the wild game of the state, tof prohibit the sale of
meat of any wild game within the stat^^^yjader such a
law it is not material whether the game was kilreQ/j\khout



the state, if it is sold within.^ A justice court has no JurfetOA/
diction of violations of the game law.* Jurisdiction is ^'
conferred exclusively on the Superior Court.'

FORM — KILLING AND POSSESSING GAME.

Between the ist day of March and the ist day of Octo-
ber of the year 190 — , unlawfully and wilfully did hunt,
pursue, take, kill, destroy, and have in his possession ten
valley quail [or other bird, naming it].

FORM — ^DESTROYING EGGS OR NESTS.

Unlawfully and wilfully did take, gather and destroy the
eggs and nest of quail [or other bird or fowl, naming it].

FORM — KILLING PROHIBITED BIRDS.

Unlawfully and wilfully did hunt, shoot at, shoot, take,
kill and destroy an English skylark [or other bird, naming

it].

FORM — POSSESSING PROHIBITED BIRDS.

Unlawfully and wilfully did buy [or sell, give away or
have in possession, as the case may be] an English skylark
[or other bird, naming it] the same not then and there

1 Bz parte Maier, 103 Cal. 476.
3 E^ parte Anear, 114 Cal. 370.
« People V. Tom Nop, 124 Cal. 150.



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172 CRIMINAL LAW AND PBOCSDUBE.

being sold [or bought or given away or had in possession,
as the case may be] for the purpose of propagation, or for
any educational or scientific purpose.

FORM — POSSESSING OR SELLING GAME.

Being then and there a person keeping a cold storage
warehouse, [or tavern, hotel-keeper, restaurant, eating house
keeper, or market man, as the case may be] unlawfully and
wilfully did buy [or sell, expose, oifer for sale, give away
or have in his possession, as the casfe may be] ten quail [or
other bird or animal, naming it] between the — day of
, and the — day of , 190 — .

FORM — USING SHOTGUN OF UNLAWFUL CALIBRE.

- < *

Wilfully and unlawfully did use a shotgun of larger
calibre than that commonly known and designated as a

No. ID gauge, to wit, a No. gauge, for the purpose of

killing game.*

FORM — DYNAMITING FISH.

That the said A B on or about the — day of ,

190 — , at and in the county and state aforesaid, wilfully

and unlawfully did place and cause to be placed in

stream, the same being then and there of the waters of the

state of California, and in the county of , in said

state, certain dynamite and gunpowder and other explosive
compound for the purpose then and there of wilfully aad
unlawfully killing and taking fish therein and therefrom,
and did then and there wilfully and imlawfully take and
procure and kill and destroy fish therein by means of said
explosives.*^

GRAND LARCENY, see LARCENY.
HIGHWAY ROBBERY, see ROBBERY.

4 Ex parte Peterson, 119 Cal. 578.
8 People V. Beach, 122 Cal. 37.



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CHAPTER XXX.



HOMICIDB-



DEFINITION.

Homicide is the taking of human life, under circum^
stances from which the law implies .either guilt or inno-
cence.

CAUSES CONTRIBUTING TO DEATH.

Whether the criminal act preceding death amounts in
law to a homicide, depends frequently upon supervening
circumstances, over which the party inflicting the injury
has no control whatever, like the unskilfulness of the treat-
ment, or the suicide or unruly conduct of the patient. The
rule may be stated thus : H the harm inflicted is not of
itself necessarily mortal, whether the death which follows
be a homicide or not, depends upon whether the treatment
or other supervening circumstances caused the death or
merely contributed to it. H death was caused solely by
such supervening circumstances, it i« not homicide, other-
wise it is. But if the harm done was sufficient in itself
to cause the death and did cause it, no intervening cause
will relieve the party inflicting it from the responsibility
of homicide.^ It is a homicide, too, though not necessarily
felonious, to accelerate or hasten the death of a person
languishing from either a mortal disrease or a mortal
wound.^

Homicide is felonious, justifiable or excusable. Felonious
homicide is either murder or manslaughter. But in order
to constitute a felonious killing, that is, either murder or
manslaughter, the injury inflicted must result in death

1 People V. Lewis, 124 Cal. 566.

« People V. Lewis, supra; People v. Ah Pat, 48 Cat ei;
People T. Moon, 65 Cal. 532.



