California Charles Howard Fairall.

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

. (page 73 of 77)
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Errors favorable to defendant • . . . 476

in proceedings, when not material ^ 1404

must be argued 467

presumed prejudicial 1 471



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IMDBX. 789

Page. Sec.

Errors, presumption against on appeal 469

specification of in bill of exceptions. 466

Etcapet 140 106

107

assisting prisoner to 109

attempt to make 106

" 107

breaking doors to retake 856

carrying into prison things to aid 110

expense of trial for Ill

forms of indictment for 140

instruction on 421

jurisdiction of ' 46 787

pending appeal, effect 460

penalty for 140

retaking of 864

unauthorized release pending appeal is 450

Estates, appraisers of accepting reward 658}

Evidence 361

acts and declarations in presence of accused.. 874

admissible under plea of not guilty 1020

admissions as 370

alibi 391

anticipating defense 390

bill of exceptions presumed to contain all 466

burden of proof 888

circumstantial 361

conduct of accused 375

confession as 368

conflicting not reviewed on appeal 472

corpus delicti 37«$

declarations as 371

depositions at preliminary examination 385

destroying 186

expert 384

extortion 144

flight of defendant as evidence 375

hearsay Includes what: 388

hypothetical question must be based on 390

in abortion and seduction 1108

In arson 82

in assault to murder 91

in bigamy 1106

in breach of undertaking 718

In bribery 98

In burglary 103

in conspiracy 366 1104

In embezzlement 134

in false pretenses 156 1110

In forgery 161

In gaming 168

In homicide 203

In Incest 210

In larceny 220

In perjury 242



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790



INDEX.






Evidence in rape 260

In receiving stolen goods 269

In robbery 2(56

in threatened offenses 704

In treason IIOJ

Instruction on fiedlure to produce 418

in seduction 269

Judicial notice Zh6

new trial for newly discovered 1181

objections to 474

of accomplice 363

of character of defendant 381

of experiments 383

of flight, instruction on 421

of motive 192

of other offenses, when admissible 378

offering false 132

on selling lottery tickets 1100

on trial for forging bank bills 1107

preparing false 134

preponderance to prove Insanity 40

possession of stolen property as 220

presumptions of 387

privileged communications as 377

receivable before grand jury 910

reporter's notes as 386

reporter's notes at former trial, as 66

res gestae in homicide 196

review of on appeal 471

rules of applicable to criminal cases 1102

sufficiency of when reviewable on appeal 473

upon challenge to juror 336

when declarations are admissible as 371

when declarations of co-conspirator admissible. . 367
when prior difficulty may be shown in homi-
cide 194

written statements by witness not admissible. . 66

motion to- strike out, when allowed 476

necessary to find Indictment 921

see Circumstantial Bhrldence.

Examination, authentication of testimony at 869

defendant may produce witnesses 860

defendant, protected from forced 56

postponement of 861

depositions to be read at 864

exclusion of spectators at « 868

of witnesses 369

of witnesses, presence of defendant .-. 866

when to be completed ^ 861

Exceptions by defendant, may be taken to what 1173

by defendant, when taken .* 1170

defined 464

how settled 1174

may be taken to what 1172

Excusable homicide 182



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INDEX. 791

Page. Sec.

Execution, date of may be changed 451

day of, where named 447

imprisonment pending part of punishment for

murder 461

of death, penalty where to take place 122^

of Judgment other than death 1213>

order fixing date of 446

Executor, embezzlement by 506^

Exempt fireman, officer issuing false certificate as 649

Exhibition of deformed persons 400

Experiments, evidence of 383

Expert evidence 384

Explosives, unlawfully keeping 375

Express company transporting game 627a

Express maiice, see Malice Aforethought.

Extortion 143

by executive officer 70"

by judicial officer 94

by threat to publish libel 257

defined SIS-

evidence 144

force or fear essential 143

forms for indictment 144

illegal fees 143

in obtaining signature 522^

indictment for 144

kidnapping for 209

penalty for 144 520

penalty for attempt 524

sending threatening letters 143 523

under color of official right 521

what threats may constitute 51Sl

Extradition 484

affidavit on information and belief 485

arrest and detention, proceedings on 485

illegal means used does not impair jurisdic-
tion 484

power of governor on 485.

proceedings for the arrest and detention of

fugitives pending 1560»

proceedings must have been commenced in

demanding state 485

trial only on charge for which demanded 484

warrant, when issued for fugitive 484

when matter of comity 484

Facts, assuming in instructions 404

issue of defined 104!

issues of, how tried 104!

