California Charles Howard Fairall.

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

. (page 40 of 77)
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In the publication of the Penal Code we have undoubt-
edly changed the law of this state — not the law as enacted
by the legislature, but as furnished to the public by law
book publishers. It was not originally intended to insert
the Penal Code in this volume, but a number of lawyers
who knew we were printing a work on criminal law in
California insisted that it would not be complete without
the code, especially in view of the dilapidated condition in
which the Supreme Court in its decision on the Commission-
ers' amendments to the codes had put all existing publica-
tions of that code. Hence as the work was supposed to be
purely mechanical, we turned over to the compositors a
pony edition of the Penal Code issued in 1897 by a San
Francisco publishing house with our own subsequent slips
for copy, and then started to read the proofs by Pomeroy's
Codes of igoi ; when, behold, they did not agree! Then
we turned to the original laws and found they were both
incorrect. !Many of the errors are of minor importance
and perhaps immaterial. But punctuation seems to have
been at the mercy of the whims of the printer and proof-
reader without any regard to the law as originally issued
by the state. For instance, what was originally " keybit,"
in section 466 had become *' key, bit ; '' while in section 369
the words " railroad, car " have gone the other way, and
now in all the publications in general use appear as " rail-
road car." Amongst the material changes in the reading
may be mentioned section 627, by which the legislature of
1897 (Statutes, p. 92) made it a misdemeanor for any com-
mon carrier to transport certain game " except for purposes
of propagation," but none of the aforesaid publications

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contain the exception, although they all publish the section
as law. We have omitted it because the statutes of 1901
(p. 821) say it "is hereby amended to read as follows:"
In some of the publications referred to, " person " has been
changed to " woman," (sec. 275) ; " offense " to *' defense,"
(sec. 952) ; " broker " to " banker," (sec. 536) ; " or quiet "
is omitted, (sec. 415) ; " made " inserted, (sec. 536) ; while
" of," " in," " a " and " the," and small words of that kind
seem to have been irrelevant, incompetent and immaterial
in the eyes of the aforesaid printers and proof readers. And
when the grammatical construction seemed faulty there was
no hesitation in fixing it.

Suffice it to say that we went to the Penal Code issued
from the state printing office in 1872 and published under
an authority from the legislature, (Statutes 1872-3, p. 481)
and under the supervision of the Code Commission, and
certified by the members of the commission to be correct,
and then took all the amendments of the legislature since
as published by the state printing office, and read the afore-
said proofs. We laid aside all " style " of a printing office
and followed the copy in all respects except in capitaliza-
tion, which we opine can make no difference in the law.
We have followed the typographical errors of no one else,
and all that are herein are our own. In some cases we have
italicized words to show that we followed the copy, and if a
typographical error is not ours.

The citations are those taken from the California Code
Citations issued by us.

A new and complete index has been prepared by Mr.
Fairall, and knowing the care, labor and ability bestowed
upon the portion of this book preceding this explanation, we
confidently submit this book to the bench, bar and people of
the state of California with no fear or trepidation.


Lx)s Angeles, March 15, 1902.

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[Approved February 14, 1872.]

The People of the State of California, represented in Senate
and Assembly, do enact as follows:

1. This act shall be known as the Penal Code of California,
and Is diTlded into three parts, as follows:

1. Of Crimes and Punishments.
II. Of Criminal Procedure.

III. Of the State Prison and County Jails.


Sec. 2. When this act takes effect.

8. Not retroactive.

4. Constrnction of the Penal Code.

5. Provisions similar to existing laws, how construed.

6. Effect of code upon past offenses.

7. Certain terms defined In the senses in which they are used In

this code.

8. What Intent to defrand Is sufficient.

9. Civil remedies preserved:

10. Proceedings to Impeach or remove officers and others preserved.

11. Authority of courts-martial preserved. Courts of Justice to punish

for contempts.

12. Of sections declaring crimes punishable. Duty of court.

13. Punishments, how determined.

14. Witness' testimony may be read against him on prosecution for


15. "Crime" and "public offense" defined.

16. Crimes, how divided.

17. Felony and misdemeanor defined.

18. Punishment of felony, when not otherwise prescribed.

19. Punishment of misdemeanor, when not otherwise prescribed.
^. To constitute crime there must be unity of act and Intent.

