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

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Cal. 18.

121 People V. Woods, 84 Cal. 441.

122 People V. Hamberg, 84 Cal. 468.

128 People V. Stanley. 47 Cal. 113; People v. Lewis, 64 Cal.
404; People v. Epplnger, 109 Cal. 297.

124 People v. Bentley, 77 Cal. 7.

125 People v. Helblng, 61 Cal. 620.
i2« People v. Lewis, 64 Cal. 401.



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64 > ( II ■■■mi. LAW AKI> PROGXDURS.

he was convicted,^^^ even though the conviction be set
aside on the defendant's own motion."® And if a new
trial be granted the defendant may be tried only for the
degree of which he was convicted. This is upon the theory
that the conviction of the lesser is an acquittal of the
greater, and to try the defendant for a crime of which he
was acquitted would be to put him twice in jeopardy.^**
But a conviction of murder of the second degree is not a
bar to a subsequent conviction of murder of the first
degree on the re-trial, since murder of both degrees is but
one crime, consisting of the unlawful killing of a human
being with malice aforethought.*'"

And an acquittal or conviction of a minor oflFense is a
bar to another prosecution for the same act charged as a
higher offense, wherever the defendant on the latter might
be legally convicted of the former, had there been no
other prosecution."*- But where the jury is discharged,
because the evidence shows a higher degree of crime than
the crime for which the defendant was accused, it is an
acquittal.*'^ On a prosecution for receiving stolen goods
from several persons, an acquittal of receiving goods at
the same time from one of such persons, is a good plea

127 People V. Webb, 38 Cal. 478; People v. Gordon, 88 CaL
422; People v. Backus, 5 Cal. 275; People v. Apgar, 35

Cal. 391; People v. Schmidt. 64 Cal. 264.

128 People V. Apgar, 35 Cal. 389; People v. Gk)rdon, 99 Cal.
230; People v. Muhlner, 115 Cal. 307; People v. Defoor,
100 Cal. 158; People v. Schmidt, 64 Cal. 264.

129 People V. Gllmore, 4 Cal. 376; People v. Backus, 5 Cal.
278; People v. Apgar, 35 Cal. 391; People v. Schmidt,
64 Cal. 264; People v. Gordon, 99 Cal. 230; People v.
Defoor, 100 Cal. 158: People v. Muhlner, 115 Cal. 307.

130 People V. Keefer, 65 Cal. 235. The court has gone so
far as to hold in People v. Carty, 77 Cal. 213, that a
conviction of manslaughter under an indictment for
murder, reversed on appeal, would not sustain a plea
of once in jeopardy and former acquittal-upon the new
trial under the same indictment. This decision Is based
upon People v. Keefer, but no reasons are given for
this radical departure from the established authority.

131 People V. Ny Sam Chung, 94 Cal. 304; People v. Defoor,
100 Cal. 158.

182 People V. Hunckeler, 48 Cal. 331; People v. Ny Sam
Chung, 94 Cal. 307; People v. Smalling. 94 Cal. 115;
People V. Higgins, 59 Cal. 358.



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COMSTITUTIONAL BIQHTB OF DEFENDANT. 65

m bar to a prosecution for receiving any other stolen
goods at the same time. It is only one offense.*'*

PROGEEDINGS UNDER PLEA.

The plea of once in jeopardy to be of avail must be
pleaded by the defendant/'* and is insufficient unless
specially pleaded.*'' It must be entered on the minutes
of the court.*" But upon a discharge of the jury for
failure to agree it is not necessary for the record to show
the grounds of discharge.*" Under a plea of not guilty
the jury must render a verdict also upon the plea of once
in jeopardy.*"

PRESUMPTION OF INNOCENCE.



