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

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Cal. 476; People v. lams, 57 Cal. 115; People v. Hender-
son, 28 Cal. 466; People v. Allvtre. 55 Cal. 264.

68 People v. Scoggins, 37 Cal. 676; People v. Allvtre, 55
Cal. 265; People v. Carlton, 57 Cal. 85; People v. Thom-
son, 92 Cal. 511.

59 People V. Taing, 53 Cal. 602.

»o People V. Carkhuff, 24 Cal. 641; People v. Carlton, 8T
Cal. 84; People v. Taylor, 59 Cal. 648; People v. Irwla,
77 Cal. 500; People v. Gress. 107 Cal. 463.

61 Peop'e V. Daily, 59 Cal. 600.

«2 People V. Irwin. 77 Cal. 494.

«3 Pecp'e V. Carlton. 57 Cal. 83.

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where made eo instanti the firing of the fatal shot, although
out of presence of defendant, are admissible.** 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.** They are never proper, however, to
show malice, deliberation or motive.*"


Threats made by the defendant against the deceased are
admissible to show malice, and thereby increasing the
probability that he committed the oflffinse.^ The competency
of such evidence is not affected by lapfe^trf'^o^e, although
it may be impaired thereby.*^ It is immaterial' <Ha^/{hejyit-
ness cannot relate all of the conversation in which the^tnrejto^
occurred, if he gives the substance thereof.** Neither is *
the indefiniteness of the threats any reason for excluding
the testimony.** The defendant will not be allowed to
explain his threats.^^ Threats against others than the
deceased are not admissible except when the circumstances
show some connection with the injury inflicted on the
deceased.''^ It is, however, competent to prove a broad
threat by defendant against the whole family of deceased,^*
but a threat against a brother is not admissible.^* A threat
againsti a witness may also be shown ,^* but to be admissible
it must have been communicated.^* 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.^*

«* People V. Wong Ah Foo, 69 Cal. 180.

•5 People V. Arnold, 15 Cal. 476.

«« People V. Shuttuck, 109 Cal. 673.

•7 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.
68 People V. Dice, 120 Cal. 189.
«» People V. Craig, 111 Cal. 466.

70 People V. I ynch, 101 Cal. 229.

71 People V. B€7y. 67 Cal. 223.

72 People V. Grcfcc, 123 Cal. 3S0; People v. Craig, 111 Cal.

7» People V. Bezy, 67 Cal. 223.
74 People y. Chin Hane, 108 Cal. 597.
7B People V. Powell, 87 Cal. 348.
7fl People V. Hyndman, 99 Cal. 1.

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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.^^ But, notwithstanding
this, such declarations are universally held to be admissi-
ble.''* This 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
suflFered 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.^®

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.*® The statements of the deceased

77 People V. Taylor, 59 Cal. 640; People v. Glenn, 10 Cal.
37; People v. Lawrence, 21 Cal. 372.

78 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. Slerp, 116
Cal, 249; People v. Farmer, 77 Cal. 1.

7» People V. Sanchez, 24 Cal. 24; People v. Hodgdon, 55
Cal. 76; People v. Taylor, 59 Cal. 646.

«o People V. Owens, 123 Cal. 482; People v. Gray, 61 CaL
164; People v. Lee Sare Bo. 72 Cal. 625; People v. Fuh-
rlg. 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; People v. Hawes, 98 Cal. 648; People T.
Ramirez, 73 Cal. 404; People v. Ybarra, 17 CaL 166;
People V. Yokum, 118 Cal. 440; People v. Farmer. 77
CaL 1; People v. Sierp, 116 Cal. 249.

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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.^^ 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.®^ 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.®* 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.** 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.**
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.*® A sense of
death is not shown when the statement is written by a
stenographer without any request from the deceased.*^ The
declarations need not be in writing,** and even when written

81 People V. Hawes, 98 Cal. 648; People v. Samario, 84 Cal.
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. Fuhrlg, 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.

88 People V. Feng) Ah Sing, 70 Cal. 8; People v. Bemmerly,

87 Cal. 117.
«< People V. Taylor, 59 Cal. 640; People v. Gray, 61 Cal.

164; People v. Lee Sare Bo. 72 Cal. 625.
88 People V. Sanchez, 24 Cal. 25.
8« People V. Garcia, 63 Cal. 19.
87 People V. Fuhrlg, 127 Cal. 412.
«8 People V. Yokum, 118 Cal. 440.