21. Intent, how manifested, and who considered of sound mind.

22. Drunkenness no excuse for crime. When It may be considered.

23. Certain statutes specified as continuing In force.

24. This act. how cited.

When this act takes effect.

2. This code takes effect at twelve o'clock, noon, on the first
day of January, eighteen hundred and seventy-three.

Not retroactive.
8. No part of it is retroactive, unless expressly so declared.

IMCal. 680.

Construction of the Penal Code.

4. The rule of the common law, that penal statutes are to h%
strictly construed, has no application to this code. All Its
provisions are to be construed according to the fair import of
their terms, with a view to effect its objects and to promote

4« Cal. 116; 49 Cal. 70: 82 Cal. 274; 88 Cal. 139;
98 Cal. 584: 99 Cal. 631; 105 Cal. 558: 127 Cal.

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5-7 PENAL OODB, 492

Provisions similar to existing laws, liow construed.

5. The proYlsions of this code, so far as they are substan-
tially the same as existing statutes, must be construed as con-
tinuations thereof, and not as new enactments.

Effect of Code upon past offenses.

6. No act or omission, commenced after twelve o'clock noon
ctf >the '4a6r on which -^Is code takes effect as a Jaw, ;U orlBSinal
or punishable, except as presoilbed or authorized by this code,
or by some of the statutes which it specifies as continuing In
force and as not affected by its provisions, or by some ordinance,
municipal, county, or township regulation, passed or adopted,
under such statutes and in force when this code takes effect.
Any act or omission commenced prior to that time may be
inquired of, prosecuted, and punished tn the same manner as if
this code had not beem passed.

46 Cal. 116: 66 Cal. 22».

Certain terms defined in tint senses in 'whioh they «re mtd in
tills Code.

7. Words used in this code in the present tenee ln<dude the
future as well as the (present; words used in the nsescuUne
gender include the feminine and neuter; the singular number
includes the plural, and the plural the singular; the word
"person" includes a corporation as well as a natural person;
writing includes printing; oath includes affirmation or declar>
ation; and every mode of oral statement under oath or afl^
mation is embraced by the term "testily," and every written
one in the term "depose"; signature or subscription includes
mark, when the person can [notj write, his name being written
near it, and witnessed by a person who writes his own name
as a witness. The following words, also, have in this code the
signification attached to them in this section, unless otherwise
apparent from the context:

One— The word "wilfully," when applied to the intent with
which an act is done or omitted, implies simply a purpose or
willingness to commit the act, or make the omission referred
to. It does not require any intent to violate law, or to injure
another, or to acquire any advantage.

Two — The words "neglect," "negligence," "negligent," and
"negligently," import a want of such attention to the nature or
probable consequences of the act or omission as a prudent man
ordinarily bestows in acting in his own concerns.

Three — The word "corruptly" imports a wrongful design to
acquire or cause some pecuniary or other advantage to the person
guilty of the act or omission referred to, or to some other

Four — The words "malice" and maliciously" import a wish
to vex. annoy, or injure another person, or an intent to do a
wrongful act, established either by proof or presumption of

Five — The word "knowingly" imports only a knowledge that
the facts exist which bring the act or omission within the pco^
visions of this code. It does not require any knowled«[e of the
unlawfulness of such act or omission.

Six — The word "bribe" signifies anything of value or advan-
tage, present or prospective, or any promise or undertaking to
give any, asked, given, or accepted, with a corrupt intent to

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influence^ unlawfully, tlie person to whom it is given, in his*
action, vote, of opinion, in any public or official capacity.

SeveBf— The word "vessel," when used with reference to
shipping, includes ships of all kinds, steamboats, canals, boats,
barges, and every structure adapted to be navigated from place
t* place for the transportation of merchandise or persons.

Eight — The word "peace officer'* signifies any one of the
officers mentioned in section eight hundred and seventeen of
this code.

Nine — The word "magistrate" signifies any one of the offi-
ce rs mentioned in section eight hundred and eight of this code.

Ten — The word "property" includes both real and personal

Eleven — The words "real property" are coextensive with
lands, tenements, and hereditaments.

Twelve — The words "personal property" include money,
goods, chattels, things in action, and evidences of debt

Thirteen — The word "month" means a calendar month,
unless otherwise expressed.