Upon entering a plea of not guilty the presumption of
I innocence arises in favor of the defendant which accom-
panies him throughout the trial,*'® and does not cease
upon the submission of the cause to the jury,**® but fol-
lows the jury on its retirement to consider the verdict, and
will avail to acquit unless it be overcome by sufficient proof
of guilt. The evidence must be examined by the light of
that presumption, and unless the evidence is sufficiently
strong to overcome it, the defendant is entitled to an
acquittal.*** It does not cease to operate until the jury has
reached the conclusion of the guilt of the defendant beyond
a reasonable doubt.*** No presumption is raised against
the defendant by law, if he does not attempt to explain
suspicious ciucumstances. And in no case, except where
the burden of proof shifts to the defendant, is it incum-
bent upon him to explain anything. He has a right to
1 stand mute and demand that the people make the case

, 188 People V. Willard, 92 Cal. 482.

184 People y. Bennett. 114 Cal. 56.
I 185 People V. Lee Yune Chong, 94 Cal. 379.

■ "« People V. O'Leary, 77 Cal. 32.

»37 People V. Greene, 100 Cal. 140.

i«« People V. Hamberg, 84 Cal. 468; People v. Tucker, 116
Cal. 339.

'«» People V. Wlnthrop, 118 Cal. 85.
' "0 People V. McNamara, 94 Cal. 514; People v. O'Brien,

106 Cal. 104.

i« People V. Wlnthrop, 118 Cal. 85.
] 1*2 People V. Arlington, 131 Cal. 231.



SRIMe8 - 6



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66



CRIMUfAL LAW AND PROCEDURE.



against him beyond a reasonable doubt."' It is the only pre-
sumption that is allowable in criminal cases,*** and is not
overcome by another presumption.*** There cannot be two
presumptions standing together, one for the guilt and the
other for the innocence of the accused.*** Consequently
the presumption of knowledge*** of the continuance of a
fact once shown to exist ;**• of the continuance of life,*** or
of marriage,***^ are all overcome by the presumption of inno-
cence.

RIGHT TO BAIL.

Under our constitution bail is permitted in all cases

f before conviction, unless for capital offenses, when the

> proof of guilt is evident or the presumption great.*'* It

^<C^ is a matter of discretion in all cases where the punishment

'^is death, but a matter of right in all other cases.*** Upon

'an application for bail in capital cases the inquiry which

arises is upon the question of whether the proof is evident

or the presumption of guilt great. Formerly an indictment

was regarded as a mere accusation which the grand jury

ought to find, if probable evidence were adduced in its

support. But great authorities have taken a more merciful

view of the subject, and considering the ignominy, the

dangers of perjury, the anxiety of delay, and the misery

of the prisoner, have argued that the grand inquest ought,

as far as evidence before them goes', to be convinced of the

guilt of the defendant. An indictment for capital cases of

itself furnishes a presumption of guilt of the defendant

148 People V. Streuber, 121 Cal. 431.

144 People V. Douglass, 100 Cal. 1; People v. Strassman,
112 Cal. 687.

145 People y. Sanders, 114 Cal. 216.

146 People V. Roderigo, 49 Cal. 11; People v. O'Brien, 130
Cal. 1; People v. Douglass. 100 Cal. 1; People v. Strass-
man, 112 Cal. 687; Hunter v. Hunter, 111 Cal. 261;
People V. Kruslck, 93 Cal. 79.

14T People V. Blackman, 127 Cal. 248.

148 People V. Strassman, 112 Cal. 687.

149 People V. Feilen, 58 Cal. 218; White v. White, 82 Cal.
448.

160 Hunter v. Hunter, 111 Cal. 261.

161 Ex parte Strange, 59 Cal. 416; People v. Tinder, 19
Cal. 539.

in2 People y. Tinder, 19 Cal. 539; Ex parte Brown, 68 Cal.
177.