False certificate by officer 16!

False entries' in books of corporations 146

form for indictment for 146

penalty for 146



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782 INDEX.

Page. Sec

False evidence, procuring of 241

False imprisonment 148

form for indictment for 148

defined 2$6

penalty for 148 287

False measure defined 552

False personation .^ 149

defined 528

defrauding by 629

form for indictment for 149

in acknowledging instruments 529

of bail 529

penalty for 149

to procure property 530

False pretenses 151

concerning birth of infant 156

distinguished from larceny 155, 218

doctrine of caveat emptor not applicable 154

evidence 156

evidence on trial of 1110

indictment and form for 157

intent of defrauded party not material 153

jurisdiction of Superior Court 49

negligence of defrauded party not material.... 154

obtaining property by 531

penalty for 156

property subject of 154

verdict 156

what are 163

False registration of animals 537i

False reports, made by officer of corporation 564

False representations, married person selling land by 634

False signature necessary in forgery 160

False statement, consignee obtaining property by 536

False swearing, see perjury.

False weight defined 562

Falsification of public records, no limitation 47 799

Faro, game of 168

Fear, alone, no justification of homicide 198

an element of robbery 264

essential to robbery 212

necessity of in extortion 519

Federal Jurisdiction, depends on federal statute 44

does not attach by ownership of land 44

matter of defense 45

over Indians 45

Federal prisoners must be received at state prison.. . 1581

Felony, arrest for without warrant 836

assault to commit 221

barred by statute, conviction of misdemeanor

under not allowed 48

defendant must be present at trial of 1043



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INDEX. 798

Page. Sec.

Ftlony defined 33 17

dismissal not a bar in 1387

how punished 18

impeachment of ' witness 349

imprisonment in state prison only in 450

limitation to certain 800

must be tried by jury 1042

preliminary examination cannot be waived 283

punishment for after prior conviction 666

statute of limitation on 47

when arrest may be made for 840

Females, exhibition in public places prohibited when.. 306

employing to sell liquor at theatres prohibited. . 303
see Abduction, see Seduction, see Rape.

Ferry, crossing without paying toll 389

maintaining without authority 386

violating undertaking to keep 387

Fictitious bill, making, passing or altering 476

Fictitioue instruments, making of not forgery 161

Fictitious name, signing of not forgery 160

Fine, defendant entitled to discharge on payment of. . 1457

duration of imprisonment to pay 1205

execution must issue for 1214

failure to pay over 427

from game laws, disposition of 631b

how disposed of 1570

imprisonment by justice of the peace for non-
payment of 1446

imprisonment by justice of the peace till paid.. 1456

judgment to pay a lien 1206

non-payment of, Imprisonment for 449

violation of fish act, disposition of 637

when may be added to imprisonment 672

Fine and imprisonment, how imposed 448

judgment for, hpw executed 1215

Fire, larceny of goods saved from 500

obstructing attempts to extinguish 385

setting woods on 384

Fire department, issuing false certificates . 649

Fire arms, selling to Indians 398

Fish, catching with seine 634

closed seasons for 628

placing screen in stream to prevent fish from

running 629

preservation of 628

use of explosives in taking 636

Fish ladder, when to be constructed 637

Fish laws, fines under disposition of 637

Flight, instruction on evidence of 421

as evidence 375

Flume, injuries to 607

Poods, adulteration of 382

disposing of tainted 383



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794 INDEX.

Page. Sec.
Force to be used in making arrest 843

Forcible entry and detainer 41S

f» »» i» i» 419

Ford, maintaining without authority 3SS

Foreign corporation, when director presumed to assent

to proceedings 571

Forfeiture, none of property of convict 67T

to specify ground 10

Forfeiture of bail, discharge of 13M

Foreman of grand Jury, appointment of 901

oath of 90S

to administer oaths 918

to present presentment to court 9Zt

Forged instrument, attempting to pass 35

offering for record 115

Forgery 1^^

actual injury not essential 1^0

evidence 1^1

. false signature necessary 160

form of indictment 16*

guilty knowledge essential in uttering 161

how pleaded ^^^

idem sonans applies 161

indictment 1^3

indictment may be for one or all acts enu-
merated 166

instruments susceptible of 158 470

intent to defraud essential 160

invalid Instruments 159

making fictitious instruments not 161

making and uttering are both 160

making, passing or uttering fictitious bill 478

of bank bills, evidence on IIJJ

of entry in books of record *J1

of seal ill

of telegraphic messages *74

or marking returns at election 50

passing or receiving forged paper 476

penalty for If* *^*

signature by agent not 160

signing fictitious name not 160

variance Jf f

verdict • ]li

writings nudum pactum not subject to 169

Form for verdict by reason of insanity 440

Former acquittal, for variance IJJl

what is -^"21

Former offense, punishment after ! 666

Fraud by falae personation 529

in destruction of vessel 539

in keeping books of corporation 568

in making second mortgage 5S8

in organization of corporation 558



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INDEX. 796

Page. Sec.