Fourteen — The word "will" includes codicils.

Fifteen — The word "writ" signifies an order or precept in
writing, issued in the name of the people, or of a court or
judicial officer, and the word "process" a writ or summons
Issued in the course of judicial proceedings.

Sixteen — Words and phrases must be construed according
to the context and the approved usage of the language; but
technical words and phrases, and such others as may have
acquired a peculiar and appropriate meaning In law, must be
construed according to such peculiar and appropriate meaning.

Seventeen — Words giving a joint authority to three or more
public officers or other persons, are construed as giving such
authority to a majority of them, unless it be otherwise expressed
in the act giving the authority.

Eighteen — ^When the seal of a court or public officer is
required by law, to be affixed to any paper, the word "seal"
includes an impression , of such seal upon the paper alone, or
upon any substance attached to the paper capable of receiving
a visible impression. The seal of a private person may be made
in like manner, or by the scroll of a pen, or by writing the word
"seal" against his name.

Nineteen — The word "state," when applied to the different
parts of the United States, includes the District of Columbia
and the territories, and the words "United States" may include
the district and territories. [Approved March 30, 1874; Amend-
ments 1873-4, p. 419. In effect July 1. 1874.]

58 Cal. 269: 67 Cal. 422; 68 Cal 363; 6S Cal. 438;
70 Cal. 533: 72 Cal. 616: 75 Cal. 631: 82 Cal.
468; 93 Cal. 566; 96 Cal. 177; 105 Cal. 639; 110
Cal. 371; 120 Cal. 135: 120 Cal, 202; 127 Cal.
819; 129 cal. 551; 130 Cal. 577.

What intent to defraud is sufficient.

8. Whenever, by any of the provisions of this code, an intent
to defraud is required In order to constitute any offense, It is
sufficient if an intent appears to defraud any person, association,
or body politic or corporate, whatever.

Civil remedies preserved.

9. The omission to specify or affirm In this code any liability
to damages, penalty, forfeiture, or other remedy imposed by

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10-15 PENAL CODE. 494

law and allowed to be recovered or enforced In any civil action or
proceeding, for any act or omission declared punishable herein,
does not affect any right to recover or enforce the same.

Proceedings to impeach or remove officers and others preserved.

10. The omission to specify or affirm In this code any ground
of forfeiture of a public office, or other trust or special authority
conferred by law, or any power conferred by law to Impeach,
remove, depose, or suspend any public officer or other person
holding any trust, appointment, or other special authority con-
ferred by law, does not affect such forfeiture or power, or any
proceeding authorized by law to carry Into effect such impeach-
ment, removal, deposition, or suspension.

Authority of courts-martial preserved.

11. This code doeft not affect any power conferred by law
upon any courtmartlal, or other military authority or officer,
to impose or Inflict punishment upon offenders; nor any power
conferred by law upon any public body, tribunal, or officer, to
Impose or Inflict punishment for a contempt.

94 Cal. 333.

Of sections declaring crimes punishable. Duty of court.

12. The several sections of this code which declare certain
crimes to be punishable as therein mentioned devolve a duty
upon the court authorized to pass sentence, to determine and
Impose the punishment prescribed.

93 Cal. 640; 110 Cal. 654.

Punishments, how determined.

13. Whenever in this code the punishment for a crime is left
undetermined between certain limits, the punishment to be
Inflicted In a particular case must be determined by the court
authorized to pass sentence, within such limits as may be pre-
scribed by this code.

Witness' testimony may be read against him on prosecution
for perjury.

14. The various sections of this code which declare that
evidence obtained upon the examination of a person as a wlt-
nees cannot be received against him In any criminal proceeding,
do not forbid such evidence being proved against such person
upon any proceedings founded upon a charge of perjury com-
mitted In such examination.

"Crime" and "public offense" defined.

15. A crime or public offense Is an act committed or omitted
In violation of a law forbidding or commanding It, and to which
Is annexed, upon conviction, either of the following punish-

1. Death;

2. Imprisonment;

3. Fine;

4. Removal from office; or,

5. Disqualification to hold and enjoy any office of honor,
trust, or profit In this state.

90 Cal. 278: 93 Cal. 439; 110 Cal. 656; 118 Cal.
460; 118 Cal. 4S2.

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Crimes, how divided.

