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

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77 Cal. 495.

64 People V. Irwin, 77 Cal. 494.

65 People v4 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.

66 People V. Brown, 59 Cal. 346; People v. Trim, 89 Cal.
75; People v. Lovren, 119 Cal. 88; People v. Majors,
65 Cal. 138; People v Eetrado, 49 Cal. 171; People v.
Cotto. 49 Cal. 166.

6T People V. Dixon, 94 Cal. 255.

6S People V. Fehrenbach, 102 Cal. 394.

6» People V. Rodley, 131 Cal. 240; People v. Lovren, 119

Cal. 88.
70 People V. Collins, 64 Cal. 293; People v. Dixon, 94 Cal.


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to defraud, the acts of a conspirator in an attempt to collect
insurance are not admissible.*^^ The testimony of declara-
tions made J^y one party to the witness are not disproved by
testimony tthat such declarations were .not trueJ^ A con-
spiracy may be established by circumstantial evidence,^
Indeed, it is not often that* the direct facts of a common
design, which is the essence of a conspiracy, can be proyed
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 proved that the
defendants pursued by their acts the same object, often by
the same means, one preforming one part and another
anothe;r part of the same, so as^^ to. complete it, with a view
to the attainment of the same object, the jury will be jus-
tifieki in the conclusion that they were engaged in a con-
spiracy to effect that object J* The fact that the defendant
was standing by and saw a cnime committed is not evidence
of a conspiracy," but the resolutions of a trade union are
admissible to show conspiracy of its mtembefrs.''' The con-
spiracy must always be satisfactorily proved before the
declarations are admissible,^®^ and error in the admission of
such testimony is not cured by instructing the jury to dis-
regard it.^^


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 equivaleht of the words
''statement'* and "declaration."^® The term is restricted

71 People V. Trim, 39 Cal. 75.

72 People V. Mitchell, 94 Cal. 550.

73 People V. Lane, 101 Cal. 513; People v. Bentley, 75 CaU
407; People v. Dixon, 94 Cal. 257.

74 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.
7« People v. Holmes, 118 Cal. 444.
7ea People v. Geiger, 49 Cal. 643.

77 People V. Oldham, III Cal. 648.

78 People V. Strong, 30 Cal. 158; People v. Velarde, 6^
Cal. 461.

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to acknowledgements of guilt/® It does not include stated
ments not amounting to a confession of guilt,®^ and admis-
sion of facts that may tend to show guilt is not- a con-
fession.** It is a well established law that extrajudicial
confessions and verbal admissions should be received with
caution,** and viewed with distrust.*' A confession alone,
made extrajudicially, will not sustain a conviction." But
confessions to bo admissible at all, must be freely and volun-
tarily made,*^ and not under the influence of threats,*** or
fear,*^ or induced by any improper means.** 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.*® A subsequent confession is presumed to have been
made and influenced by the same hopes and fears which
induced the first confession,®® and it is an open question
in this state whether the inducement must be made by on-e
having authority, such as a constable, sheriff, prosecutor

70 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.

80 People V. Hickman, 113 Cal. 86; People v. Miller, 122
Cal. 87.

81 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.

83 People V. Sternberg, 111 Cal. 11; Section 2061 Code of
Civil Procedure.

84 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 Tl, 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.

8« People V. Oliverta, 127 Cal. 377.

8T 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. E3ckman, 72 Cal. 582.
00 People V. Eckman, 72 Cal. 583.


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and the Iike.°^ 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,'^
or statements which show innocence made to an officer.*^
Thus statements voluntarily made before a coroner's jury
are admissible at the trial,®* and so, are declarations made
two years before the act as to what he would do in certain
cases.^° 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.""
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.'^ The
exclamation of the wife of the defendant at the tinte of
the homicide, if made ia his presence, is admissible against
him,®® and likewise, conversations with the defendant, and
false explanation given by him,®* and voluntary admissions
in civil cases, where the witness was not in custody, and not
charged with the crime,^ admissions in another trial,^ writ-
ten confessions at the preliminary examination, are com-
petent evidence against a defendant in a criminal case.'
But the admission of a writtefti confession does not preclude
oral admissions.* A/ confession' may be corroborated by
circumstances.'' Thus a confession of larceny and the find-

81 People V. Smith, 15 Cal. 409.

02 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.