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declarations are admitted, it is permissible to admit oral
declairations of the same import made at a different time.**
They are not rendered incompetent by the fact of a lack of
religious belief on the part of the deceased.®* Nor can the
statement be rejected because the deceased refused to answer
further, saying that he was a dying man.®^ 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."- 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.**^ The statement is not
rendered incompetent by reason of the fact that it is contra- '
dieted by evidence of statements subsequently made by

As TO WHAT ADMissiiM^E. The declarations must relate
to and form a part of the res gestae; 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,^'^ or have reference to the cir-
cumstances of the death or be made against interest.®^ No
expressions of opinion by the deceased,®^ nor statements
relating to former distinct transactions, are* admissible.**
The entire context of a declaration must be given.®® Dec-
larations of the deceased after the shooting are not admissi-
jjlg 100 Where a statement was taken down by a reporter in

80 People V. Glenn, 10 Cal. 33.

80 People V. Sanford, 43 Cal. 29; People v. Chin Mook Sow,
51 Cal. 599.

01 People V. Chin Mook Sow, 61 Cal. 600,

02 People V. Vernon, 36 Cal. 49.

03 People V. Crews, 102 Cal. 174.

04 People V. Lawrence, 21 Cal. 368.

05 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 ▼.
Wong Chuey, 117 Cal. 629.
o« People V. Carkhuff. 24 Cal. 640.

07 People V. Wasson, 65 Cal. 538.

08 People V. Fong Ah Sing, 64 Cal. 256.
00 People V. Fong Ah Sing, 70 Cal. 8.
100 People V. Westlake, 62 Cal. 203.

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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.^®* 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.*®* And
where not admissible, the error is cured when the defendant
afterwards proves the same facts by his own witnesses.*®'


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.*®* 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.*®** 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.*®^ But it
is not competent to put in evidence letters or communica-
tions, found on the person of the deceased after his death*®^
unless they be shown to have come from the defendant. *®^
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,*®® but a club unidentified is not
admissible.**® But weapons not in evidence may be exhib-
ited to the jury when no objection is made thereto.*** A
dressmaker's form, may be draped with the clothing of dc-

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.

104 People V. Clarke, 130 Cal. 646; People v. Van Horn,
119 Cal. 328.

106 People V. Mitchell, 100 Cal. 328.
io« People V. Smith, 106 Cal. 74.

107 People V. Van Horn, 119 Cal. 323.
io« People V. Worthington, 115 Cal. 242.
100 People V. Winters. 125 Cal. 325.

110 People V. Hni, 123 Cal. 571.

111 People V. Ccx, 76 Cal. 281.

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ceased already in evidence to represent the figure of
deceased.^^^ 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,"^ 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.^^* The
defendant will not be permitted for the purpose of moving
the jury to compassion to show the ages of his children."*


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,* or of a specific intent,
where such an intent is an element of the crime,^ or a want
of premeditation in determining the degree of the crime.*
But as between murder in the second degree and man-
slaughter, it can form no legitimate matter of inquiry,* and
it is immaterial when the charge is involuntary man-
slaughter without due caution and circumspection.* In all
cases it should be received with great caution.^

112 People V. Durrant, 116 CaL 179.
118 People V. Brown, 59 Cal. 345.
11* People V. Cuff, 122 Cal. 689.
116 People V. Dice, 120 Cal. 189.
1 People V. Kloss, 115 Cal. 576.
* 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.
8 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. MHler, 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.
4 People V. Langton, 67 Cal. 427; People v. Lane, 100 CaL

379; People v. Nichol, 34 Cal. 211.
8 People y. Pearne, 118 Cal. 151.
« People V. Lewis, 36 Cal. 531; People ▼. Vincent. 95 CaL

425 ;\ People v. Fellows, 122 Cal. 239.

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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.^ There must be proof of some kind of the death.'*


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,* 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.*


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.^® The verdict must specify the
degree of which the defendant is convicted." 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-

7 People y. Alviso, 65 Cal. 230.

7a People V. Callego, 133 Cal. 295.

8 Penal Ck)de 27.

» People y. Botkin, 132 Cal. 231.

10 Penal Code 190.

11 People v. O'Nell, 78 Cal. 388; People v. Trayeni, 73 Cal.
580; People y. Jefferson, 52 Cal. 452; People y. Lee
Tune Chong, 94 Cal. 386; People v. Campbell, 40 Cat,
129; People y. Marquis, 15 Cal. 38.

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tal punishment.*^ Upon a plea of guilty the court shall de-
termine the punishment.'^ Murder in the second degree is
punishable by imprisonment in the state prison not less than
ten years.'* The court has power to impose life imprison-
ment on a conviction of murder of the second degree.**
Manslaughter is punishable by imprisonment in the state
prison not exceeding ten years. *^*


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.*® As has been seen,
the distinction between murder and manslaughter is the
presence or absence of malice. An indictment charging
murder also includes manslaughter." It is, of course, nec-
essary to allege the death of the person named in the indict-
ment,** 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, 106 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 ▼.
Jones, 63 Cal. 168; People v. Welch, 49 Cal. 174.