Fraud in stock subscriptions 557

in weights 381

practiced to affect market 395

Fraudulent bills, presenting for allowance 72

Fraudulently taking water 167

Freehold, severing from 602

Freight cars, putting passenger cars in front of 392

Fugitive from Justice 484

admission to bail 1552

district attorney must be notified of arrest of. . 1553

duty of district attorney on arrest ol 1554

from this state expense of apprehending and

returning 1557

magistrates to issue warrant for apprehension

of 1649

officer not entitled to compensation for procuring

surrender of 1558

officer taking fee for arrest of 144

proceedings against to be returned to the super-
ior court 1556

proceedings for the arrest and detention of 1550

when and what time to be committed 1551

when the party arrested to be discharged 1555

when to be delivered up 1548

Gambling, enticing to place of 318

see Gaming.

Game, limit of day's bag of 626d

netting or trapping of prohibited 631

preservation fund 631b

shipments of must be labeled 627b

transportation of prohibited 627a

trespass to kill 627

Game laws 171

disposition of fines from 631b

forms for indictment 171

penalty for violation of / 631a

Gaming 168

banking game 168

court takes judicial notice of character of game 169

duty of officer to prosecute for 335-

form for indictment 170

evidence 168

expert evidence of character of game 16»

indictment 169

instructions on 438

penalty 169

permitting in house owned or rented 331

pretending to give authority to conduct 337

privileges of witnesses in prosecution for 334

prohibited ones defined 330^

winning by fraudulent means 332

witness refusing to attend trial 333

Gas, larceny of 498^

Qasplpes, injury or destruction of 624



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Page. Sec

^neral verdict, form of 1151

•Qlanders, animal having to be killed 402^

exposing animal with 402

Qold coin, value of property by on punishment 67S

Good behavior, credits for 451 1590

-Qeeda made by convict, limiting sale of 679a

Governor may declare county in state of insurrection 732
may grant reprieves, commutations and par-
dons 1417

may offer reward for apprehension of fugitives 1547
may require opinion of supreme court on death

judgment 1219

may revoke proclamation declaring insurrection 733

may suspend conviction of treason 1418

must communicate pardons, etc., to legislature. . 1419

to order out military when 725

transmission of conviction on judgment of death

to 1218

Grand Juror, acting after challenge allowed 164

disclosing fact of finding indictment 168

may be excused by judge when 297

oath of 904

qualification of 297

Grand Jury, appointment of foreman 902

challenge to 298

challenge to individual grand juror 896

challenge to individual juror 894

challenge to panel 895

charge of court 905

decision of on challenge 898

disclosing what transpired before 169

duty and authority of 295 928

effect of challenge to individual juror 900

effect of challenge to panel 899

etfect of dismissal of biH by 296

effect of dismissal of charge 942

entitled to access to prison 924

evidence receivable before 919

foreman to administer oath 918

foreman to present indictment 944

how composed 296

how selected 297

how summoned 297

matters to be inquired into by 923

may order suit to recover county moneys 929

member not to be questioned for conduct on 927

members must declare knowledge of crime 922

not bound to hear evidence for defendant 920

number concurring in indictment 940

oath of foreman 908

objections to, how taken 901

obligation to secrecy 296

order for special 908

order for special, how executed 909

powers of 915



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INDEX. ?*?

Page. Sec.

presumption In favor of 29(5

resubmission of charge to 99S

right of defendant before 296

secrets of to be kept 926

sending insulting letters to. 112

special, how formed 910

term of existence 297

to return deposition when no indictment found 941

trial of challenge to 897

twelve to concur in presentment 931

when indictment ought to be found by 296

when special directed 907

when to be discharged 906^

when to find indictment 921

when to investigate proceedings against corpor-
ation 139&

who adviser of 925

who may be present at session of 925

witness defying 112

Grand larceny, assault to commit 220

defined 487

penalty for 489*

see Larceny.