16. Crimes are divided into:

1. Felonies; and,

2. Misdemeanors.

94 Cal, 574; 102 Cal, 428; 118 Cal. 460.

Felony and misdemeanor defined.

17. A felony is a crime which is punishable with death or
by imprisonment In the state prison. Every other crime is a
misdemeanor. When a crime, punishable by imprisonment in
the state prison, is also punishable by fine or imprisonment in a
county Jail, in the discretion of the court, it shall be deemed a
misdemeanor for all purposes after a Judgment Imposing a
punishment other than Imprisonment in the state prison.
[Amendments approved March 7, 1874; Amendments 1873-4, p.

49 Cal. 39&; 53 Cal. 428; 69 Cal. 606; 78 Cal.
306; 85 Cal. 87; 94 Cal. 574.

Punishment of feiony, when not otherwise prescribed.

18. Except in cases where a different punishment is pre-
scribed by this code, every offense declared to be a felony is
punishable by imprisonment in the state prison, not exceeding
five years.

Punishment of misdemeanor when not otherwise prescribed.

19. Except in cases where a different punishment is pre-
scribed by this code, every offense declared to be a misdemeanor
is punishable by Imprisonment in a county jail not exceeding
six months, or by a fine not exceeding five hundred dollars, or
by both. ^

68 Cal. 413; 85 Cal. 27; 86 Cal. 211; 102 Cal.
420; 114 Oal. 282; 114 Cal. 871; 124 Cal. 152.

To constitute crime there must be unity of act and intent.

20. In every crime or public offense there must exist a union,
or joint operation of act and intent, or criminal negligence.

68 Cal. 168: 82 Cal. 520; 93 Cal. 566; U6 Cal 77;
129 Cal. 551.

Intent, how manifested, and who considered of sound mind.

21. The Intent or intention is manifested by the circumr
stances connected with the offense, and the souna mind and
discretion of the accused. All persons are of sound mind who
are neither idiots nor lunatics, nor affected with insanity.

182 Cal. 329.

Drunlcenness no excuse for crime. When it may be considered.

22. No act committed by a person while in a state of volun-
tary intoxication is less criminal by reason of his having been
in such condition. But whenever the actual existence of any
particular purpose, motive, or intent is a necessary element to
constitute any particular species or degree of crime, the Jury
may take into consideration the fact that the accused was intox-
icated at the time, in determining the purpose, motive, or intent
with which he committed the act.

65 Cal. 278; 93 Cfel. 112; 93 Cal. 487; 95 Cal.
428? 100 Cal. 390; 103 Cal. 5r»; 115 Cal. 577; 122
Oal. 229; 123 Cal. 49; 132 Cat. 332.

Certain statutes specified as continuing in force.

23. Nothing in this code affects any of the provisions of the
following statutes, but such statutes are recognized as con-
tinuing in force, notwithstanding the provisions of the codes,

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23*24 PENAL OO0E. 496*

except so far as they have been repealed or affected by sub-
sequent isws:

1. All acts incorporating or chartering municipal cor-
porations, and acts amending or supplementing such acts.

2. All acts consolidating cities and counties, and acts amend-
ing or supplementing! such acts.

3. All acts for funding the state debt, or any part thereof,
&nd for issuing state bonds, and acts amending or supplement-
ing such acts.

4. All acts regulating and in relation to rhodeos.

5. All acts in relation to judges of the plains.

6. All acts creating or regulating boards of water com-
missioners and overseers in the several townships or counties*
of the state.

7. All acts in relation to a branch state prison.

8. An act for the more effectual prevention of cruelty
to animals, approved March thirtieth, ei^teen hundred and

9. An/^actite the suppression of Chinese houses of Ill-
fame, approfeoc^^M thirty-first, eighteen hundred and sixty-

ictrfoi; the i


10. An act relating tb^^ivf/Home of the Inebriate of San
Francisco, and to prescribe the ^oVers and duties of the board
of managers and the officers thereof, approved April first,
eighteen hundred and seventy.

11. An act concerning marks and brands in the county
of Siskiyou, approved March twentieth, eighteen hundred and

12. An act to prevent the destruction of fish in the
waters of Bolinas bay, in Marin county, approved March thirty-
first, eighteen hundred and sixty-six.

