California Charles Howard Fairall.

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

. (page 75 of 77)
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Limitation, indictment when found 803

in action for murder 799

none for embezzlement of public moneys 799

none for falsification of public records 799

of felony 800

of misdemeanors 801

statute does not run when defendant out of state 802



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816 INDEX.

Page. Sec

Liquors, jurors drinking, misconduct 341

keeping within one mile of insane asylum 172

keeping within one mile of state university 171

keeping within two miles of state prison...... 172

sale at theaters, prohibited 303*

selling at camp meeting prohibited 304

" " " " SOS

Liquor, selling to Indians .* 231 397

form for indictment 232

penalty # 232

Lobbying in Legislature 89

Lobster, closed season for 623

Locus delicti, must be proved as charged 51

Locus quo, jury may view 1119

Logs, defacing marks on 356

Lottery, aiding in carrying on 322

punishment for 323

defined 319

insuring tickets of prohibited 324

letting building for purposes of 326

property offered for distribution in forfeited.. 325

punishment for drawing 320

punishment for selling tickets in 321

tickets sale of 1109

Lumber, defacing marks on 356

Lunatics, cruel treatment of 361

Incapable of committing crime 37

not punishable for crime 26

Maiming of anfmals 597

Magistrate, action of in proceedings against corpora-
tion 1394

arrested persons to be taken before 847

defendant to be taken before without delay 825

defined 307

deposition before to contain what 812

' duty of at close of preliminary examination. 293, 295

duty of at riot 726

duty of on taking ball 823

duty on failure of defendant to give bail 824

duty on proceedings under search warrant 1541

duty to inform defendant of right 858

duty toward defendant 291

duty when defendant brought before 858

duty when information laid before 811

exclusion of spectators by 868

exclusion of witnesses by 867

jurisdiction in preliminary examination 286

may orally order arrest 838

may order defendant searched when 1542

may order stolen property returned 1408

may recommit defendant released on ball when 1810

meaning of 7

must deliver stolen property to owner 1409



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INDBX. BIT

Page. Sec.

Magistrate must examine witness before issuing

search warrant ;... 1526

must keep depo^tion 870

must notify district attorney of arrest of fugi-

Uve 1553

must return proceedings on arrest of fugitive to

the Superior Court 1656-

must supoena witnesses 864

neglecting to disperse rioters 410-

officer delaying talhng prisoner before 145

proceedings before 291

proceedings on presentment 937

proceedings where defendant taken before an-
other 826

proceedings where offense triable in another

county 827

to issue warrant for apprehension of fugitives 1549

to return papers to clerk 883

to send for counsel for defendant 859

suggestions to 288

what may admit to ball 127T

when and how defendant discharged by 871

when defendant to be committed by 872

when duty to hold defendant 283

when must appoint shorthand reporter 282

when to issue warrant 813

when to require undertaking from witnesses . . 878

who are 808

Malice, defined 35, 175

element of murder 33, 34

express, in murder, must be Intent to kill 175

implied when ' 175

instructions on 434

intent to kill may exist without 175

meaning of 7

not ingredient of manslaughter 180

presumed from killing 176

presumed from wilful act 37

presumed in libel 250

Malice aforethought, defined 188

essential to murder 174

Malicious mischief, defined 594

effect of enumeration of acts constituting 595

Mandamus to compel preliminary exammation 282

Manifest, making false 541

Manslaughter 180

by carelessness 182

death in other county, jurisdiction for 46

death must be within a year and a day 194

defined 192

homicide In mutual combat when 180

instructions on 425

involuntary 181

jurisdiction for county where Injury inflicted . . 47
malice not ingredient of 180



CRIMES— 62



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818 INDEX.

Page. Sec.

Manslaughter, penalty for 205

provocation sufficient to reduce wllHtl killing to 180

punishment of 193

Toluntary ISO

«ee Murder, see Homicide.

'Market, fraud to affect 395

Marriage, making false return of 360

promise of in seduction 268

proof of in bigamy 95

seduction under promise of 268

solemnizing incestuous 359

when a defense to seduction 269

Married person selling land by false representation.. 534

Married women to give security as witnesses » 880

when punishable for crime 26

Marrying husband or wife of another 284

under assumed name 149

under assumed character 528

Marshal is peace officer 817

Mask, wearing of 185

Mayhem 233

assault to commit 220

defined 203

form of indictment for 234

penalty for 234 204

Meadow larks, destruction of 637a

Medicine, mingling poison with, how punished 347

Medicine, practicing without license 235

form of indictment for 236

defendant must show license 235

emergency defined 235

penalty for 236

Mendicant, disposing of child for business of 272

Mercy, recommendation to not a part of verdict 443

Milestones, malicious injury to 590

Militia, aid of in suppressing riot 728

firing blank cartridges at mob 731

liability of officer for acts 731

must obey orders 729

when to be ordered out 725

Military, not affected by code 11

Military stores of the state, selling 443

unlawfully retained 442

Ministerial ofTIcer, see Officer.

Minors, admission to place of prostitution 309

permitting to play in saloon 336

receiving pledge from 501

requiring to labor more than eight hours 651

selling tobacco to 308

when court may suspend judgment of conviction 1388

Miscarriage, advertising to produce 317

see Abortion. ^ _ I



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INDEX. 819

Page. Sec.
Misconduct of attorneys 160

Misdemeanor, admission to ball in 829

aiding in, how punished 659

defendant may waive jury in 55

defined 33 17

dismissal a bar in 1387

high and low, not recognized 33

how punliBhed 450 19

lury may be waived In trial of ' 1042

limitation of 801

presentation by Indictment gives no Jurisdiction

to Superior Court 49

trial of may be had in absence of defendant. . 1043

statute of limitations on 47

when arrest may be made for 840

when may be compromised 1377

M Ice :meanor In office 237

penalty for 238

M isprision of treason defined 38

punishment of 38

Mob, firing blank cartridges at by militia 731

Mock auctions, obtaining property by 535

Money, circulating paper as 648

Issuing paper to circulate as 648

of county, grand jury may order suit to recover 929

taken from defendant, duty of officer 1412

see Public Money.