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CONSriTUTIONAL RIGHTS OF DBFBNDANT. 67

too great to entitle him to bail as a matter of right under
the constitution. It creates a presumption of guilt for aU
purposes except the trial before the jury. If it does not
furnish such a presumption it will not justify the exaction
of bail or the detention of the defendant. And the finding
o£ the grand jury cannot be reviewed on an application for
bail or its effect, in creating such a presumption, repelled by
affidavits or oral testimony as to guilt or innocence.***
After an examination before a magistrate where the evi-
dence adduced will support a conviction/'* or the evidence
is such that it cannot be said that a verdict requiring a
capital sentence thereon should not be permitted to stand,
the application for bail should be denied.^*^* But in mur-
der cases after indictment where the intent to kill is not
shown, bail should be allowed."* Upon arrest the pris-^
oner must be taken before a magistrate in the county Ap
-where the warrant was issued,**^' and where the offense is ^/v^
not punishable with death he may be taken before the mag- A/

istrate in the county in which the warrant is issued or in *

v^hich he is arrested, for the purpose of getting bail. But
he cannot in any case be taken before the magistrate of
another county."® It is not necessary for the defendant
to sign the bail bond,"" nor need it have the endorsement
of approval if the sureties justify."®

TAKING IN CUSTODY AFTER ADMISSION TO BAIL.

Upon the finding of an indictment for a felony against
a person released on bail, taken before the finding of the
indictment upon the examination before the magistrate, he
may be arrested on a bench warrant and required to give
bail in the Superior Court."^ It is proper for the court
to order the defendant into custody as soon as <the trial is

158 People V. Tinder, 19 Cal. 542.

154 In the Matter of Troia, 64 Cal. 152.

iw Ex parte Curtis, 92 Cal. 188.

"6 Ex parte Wolff, 57 Cal. 94.

"7 Ex parte Hung Sin, 54 Cal. 102; People v. Fick, 89 Cal.

144.
1^8 Mansir v. Superior Court, 65 Cal. 582.
1^^ People Y. Love, 19 Cal. 677.
i«o People V. Penniman, 37 Cal. 271.
i«i Ex parte Cook, 35 Cal. 107.



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68 oBnaNAL law amd procedure.

commenced,*** and it is the duty of the court to order the
defendant into custody upon the retirement of the jury to
insure his presence if convicted.***

AMOUNT OF BAIL.

The sole purpose of requiring bail is to cause the appear-
ance of the accused to answer the charge against him. And
the extent of the pecuniary ability of a prisoner to furnish
bail is a circumstance among other circiunstances to be con-
sidered in fixing the amount, but is not in itself con-
trolling.*** The amount of bail is usually within the dis-
cretion of the court or magistrate fixing it,*** and will not
be reviewed by an appellate court unless it clearly appears
that the amount fixed is excessive per j^.***

BAIL AFTER CONVICTION.

After conviction of an offense not punishable with death,
a defendant who has appealed may be admitted to bail:
(i) as a matter of right when the appeal is from a judg-
ment imposing a fine only; and (2) as a matter of discre-
tion in all other cases.**^ When the admission to bail is a
matter of discretion, the court or officer to whom the appU-
cation is made must require reasonable notice thereof to be
given to the district attorney of the county.*** After an
indictment, for the purposes of bail, a presumption of guilt
arises against the defendant.*^* It arises for all purposes
except for that of a trial before a jury.*^® Bail after con-
viction is a matter of discretion, not of right, and is gen-
erally not allowed ;"* and in felony cases should be granted

i«2 People V. Williams, 59 Cal. 674.

i«3 People V. Beauchamp, 49 Cal. 41.

i«* Ex parte Duncan, 54 Cal. 75.

165 People V. Duncan, 54 Cal. 75.

i«« In re Winiams, 82 Cal. 183; E:x parte Duncan, 54 Cal. 75.

i«7 Penal Code 1272.

i«« Penal Code 1274.

189 Ex parte Ryan, 44 Cal. 553; In re Wimams, 82 CaL
183; Ex parte Duncan. 54 Cal. 75.

"0 People V. Tinder, 19 Cal. 542.

171 Ex parte Brown, 68 Cal. 176; Ex parte Smith, 89 CaL
79; Ex parte Turner, 112 Cal. 629; People r. Perdue,
48 Cal. 552; People v. January, 70 Cal. 35; Bx parte
Veil. 41 Cal. 31; Ex parte Hoge, 48 Cal. 5; Ex parte
Smallman. 54 Cal. 36.