Graveyard, see cemetery.

Grouse, closed season for 62^

possession of in closed season 626k

Guideposts, malicious injury to 590

Guilty, plea of, how entered 1018

plea of, how made 317

verdict of imports what 443

Gunpowder, destroying building by means of 601

endangering lives by means of 601

unlawfully keeping 375^

Habeas corpus 478

application for, how made 1474

a remedy for what 478

burden on petitioner 481

concealing persons entitled to writ of 364

confining prisoners discharged on ?63

defect In commitment not ground of discharge 1488

defect of form of writ immaterial 1495

denial does not bar another application 482

disposition of petitioner pending return 1494

effect of discharge for defective commitment. . 481

errors and irregularities not reviewable on 479

examples in which writ will He 479

examples in which writ will not lie 479

hearing on return of writ 1483

inquires only into jurisdiction 479

r.ot appealable 481

office of writ 478

on commitment without probable cause 483

petition for, what to contain 1474

petitioner may be committed to legal custody.. 1493

proceedings on disobedience of writ 1479

proceedings on hearing 1484



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798 IMDBX.

Pa^. Sec
Habeas corpus proceedings where commitment is de-

fecUve 1489

refusing to issue or obey 36S

releases for conviction by court without legal

existence 48

return on writ must contain what 1 480

return to warrant 1500

to admit to bail 482 1286

" " 1490

penalty for failure to issue or obey writ 1505

warrant may issue for persons charged with

illegal restraint 1498

warrant on how executed 1498

when body must be produced 1481

when court must discharge 1485

when remand party 148b

when hearing may be had without body 1482

when imprisonment after discharge permitted. . 1496

when judge to remand 1492

when party may be discharged or remanded . . . 1501

when petitioner may be discharged 1487

when warrant may issue instead of writ 1497

when writ will issue out of county 482

who may prosecute writ 1473

writ by supreme court returnable before super-
ior 482

writ by whom granted 1475

writ must issue without delay 1476

writ to contain what 1477

writ how served 1478

writs and process, by whom issued and when

returnable 1503

writs and process, when may be issued and

served 1502

writs and process, where returnable 1504

Harbor, throwing overboard ballast in 613

Harbor tolla, unlawful collection of 642

Health laws, neglect to perform duties under 378

violation of 377

Hearsay evidence 383

Highway robbery, see robbery.

Hiohways, malicious injury to 588

racing upon 396

Homicide 173

being shown, defendant must justify 174

burden of proof 190

by accelerating or hastening death 173

circumstantial evidence of 197

death must result within a year and a day 173

evidence 208

evidence, character of deceased 197

evidence, dying declarations 200

evidence of corpus delicti 205

evidence of motive 192

evidence of threats by defendant 199



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INDEX. 799

Page. Sec.

Homicide evidence res gestae 196

evidence, statements and declarations of de-
ceased 198

evidence, threats by deceased 198

evidence, when declarations part of res ges-
tae 196

evidence, when prior difficulty may be shown.. 194

excusable 182

felonious, justifiable or excusable 178

felonious is murder or manslaughter 173

in defense of habitation 184

in defense of property 184

in mutual combat 187

in resisting unlawful arrest 185

in self defense 185

justifiable 182

magistrate must appoint reporter in 283

maps and photographs as evidence 193

not justified by fear 198

not justified by threats 186

provocation sought by slayer 181

provocation sufficient to reduce to man-
slaughter 18u

self defense, apparent danger 188

self defense, duty to retreat 189

self defense, founded on necessity 190

self defense, killing in duel 190

self defense, plea not available when 190

self defense, present ability of asscUlant 189

self d^ense, sufficiency of danger 188 n

supervening circumstances, how affecting 173

venue 205

when accused to be discharged 199

when act causing death is malum in se 182

when act causing death is malum prohibitum.. 182

when evidence of drunkenness admissible 204

when excusable 195

when expert opinion admissible 193

when justifiable by person other than officer. . 197

when justifiable by public officer 196

when mutual combat is manslaughter 180

when officer justified in making arrest 183

when threats necessary to be 'commimlcated.'j| 186

House of ^rfection, when commitment made 4o. .T . . 450 '

House of ill fame, see 111 Fame, see Seduction.
Housebreaking, see Burglary.