13 In re Brown, 32 Cal. 49; Penal Code 190.

1* People V. Brooks, 131 Cal. 311; Penal Code 190.

IB People V. Brooks, 131 Cal. 311.

loa Penal Code 193.

10 People V. King, 27 Cal. 510; People v. Cronin, 34 Cal.

191; People v. M^urphy, 39 Cal. 52; People v. Davis. 78

Cal. 357.

17 People V. Dolan, 9 Cal. 584; People v. Pearne. 118 CaL

18 People V. Crenshaw, 46 Cal. 66.

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red to fix ^


died." The name of the deceased must be alleged, but he
may be described by the name by which he was commonly
known.**^ An error in the middle name is immaterial,"
for the name is used only for the purpose of identification."
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.^^ 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.^*
This requirement is merely a rule of evidence. Unless the
party dies within that time there can h% no conviction.^ It
will be a sufficient allegation of time,Tfo>/}ta5r^if it can be
determined from the facts alleged that death reafl^pfffirred
within the year and a day, even though it be not
alleged.^® The place of the homicide must be averred
the venue." 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.^** The manner in which the weapon was loaded is

i» People V. Sanford, 43 Cal. 29.

20 People V. Freeland, 6 Cal. 96; People v. McNulty, 93 Cal.

21 People V. Lockwood, 6 Cal. 206.

22 People V. Dick, 37 Cal. 280; People v. Leong Sing, 77
Cal. 117.

23 People V. McNulty, 93 Cal. 445; People v. Freeland, 8
Cal. 98. N

2* People V. Aro, 6 Cal. 210; People v. Wallace, 9 Cal. 31;
People V. Steventon, 9 Cal. 274; People v. Dolan, 9 Cal.

2B People V. Murphy, 39 Cal. 55.

2« People V. Nlchol, 34 Cal. 211; People v. Sanford, 43 Cal.
31; People v. Cronln. 34 Cal. 191.

2T People V. Wallace, 9 Cal. 31.

28 People V. 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. Hsmdman,
99 Cal. 3.

"Under the pretense of informins: the defendant of
the nature of the charge against which he was called

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likewise immaterial;*® also the nature and extent of the
wound.*® The indictment need not charge the degree of
murder. It is not the province of the grand jury but the
trial jury to determine the question of the degree of which
the defendant is guilty.'^ But there is no impropriety in so
doing.** Malice aforethought is a necessary ingredient of
murder and consequently must be alleged in some manner,"
but it need not be alleged in those words, it is sufficient
it equivalent words are employed.** Thus the allegation
that the murder was deliberate and premeditated is equi-
valent to an allegation of malice aforethought.*" And it
need not be alleged that it was deliberate, if it is alleged
that it was done with malice aforethought.** 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.*^ 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
conunitted, 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.

2» People V. Cholser, 10 Cal. Sll.

80 People V. King. 27 Cal. 507.

31 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.

82 People V. Dolan, 9 Cal. 376.

88 People V. Schmidt, 63 Cal. 28; People v. Bonllla, 88 CaL
699; People v. King. 27 Cal. 507.

84 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.

85 People V. Vance, 21 Cal. 400.

8« People V. Dolan, 9 Cal 576; People v. Murray, 10 Cal.
310; People v. Hyndman, 99 Cal. 3; People ▼. Garcia,
25 Cal. 533; People v. Shaber, 32 Cal. 38; People v. Pool,
27 Cal. 572.

87 Penal Code 959; People v. Dolan, 9 Cal. 576; People t.
Alviso, 55 Cal. 230; People v. Hong Ah Duck. 61 Cal. 390;
People V. Davis, 73 CaJ. 357; People v. Martin, 47 CaL
101; People v. Cronin, 34 Cal. 191; People v. Coleman,
10 Cal. 334; People v. Wallac?, 9 Cal. 31; People v. Soto,

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Statute may be used.^® An indictment will be held suffi-
cient if it can be readily understood therefrorh 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


Feloniously, wilfully, and of his malice aforethought, did
kill and murder C D.*<^




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; Peop.e v. Garcia, 25 Cal. 533; People v. White,
34 Cal. 183; People v. Phipps. 39 Cal. 326.

38 People V. Potter, 35 Cal. 114.

38 People V. Nichol, 34 Cal. 211.

^0 People V. Cronin, 34 Cal. 210; People v. Murphy, 39 Cal.

CfllMICS - 14

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(Penal Code, sec. 286.)


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.^ Either party may be

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 17 of 77)