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AB80N. 69

only under circumstances of an extraordinary character.^^*
It should be granted when it appears that the imprison-
ment would result in death.^'* Application for bail after
conviction should be made in the first instance to the trial
court,"* and it will not be granted by the Supreme Court in
the first instanle."'*

172 Ex parte Smith, 89 Cal. 79; Ex parte Turner, 112 CaL
629;, Ex parte Marks, 49 Cal. 680; People v. Booker, 61
Cal. 317; Ex parte Smallman, 54 Cal. 36; Ex parte
Brown, 68 Cal. 183; People y. Marshall, 59 Cal. 386.

178 Ex parte Azhderian, 123 Cal. 512.

174 People V. Perdue. 48 Cal. 552.

178 People V. January, 70 Cal. 34; Ex parte Turner. 112
Cal. 629.



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SPECIFIC CRIMKS.



CHAPTER IV.



ABDUCTION.

[Penal Code, sees. 265, 267.]



DEFINED.

Is the taking of a woman unlawfully, against her will,
and by force, menace or duress compelling her to marry or
be defiled.^ But the crime most often encountered is the
taking away of a female under the age of eighteen years
from her father, mother, guardian or other person having
the legal charge of her person without their consent for the
purpose of prostitution.* If with the consent of the legal
custodian, or there is no legal custodian, the crime is
seduction under Penal Code, section 266.

PURPOSE OF THE LAW.

The statute against the abduction of females under
eighteen years from their custodians is intended to pro-
tect the chaste and reclaim the erring; to protect parents
and guardians in the custody and care of minors.*

THE TAKING.

While the taking is a material ingredient of the offense,
it may be accomplished when the girl is merely induced, or
yields to the persuasion of the defendant to go with him.
Her consent is immaterial and no defense. No matter how
willingly she may go, the crime is committed if she is taken
without the consent of her legal custodian. No force or
violence need be used.*

1 Penal €k>de 266.

2 Penal Ck)de 267

8 People y. Demousset. 71 CaL 612; People v. Fowler, 88
Cal. 136; People v. Cook. 61 Cal. 478.

4 People v. Demouasttt, 71 Cal. 618; People v. Marshall,
59 Cal. 886; People v. Oooik, 61 Cal. 478; People v. Fow-
ler. 88 Cal. 136.



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72 CRIMINAL LAW AND PROCEDURE.

LEGAL CUSTODIAN

Is the person having actual custody of the child. The
father haa by law the legal charge of the persons of his
children until they arrive, at the age of majority.* But
when the minor female is in the custody of her mother, the
mother is legally in charge of the person of her daughter,
and it is no defense that the father had the better right to
the custody.* And the crime is consummated even when
the female under age has abandoned her home and fled
from her guardianship, for she is in Contemplation of law
in charge of her father.^

PREVIOUS UNCHASTITY.

The gist of the offense is the taking away of the child
against the will of her lawful custodian for the purpose of
prostitution, and it is immaterial that she had been pre-
viously unchaste.® .(

KNOWLEDGE OF AGE.

It is likewise ho defense that the defendant did not
know the girl was under age. One who violates the stat-
utes acts at his peril and cannot defend himself on the plea
of ignorance as to the age of the child.*

EVIDENCE.

The family Bible may be introduced to prove the age of
the female.*** It is not necessary that there should be
express testimony to show that the purpose of the taking
wis to make the girl a prostitute, but the accused is to be
judged by acts rather than words.** Evidence that the
girl was taken by a procuress to a house of prostitution,
ostensibly to work as a domestic without disclosing to the
girl or to her father the character of the place, is stifH-

5 People V. Ck>ok, 61 Cal. 478.
« People V. Fowler, 88 Cal. 136.

7 People V. Cook, 61 Cal. 478.

8 People V. Demousset, 71 Cal. 612; People v. Cook, 61
Cal. 478.

9 People V. Fowler, 88 Cal. 136/

10 People V. Slater, 119 Cial. 620.

11 People T. Marshall; 69 Cal. 886.



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ABDUCnOM. 78

cient to warrant a conviction." The proof of legal custody
is required only when the child is taken from some person
other than parent or guardian."