08 People V. Ashmead, 118 Cal. 508.

»* People V. Martinez, 66 Cal. 278; People v. Taylor, 59
Cal. 640; People v. Wheeler, 60 Cal. 690; People v.
Herbert, 61 Cal. 544.

»s People V. Irwin, 77 Cal. 496.

86 People V. Bowman, 81 Cal. 566.

87 People V. Garcia, 25 Cal. 531.

88 People V. Murphy, 45 Cal. 137.
88 People V. Cuff, 122 Cal. 589.

1 People V. Weiger, 10« Cal. 352.

2 People V. Mitchell, 94 Cal. 550.

8 People V. Cokahnour, 120 Cal*. 252.

4 People V. Cokahnour, 120 Cal. 252.

5 People V. Jones, 32 Cal. 81.

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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.** 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.^ Declarations to be admissible
must in all cases be connected with the subject of the
inquiry.* Words uttered by the defendant while sleeping,*
or while insane, are not admissible against him,^® but con-
fessions when made under the influence of liquor furnished
defendant with the consent of the officer, if uninfluenced
hv anvthing said by the officer, are admissible.^^ A volun-
tar\' 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.^* The con-
fession of an accomplice after the commission of the crime
is not admissible against the defendant.^' If the confession
be voluntary, it is admissible, although 'made with the pur-
pose of releasing another also imprisoned.^* The burden
of showing the confession was voluntary is on the prosecu-
tion, who seeks to introduce it." 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.^® But the defense may show

« People V. Ramirez, 56 Cal. 533; People v. Ah Ki, 20 Cat.
178; People v. Ah How, 34 Cal. 224; People v. Hoy Yen,
34 Cal. 176.

7 People V. Hoy Yen, 34 Cal. 176.

8 People V. Irwin, 77 Cal. 494.

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. Irwlni
77 Cal. 505.

14 People V. Smalling, 94 Cal. 112.
16 People V. Castro, 125 Cal. 521.

16 People V. Rodriguez, 10 Cal. 51. ' i

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that it was not voluntary before it is admitted.^^ Statements
made in an action, if not objected to and answer is not
refused on the ground that they would incriminate, are
voluntarily made.^® The admission of a written confession
of a defendant, is without prejudice where the defendant
himself testifies to the same fact.*** Declarations and state-
ments of the defendant, if admitted, should be given in
full.^** A part of a conversation is not admissible,*^ the
whole of the confession must be put in, if a part is
admitted.** The jury may believe a confession in part and
disbelieve in part, as other evidence.*' Where the witness
does not perfectly understand the language in which the
confession was given, he cannot testify to it.*** 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.*^ 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.*® 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 aflPect the credibility
of the witness and is binding on the prosecution.*^ His
admissions as to the acts of the prosecuting witness made
during the trial are as relevant as if proven by the tes-
timony.** The admissibility of a confession is a question

17 People V. Soto. 49 Cal. 67.

18 People V. Weiger, 100 Cal. 352.
• 10 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 Cai. 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.

26 People V. Smith. 103 Cal.* 563.

27 People V. Robles, 34 Cal. 591.

28 People V. Tyler, 36 Cal. 522.

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for the court,*® and the proper foundation must be laid
before it is admitted.^^ Declarations by the defendant in
his own favor are not admissible,'* except where they form
a part of the res gestae,^^ Neither can statements by the
defendant to third parties be proved in his own favor."


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.'* The confession will not establish the corpus
delicti,^^ nor is an admission sufficient proof of the corpus
delicti to admit a confession.^® It must be established
independent of the evidence which merely tends to connect
the defendant with the crime.'^ It is the duty of the court
to instruct the jury as to the independent proof necessary
to establish the corpus delicti}^ It is made up of certain
facts forming its basis, and the existence of criminal agency
as the cause of them.'" Generally it must be proven by
direct testimony, but it may be proven by circumstances
or inference.** 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.** But in obtaining
money under false pretenses, admissions of the defendant
are not sufficient to prove the corpus delict i,^^ The admis-

2» People V. Ah How. 34 Cal. 218.
30 People V. Chaves, 122 Cal. 134.