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4.^






X I r-*^



174 CRIMINAL LAW AND PROCEDURE.

within a year and a day from the date of its commission,

otherwise death is conclusively presumed to result from

natural causes.^*

MURDER.

DEFINITION.

Murder is the unlawful killing of a human being, with
malice aforethought, either express or implied.*

ESSENTIALS.

To constitute the offense it must appear that the accused
was of sound mind, that the killing was unlawful, and that
it was done with malice.* To say that the person killing
must be of sound mind is simply a repetition of a rule
applicable to all crimes. The law presumes every person
to be of sound mind until the contrary be made clearly to
appear.*

UNLAWFUL KILLING.

Every killing is unlawful unless expressly excused or
justified by law. But an unlawful killing may be either
murder or manslaughter. The homicide being shown, it
is incumbent on the defendant to prove circumstances in
mitigation, excuse or justification unless they arise out of
the evidence produced against him. The mere fact of the
killing being proved to have been done by the defendant,
and nothing further, the presumption of law is that it was
malicious and an act of murder.*

2a People V. Steventon, 9 Cal. 273.

8 People Y. Haun, 441 Cal. 96; People v. Tor&i, 25 Cal. 364;
People V. Etoyell, 48 Cal. 85. This is but an enuncia-
tion of the common law definition, given by Coke,
which describes murder as *'where a person of sound
memory and discretion unlawfully killeth any reason-
able creature in being, and under the King's peace,
with malice aforethough, either express or implied.'*
3 Inst. 47.

4 People V. Moore, 8 Cal. 93.

5 People V. Myers, 20 Cal. 518; People v. Coffman, 24 Cal.
236; People v. Ferris, 55 Cal. 59t.

« People V. March, 6 Cal. 541; People v. Bush, 71 Cal. 601;
People V. Knapp, 71 Cal. 1; People v. Barry, 31 Cal. 357;
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. 144.



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^^^ i. MICHEL

MURDER. 175

MALICE.

Malice imports a wish to vex, annoy >or injure another
person, or an intent to do an unlawful act, established either
by proof or presumption of law.^ It may be either express
or implied. It is express when there is manifested a delib-
erate 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.'

MALICE INFERRED.

It seems to result from the cases that if there be only
slight or no provocation and if it reasonably may be inferred
from the circumstances of the case, that the party intended
to kill or do some great bodily harm, such homicide will
be murder. Thus, where a feeble old man is assaulted by
a powerful young man without any provocation, and beaten
upon the head in a cruel and unusual manner so that he
dies, it shows an abandoned and malignant heart and is
murder, though there was no evidence as to character of
the weapon used.° It will be seen that in express malice
there must be a specific intent to kill, disclosed by the facts
of the case, as where the killing is by means of poison, lying
in wait, or where antecedant menaces or concerted plans
and the like are proven. In such cases there is manifestly
a deliberate design to kill and malice is express. But the
law will imply malice when no considerable provocation
appears.^® Actual intent to kill is not necessary to estab-
lish malice, for murder, even of the first degree may be
committed in the perpetration of another felony when there
is no design whatever to kill," and the actual intent to kill

7 People V. Kerraghan, 72 Cal. 609; People v. Dice, 120
Cal. 201,

8 People V. lams, 57 Cal. 116; People v. Bniggy, 93 Cal.
476; People v. Dice, 120 Cal. 189; People v. Bealoba,
17 Cal. 389; People v. Sanchez, 24 Cal. 17; People v.
Foren, 25 Cal. 361; People v. Doyell, 48 Cal. 96; People v.
Bvana, 124 CaL 209.

» People V. Qoslaw. 73 Cal. 323.

10 People V. Knapp, 71 Cal. 17.

11 People V. Foren, 25 Cal. 365; People v. Craig, 111 Cal.
460; People v. Olsen, 80 Cal. 126; People v. Doyell, 48
Cal. 94.



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176 CRIMINAL LAW AND PBOOEDURB.

may exist without malice, as in cases of manslaughter when



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 14 of 77)