13. An act concerning trout in Siskiyou county, approved
April second, eighteen hundred and sixty-six.

14. An act to prevent the destruction of fish in Napa river
and Sonoma creek, approved January twenty-ninth, eighteen
hundred and sixty-eight.

15. An act to prevent the destruction of fish and game
in, upon, and around the waters of Lake Merrltt or Peralta,
in the county of Alameda, approved March eighteenth, eighteen
hundred and seventy.

16. An act to regulate salmon fisheries in Eel river,
in Humboldt county, approved April eighteenth, eighteen hun-
dred and fifty-nine.

17. An act for the better protection of stock-raisers in the
counties of Fresno, Tulare, Monterey, and Mariposa, approved
March twentieth, eighteen hundred and sixty-six.

18. An act concerning oysters, approved April twenty-eighth,
eighteen hundred and fifty-one.

19. An act concerning oyster-beds, approved April second,
eighteen hundred and sixty-six.

20. An act concerning gas companies, approved April
fourth, eighteen hundred and seventy.

This act, how cited.

24. This act, whenever cited, enumerated, referred to, or
amended, may be designated simply as The Penal Code, adding,
when necessary, the number of the section.

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Sec. 26. Who are capable of committing crimes.

27. Who are liable to punishment.

28. Discharges from prisons to be on a Monday.

Who are capable of committing crimes.

26. All persons are capable of committing crimes except
those belonging to the following classes:

One — Children under the age of fourteen, in the absence of clear
proof that at the time of committing the act charged against
them, they knew its wrongfulness.

Two — Idiots.

Three — Lunatics and insane persons.

Four — Persons who committed the act or made the omission
charged under an ignorance or mistake of fact, which disproves
any criminal intent.

Five — Persons who committed tlie act charged without being
conscious thereof.

Six — Persons who committed the act or made the omission
charged through misfortune or by accident, when it appears
that there was no evil design, intention, or culpable negligence.

Seven — Married women (except for felonies) acting under the
threats, command, or coercion of their husbands*

Eight — Persons (unless the crime be punishable with death) who
committed the act or made the omission charged under threats
or menaces sufficient to show that they had reasonable cause
to and did believe their lives would be endangered if they
refused. [Approved March 30, 1874; Amendments 1873-4, p.
422. In effect July 1. 1874.]

132 Cal. 829.

Who are liable to punishment.

27. The following persons are liable to punishment under
the laws of this state:

1. All persons who commit, in whole or in part, any crime
within this state;

2. All who commit larceny or robbery out of this state,
and bring to, or are found with the property stolen, in this

3. All who, being out of this state, cause or aid, advise or
encourage, another, person to commit a crime within this state,
and are afterwards found therein.

133 Cal. 2R2.

Discharges from prisons to be on a Monday.

28. Every person now confined in or that may hereafter be
committed to and confined in any penitentiary, prison, jaiU
house of detention, reform school, or other penal institution,
by whatsoever name the same may now or hereafter be known
In this state, under conviction for a penal offense, shall be dis-
charged on a Monday, regardless of the day of the week upon
which the term or time of confinement prescribed in the sen-


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-^0-3? PENAL CODE. 498

tence or terminated by credits or commutation would otherwise
• expire, unless the Monday upon or preceding the day In the
same week upon which the sentence or commutation w^ould
otlierwise expire shall fall upon or precede, within four days, a
legal holiday, in which event, such person shall be discharged
upon the first Monday preceding that, which will not be upon
or be followed by a holiday within four days. [Stats. 1901,



Sec. 3(). riassifiration of parties to crime.

31. Who are principals.

32. Who are accessories.

33. Punishment of accessories.

Classification of parties to crime.

30. The parties to crimes are classified as:

1. Principals; and,

2. Accessories.

Who are principals.

31. All persons concerned in the commission of a crime,
whether it be felony or misdemeanor, and whether they directly
commit the act constituting the oftense, or aid and abet in its
commission, or, not being present, have advised and encouraged
its commission, and all persons counseling, advising, or encour-
aging children under the age of fourteen years, lunatics or
idiots, to commit any crime, or who, by fraud, contrivance, or
force, occasion the drunkenness of another for the purpose of

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 40 of 77)