INDICTMENT.

It is not necessary to allege that the defendant knew the
girl was under eighteen years of age, nor that the mother
had legal charge of her person. An allegation of the tak-
ing from the person having legal charge is necessary only
when the female is taken from a person other than parent
or guardian.**

PENALTY.

For taking a woman unlawfully and by force, menace or
duress, compelling her to marry or be defiled, imprisonment
in the state prison from two to fourteen years. For taking
a female under the age of eighteen years for the purpose of
prostitution, imprisonment in state prison not exceeding
five years and a fine not exceeding one thousand dollars.

FORM — ABDUCTION.

The said A B at the time and place aforesaid, a certain
woman, to wit, C D, unlawfully, feloniously and against
her will, did take and abduct, and her, the said C D
unlawfully and feloniously by force, menace and duress,
did compel to be defiled [or to marry him or some other
person, naming him.]

FORM — MINOR FEMALE FOR PROSTITUTION.

. That the said A B did wilfully, unlawfully and felo-
niously take away one R K, then and, there being an unmar-
ried female under the age of eighteen years, to wit, of the
age of — years, from and out of the custody of M K, her
mother [or other legal custodian, stating it] without the
consent and against the will of her said mother, for the
purpose of prostitution."

12 Ex parte ESstrado, 88 Cal. 316.

1* Same case.

i« People y. Fowler, 88 Cal. 136; Ex parte Bstrado, 88 CaL
316.

i» People V. Fowler, 88 Cal. 136. Bat it seems that when
the female is taken from some one other than parent or
guardian, there should be a further •alle9ati<Hi that the
person from whom she was taken had the legal custody.
Ex parte Estrado. 88 Cal. 316.



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CHAPTER V.



ABORTION.

[Penal Code, sees. 274, 275.]



DEFINED.

It is the providing, supplying or administering, or pro-
curing any pregnant woman to take any medicine, drug
or substance, or the using or employing any instrument or
other means whatever, with intent thereby to procure the
miscarriage of such woman, when the same is not necessary
to preserve her life ;* or the soliciting of or taking any such
medicine, drug or substance, or the submitting to such
operation by a pregnant woman, with intent thereby to pro-
cure a miscarriage, when the same is not necessary to pre-
serve her life.* The woman is a competent witness to
prove not only the fact of pregnancy, but all the circum-
stances tending to show it. Her uncorroborated testimony
is not sufficient to convict, but there need be no corrobora-
tion of the particular method employed to produce the
abortion. The essential element is the criminal intent and
evidence tending to show such intent is a sufficient cor-
roboration.* It is a misdemeanor to sell certain poisonous
substances unless to be used for a legitimate purpose.*

PENALTY.

For procuring an abortion, imprisonment in state prison
from two to five years ; for submitting to an abortion, from
one to five years.

1 Penal Code 274.

2 Penal Code 276.

8 People V. JoMelyn, 89 CaL 89S.
4 Statutes 1880, p. 102.



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ABORTION. 75

FORM — ^FOR PROCURING ABORTION.

Wilfully, unlawfully and feloniously did provide, supply
and administer to one C D, a pregnant woman, a certain
medicine, drug and substance [or used and employed upon
one C D, a pregnant woman, a certain instrument, to wit:

] with intent thereby to procure the miscarriage of

the said C D, the same then and there not being necessary
to preserve the life of the said C D.

FORM — SUBMITTING TO ABORTION.

Said C D, being then and there a pregnant woman, wil-
fully, unlawfully and feloniously did solicit and take a cer-
tain medicine, drug and substance [or submitted to an
operation] with intent thereby to procure a miscarriage, the
same then and there not being necessary to preserve the
life of the said C D.

ACID, see THROWING VITROL.



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CHAPTER VI.

ADULTERY

(Statntea. 1871-2. p. 380.]






DEFINED.