81 People V. Prather, 120 Cal. 660; People v Chin Hane,
108 Cal. 597.

82 People y. Kalkman, 72 Cal. 212.
88 People y. Hill, 116 Cal. 562.

84 People y. Slmonsen, 107 Cal. 345.
88 People v. Balrd, 105 Cal. 126.
3« People y. Harris, 114 Cal. 575.

87 People y. Tapia, 131 Cal. 647; People y. Thrall, 50 Cal.

88 People y. Tapla, 131 Cal. 647.
so People y. Jones, 123 Cal. 65.

*o People y. Alviso, 55 Cal. 230; People y. Simonsen, 107

Cal. 348.

41 People V. Tarbox, 115 Cal. 57.

« People V. Simonsen, 107 Cal. 345.

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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.**
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
^f the offense of which the defendant is guilty.** The
*jj[idence of the corpus delicti need not be of conclusive
CMfacter, nor should it connect the defendant with the
crujtlp in order to justify its admission.** The 'ddniission
in ^dence of the confession before proof of the corpus
delicti will not justify a reversal w^here the defendant is not
prejudiced.*® The failure to require preliminary proof that
the confession was voluntary is not prejudicial, where cir-
cumstances show no inducements were held out.*^


Conversations in the presence of the accused are not
hearsay,*® and are admissible against him.*' Likewise
admissions by the defendant at the same time are admis-
sible,**^ but only so far as the defendant asserted,**^ or did
not controvert.^^ His acquiescence in statements by others
may be shown to establish admissions of guilt.'** It is
admitted not as evidence of the truth of the facts stated,
but to show the conduct of the defendant.*** But such con-

43 People v. Miller, 122 CaL 84.
4* 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.

40 People v. Mayes, 113 Cal. 618; People v. Young, 108

Cal. 8; People v. Ah Fook, 64 Cal. 380; People v. Louie

Foo, 112 Cal. 24.
00 People V. Ah Fook, 64 Cal. 380; People v. i-oule Foo,

112 Cal. 24.
ei People v Estrado, 49 Cal. 171; People v. A^x Yute, 53

Cal. 615;* People v. Ah Yute, 64 Cal. 90.
52 People V. Mallon, 103 Cal. 513; People v. Young, IDS

Cal. 13; People v. Chin Hane, 108 Cal. 603.
63 People v. McCrea, 32 Cal. 98; People v. Mallon, lOS

Cal. 514.
54 People V. Ah Yute, 53 Cal. 614; People v. Ah Yute, 54

Cal. 90; People v. Louie Foo, 112 Cal. 24.

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versation must be connected with the defendant,*^*^ as those
made out of his presence are not admissible.*^* It is for the
jury to decide whether the defendant heard and understood
the same.*^^ Declarations of the guilt of the defendant are
inadmissible unless they be dying declarations.*® And if
made by others, even in the presence of the accused, they
are not admissible in his favor.*° Where the conversations
are connected with the assault, and are mentioned on the
day of the fight they are admissible.*** Conversations with
a Chinese defendant, who is sufficiently acquainted with
English to understand what was said, are admissible.*^ The
rule as to part conversations not being admissible, doe^not
apply to cases where the witness heard only a part ; he r^i^
relate what he heard,*^ and where it was in two languages '/^
it may be proven as to each part by persons understanding
that one part only.*^ But a prosecuting witness cannot tes-
tify as to conversations had with others and the report he
made to the chief of police.** 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.**


The flight of the accused is a circumstance to be con-
sidered by the jury, with other evidence,^ to show con-

88 People V. Powell, 87 Cal. 348.
50 People V. Griffin, 52 Cal. 616.

87 People V. Chin Mook Sow, 51 Cal. 597.

88 People V. Hall, 94 Cal. 595.

80 People V. Louie Foo, 112 Cal. 17.
«o People V*. Madden, 76 Cal. 521.

81 People V. Chin Hane, 108 Cal. 597.
«2 People V. Daniels, 105 Cal. 262.
«3 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.

«4 People V. McNamara, 94 Cal. 510.

08 People V. Wilson, 66 Cal. 370.

1 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-
smlth, 61 Cal.* 249; People v. Welsh, 63 Cal. 168.