Humboldt Bay, depositing refuse in 612

Hunting in night time prohibited 626m

Husband when not competent as witness 1322

Hypothetical instructions 405

Hypothetical question must be based on evidence 390

Hypothecated property, selling without consent 581

Idom sonans, doctrine of, applies to forgery 161



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800 IMOEJC.

Page. Sec.

Idiot, cruel treatment of 361

incapable of committing crime 37

not punishable for crime 2$

Ignorance of fact excuses crime 41, 371

Ignorance of law does not excuse 41

Illegal fees, extortion 143

III fame, enticing female into house of 270

keeping or residing in house of prohibited 31S

putting wife into house of 270

impaneling Jury 332

Impeachment, articles of how 'prepared 73S

articles of to be delivered to whom 739

answer of defendant 744

disqualifies until acquittal 751

effect of Judgment of suspension 750

judgment how pronounced 747

V nature of judgment 749

no bar to indictment 753

of witness 349

of witness, instruction on 418

of lieutenant governor 752

officers liable to 737

pleadings of defendant 743

proceedings where no appearance 742

resolution of majority judgment 74%

senators to be sworn on trial 745

service of defendant 740

service on defendant, how made 741

time of hearing t . . 740

trial by senate 738

vacancy by, how filled 751

votes necessary to convict 746

Impersonation, see False Personation.

Implied bias, ground of challenge to juror 1074

see Bias.
Implied malice, see Malice Aforethought.

Importing convicts 173

Imprisonment by justice of the peace for non-payment

of fine 1446

competency of witness not affected by 675

, ^al^e \ 148

^ for life^....: .-..* 671

for non-payment of fine 449

in state prison how executed 1216

in state prison only in felony 450

judgment of by justice of the peace, how ex-
ecuted 1455

second term to commence when 669

to pay fine, duration of 1206

when fine may be added to 672

when term commences 670

Imprisonment and fine, how imposed 448



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INDEX. 801

Paee. Sec.

Incest 210

attempt to commit 210

defined s 286

evidence 210

form for indictment 211

jurisdiction for 46

I>enalt7 211

Incestuous marriage, solemnizing .^.^ 3(9-

attempt to contract 34

Indecent articles, character to be summarily determined 31f

duty of district attorney to destroy ' 314

seizure of authorized 811^

Indecent exposures prohibited 311

Indians, federal jurisdiction over 45

selling' firearms to ^ 89S

selling liquor to 231 397

Indictment 295

against superior judge ; . . . . 1029*

allegation of asportation in larceny 224

allegation of intent in larceny 224

allegation of larceny as bailee 225

allegation of ownership in arson 81

allegation of ownership in larceny 225

defined 917

disclosing fact of finding 168

description of property in larceny 223

effect of order resubmitting 998

evidence necessary to find 921

first pleading by people 300

for abduction 73

for abortion^ 75

for adultery 76

for assault to murder 92

for assault with deadly weapon 87

for arson 80

for arson, allegation of intent 81

for bigamy 95'

for bribery 98

for burglary 103

for embezzlement 135

for extortion 144

for forgery 1^6-

for forgery may be for one or all acts

enumerated ; 160^

for fraudulently taking water 167

for gaming 169

for kidnapping and child stealing 213

for libel 230

for murder 206

for perjury 243

for rape 256

for receiving stolen goods 259

for resistance of public officers 261

for robbery 266

for selling liquor to Indians 231

form for 961



eillMCS»61



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802 INDBX.

Paire. Sec

Indictmecit. form for In assault 89

form for in arson 82

form for in bisamy 96

form for in bribery 99

form for in burglary 106

form for in compounding crimes 108

form for in conspiracy 110

form for crime against natnre 118

form for defrauding innkeepers 119

form for disturbance of the peace 12i

form for in embesslement 136

forms for in escapes 140

forms for in extortion 144

form for false entries in books of corporations 146

form for in false Imprisonment 148

form for in false personation '. . 149

form for in false pretenses 157

form for in forgery 164

forms for In game laws 171

form for in gaming 170

form for in incest 211

form for in kidnapping and child stealing 213

form for in larceny 226

form for in libel 230

form for in mayhem 234

form for in murder 20:>

form for in perjury 245

form for practicing medidne without license. . . 236

form for injury to public jails 142

form for in rape 256

form for in receiving stolen goods 260

form for in resistance to public officers *. 262

form for in robbery 266

form for in seduction 271

form for in selling land twice 272

form for in selling liquor to Indians 232

form for in throwing vitrol 275

form for in train wrecking 277



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 73 of 77)