It IS the offense of living in a state of open and notorious
cohabitation and adultery and is a misdemeanor.* But if
tyiro persons, each being married to another, live in a state
of open and notorious cohabitation and adultery, each is
guilty of a felony.^ A recorded certificate of marriage or
a certified copy thereof, there being no decree of divorce,
proves the marriage. Under this section the record of the
marriage certificate being proved does not exclude other evi-
dence in proof of the marriage. And evidence of witnesses
may be introduced to that effect.* Adultery was not a
crime at common law, nor is it under the statute. It is the
living together in open and notorious cohabitation and
adultery that is criminal. Mere adultery without the noto-
rious cohabitation does not constitute the offense.*

PENALTY.

If a misdemeanor, a fine not exceeding one thousand dol-
lars, or imprisonment in the county jail not exceeding one
year, or both. If a felony, imprisonment in state prison
not exceeding five years.

FORM — ADULTERY.

That the said A B, between the — day of , 190 — ^

.nd the — day of , 190 — , did unlawfully, wilfully and

feloniously live in a state of open and notorious cohabitation

1 People V. Gates, 46 Cal. 63.
s Statutes. 1871-2, p. 380.
« People V. Gates, 46 Cal. 63.

4 People y. Gates, 46 Cal. 63; Ex parte Thomas, lOS CaL
497; White v. White. 82 Cal. 449.



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ADULTERY. 77

and adultery with one C D, and the said A B not being
then and there lawfully married to the said C D.

FORM — WHERE EACH IS MARRIED.

That between the — day of , 190 — , and the — day

of , 190 — , the said A B being then and there married

to a woman other than C D, did live in a state of open and
notorious cohabitation and adultery with said C D, and the
said C D being then and there married to another than the
said A B, and the said A B and the said C D not being then
and there lawfully married to each other.

ADVERTISEMENTS, see TRESPASSES.



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CHAPTER VII.



ARSON.

[Penal Code, sees. 447-465.]



DEFINED.

Arson is the wilfi^. and malicious burning of a building-
with intent to destroy it.*

WHAT CONSTITUTES A BUILDING.

Arson as defined by the common law» is an offense against
the security of a habitation rather than against the prop-
erty which was burned ; but under the code the scope of the
definition is materially extended. Any house, edifice, struc-
ture, vessel or other erection capable of affording shelter to
human beings, is a building within the meaning of the code.
It is not necessary that such an erection had been
intended or used as a habitation. It is sufficient if it is
capable of affording shelter for human beings;^ or is
appurtenant thereto or connected with an erection so
adapted.* Thus where a fire was set to a wine cellar so
near to the dwelling house that the flames necessarily com-
municated with and destroyed the dwelling, it was held to
be a burning of the dwelling.*

OWNERSHIP.

A person cannot be guilty of arson in burning his own
property unless there be a qualified property in another. A
building to be the subject of arson must be at least in the
possession or occupancy of another at the time of the

1 People V. Fong Hong, 120 Cal. 685; People v. Mooney,
127 Cal. 339,

2 People V. Fisher, 51 Cal. 320.

3 Penal Code 448; People v. Russell, 81 Cal. 617.
♦ People V. Hiltel, 131 Cal. 577.



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ARSON. 79

burning." But the ownership of title is immaterial when
the possession and occupancy is in another;* and in such
cases the landlord may be guilty of arson in burning the
house.^ Where occupied by a tenant, however, the build-
ing may be considered as the property of the landlord where
the offense is committed by a person other than the owner;*
and a burning by the tenant under such circumstances will
be arson.* It seems that the husband may be convicted of
arson for the burning of a building belonging to his wife.**

THE BURNING.

When the wood of the house is chaired in a single place
so as to destroy any of its fiber, tnt- Ofcjnje is complete,
though there be no blaze and the fire is extfeAished. But
where the wood is only blackened and no fibeil'yAlatroyed
there is no burning within the meaning of the code&^Slfd
the burning must be of the building or some part of ii^/^
But this may be accomplished although the fire is set to ■*
another building from which the flames necessarily com-
municated.*'

DEFRAUDING THE INSURER.

While as has been seen, the burning of one's own house
is not arson, yet the code has made it a felony to burn it
with intent to defraud the insurer." The guilt in such



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 7 of 77)