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sciousness of guilt^ It may be shown notwithstanding it
tends to prove another crime,' but there is no presumption
of guilt from such a circumstance.* 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.*
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.' Pursuit and capture of
defendant are admissible,* but not the advice of third per-
sons to the defendant to fly;* 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.^** ' The willing-
ness of the accused to surrender is not admissible, where
no evidence of flight is oflfered,^* and a failure to fly by
one having an opportunity is not proof of innocence."
Other evidence of the conduct of the accused is' admissible,
such as a breach of parole,^' an attempt to bribe a pros-
ecuting witness,^* and concealment and disguise.^** But the
conduct of the accused showing his objection to being. dis-
graced by arrest cannot prejudice him.*" An offer to plead
guilty to a lesser crime may be shown, when it was not
mduced by hope or fear.*^ The silence of the defendant

2 People V. Bush ton, 80 Cal. 160; People v. Gianeoll, 74
Cal. 642; People v. Strong, 46 Cal. 303; People v. Welsh,
63 Cal. 168.

3 People V. Flannelly, 128 Cal. 83.

* People V. Wong Ah Ngow, 54 Cal 151; People v.

Mitchell, 55 Cal. 238; People v. Messersmith, 61 CaL

249; People v. Welsh, 63 Cal. 168.
5 People V. Page, 116 Cal. 386.
« People V. Clark, 84 Cal. 573.
7 People V. A?rmstrong, U4 Cal. 570.
« People V. Fredericks, 106 Cal. 554.
» People V. Lee Dick Lung. 129 Cal. 491.

10 People V. Lee Dick Lung, 129 Cal. 491.

11 People V. Shaw, 111 Cal. 171.

12 People V. Montgomery, 53 Cal. 576.

13 People V. Ashmead, 118 Cal 508.

1* People V. Choy Ah Sing, 84 Cal. 276; People v. Wong

Chuey, 117 Cal. 628.
15 People V. Winthrop, 118 Cal. 85.
10 People V. FItzpatrick, 80 Cal. 538.
17 People V. Carroll, 92 Cal. 568.

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sunder accusation of guilt, cannot be proved against him;
out silence in not explaining the possession of a forged
<heck, testified to in chief, can be proved on cross-examin-
ation.^® 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.^*
Evidence may be introduced to the eflfect that the defend-
ant, a short time before the oflFense, called himself by
another name,^^ but the accused may, at all times, explain
his conduct.^^


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.^^ But the defend-
ant may bei asked whether he had prepared a statement and
addressed it to his attorneys.^* The rule as to a privilege^
communication between patient and physician or surgeon
has no application to criminal actions.^*^ 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.^** The testimony can-
not be. given even after divorce. No disclosures can be
forced from either spouse,^^ but the testimony of the wife

18 People V. Dole, 122 Cal. 486.
10 People V. Welsh, 63 Cal. 167.

iio People V. Collins. 48 Cal. 277; People v. Welsh, 63
Cal. 168.

21 People V. Hope, 62 Cal. 291.

22 People V. Williams, 17 Cal. 142; People v. Scoggins,
37 Cal. 687.

28 People V. Atkinson, 40 Cal. 284.

24 People V. Durrant, 116 Cal. 179.

2c People V. West, 106 Cal. 89; People v. Warner, 117

Cal. 639; People v. Lane, 101 Cal. 513.
2« People V. Warner, 117 Cal. 637.
27 People V Mailings, 83 Cal. 138; People v. Warner, 117

Cal. 639.'

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against the defendant is presumed to be with his consent,
where he afterwards testifies to the same facts,^ and the
error in permitting" the testimony is cured thereby.^®


Evidence connecting the defendant with other offenses is
admissible, if it tends to shpw a material fact or motive in
the easel at issue,^^ is a part of the same transaction,^^ tends
to connect the defendant with the crime charged,'^ or is con-
nected with the crime charged. ^^ But the connection from
which the crime is inferred must be clear.^* It is also ad-
missible to show motive,^* intent and guilty knowledge,^*
and to rebut the claim of good faith.^' Thus in forgery
cases, evidence of other forgeries may be introduced about

28 People V. Fultz, 109 Cal. 258.

20 People V. Ketchum, 73 Cal. 635.

80 People V. Rogers, 71 Cal. 565; People v. Lane, 101 Cal.
518; People v. Smith, 106 Cal. 82; People v. Craig. Ill
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.

.31 People V. Walters, 98 Cal. 138; People v. Bldleman,
104 Cal. 613; People v Wilson, 117 Cal. 692; People v.
Smith, 106 Cal. 82; People v. Ebanks, 117 Cal. 663; Peo-

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 30 of 77)