Monomaniac may be responsible for crime 38

Month, meaning of 7

Monuments, defacing 296

Monument defacing^ see Sepulcher.

Moral insamity, no defense 38

Mortgage, giving second fraudulently 538

Mortgaged chattels, removal of 537

Mortgaged property, removal of 502^

Motion in arrest of Judgment 458

to set aside indictment when heard 997

to set aside information, grounds of 995

to set aside information objections waived by

failure to make 996

to strike out evidence when allowed 476

Mountain sheep, killing of female prohibited 626e

Murder 174

assault to commit 217

assault to, instructions on 433

death In other county. Jurisdiction for 46

death must be within a year and a day -i^4

defined 187

degrees of 177 189

degrees of distinguished 179

deliberation and premeditation defined 179

essentials of 174



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820 INDEX.

Page. S«c

Murder, felonious intent judged by result 176

form for indictment 209

imprisonment pending execution part of pun-
ishment 451

in commission of anoiher felony 176

in resisting arrest 177

indictment for 206

intent to kill essential to first degree 179

intent to kill may exist without malice 175

intent to kill need not be a particular person.. 176

intent to kill not necessary to constitute 175

• intent to kill shows express malice 175

instructions on 425

insruction on, degrees of 425

jurisdiction for, county where injury inflicted . . 47

jurisdiction in certain cases of 790

killing must be with malice aforethought 174

law presumes killing malicious 174

malice an element 33

no limitation for action for 4i 799

penalty for 205 190

premeditation and deliberation in 179

presumption of malice 176

provocation not sufficient after cooling time . . 181

wanton recklessness 177

when burden of proof shifts on defendant 1105

when circumstances determine degree 178

when law supplies intent to kill 177

when means used show premeditation 178

when occasion of killing shows premeditation.. 178
see Homicide, see Manslaughter.

Museums, injury to things deposited in 623

Mute, effect of defendant standing 65 1024

Mutilation of books in public libraries 623

Mutiny, see Disturbance of the Peace.

Mutual combat, declining further struggle 187

right of self defense in 187

when is manslaughter 180

National guard, conduct of troops 731

member refusing to obey orders 653

must obey orders 729

officer failing to perform duty 652

Navigable stream, obstruction of 611

Neglect, meaning of 7

Neglecting children 270

Negligence, criminal or criminal intent necessary to

constitute crime 33

death by 368

369

wanton, killing by when murder 177

Net, catching flsh with 634

certain declared nuisances 636a

length of 636

Netting of game prohibited 631



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UIDEX. 821

Page. Sec.

Newspaper, misrepresentation of circulation 538^

opinion founded on, no disqualification of Juror 337

publications when contempt 112

publications of truth ^hen not contempt 113

publishing cartoons 258

publishing portraits without authority 258

reading by Jurors misconduct 342

signature to articles of personal character H9

when opinion founded on statement of, not dis-
qualification to Juror % 1076

New trial 454

application for, must show what 455

application for, when made 454 1182

before Justice of the peace - 1451

defined . . . . ; 1179

effect of granting 458 1180

errors reviewable on 457

exception to granting or refusing 1172

grounds of motion for 454

granting within discretion of trial court 466

heard without bill of exceptions 458

in what cases granted 1181

notice of motion for no part of Judgment roll 454
motion for cannot be amended after Judgment.. 457
motion may be heard by successor of Judge .... 458

on appeal to Superior Court 1469

ordered for defective verdict 1156

plea of once in Jeopardy cannot be made be-
cause of granting of 62

when granted 457

where to be had 1261

Night jTie defined 103 450

463

disturbance of peace in 416

hunting in prohibited 626m

when search warrant may be served in 1638

tioHe prosequi abolished 1386

Non residence prevents running of statute of limita-
tions 47

tlon-suit, defendant not entitled to 300

Not guilty, effect of plea of ai7

evidence admissible under plea of 1020

plea of, puts in issue what 1019

Note, forgery of 470

Notice of settling bill of exceptions 467

two appeals cannot be taken on one 462

Notice of appeal may be served by publication 1241

Notice of application for pardon, publication of 1422

when not required 1428

Nuisances, certain fish nets declared to be 636a

extent of damage by 371

Jurisdiction of Superior Court 49

maintaining of 372

Oath, authority to administer essential in perjury 242

defined 119



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822 INDEX.

Page. Sec.

Oath, false is perjury 240

foreman of grand jury to administer 918

Irregularity in administering not material in

perjury 121

of grand jurors 904

of office, not basis of perjury 120

Objections to jurisdiction, how taken 49

Obscene books, etc., information for 96S

Offense, but one can be charged In information 307

conviction of higher, effect of 1028

defined 33

grand jury to Inquire; into 915

how prosecuted 888

punishment where no penalty prescribed 177

information to charge but one 954

when evidence of other admissible 378

Office, buying appointments to 73

exercising functions of wrongfully 75

legal, de facto officer must have 48

misdemeanor in 237

refusal to surrender books to successor. 7S

removal from for neglect of duty 651

Officer, accusation against, failure to appear 761

accusation against, pleadings by 762

accusation against presented to grand jury 758

accusation against to be delivered to district

attorney 760

action without qualifying 65

" " " 66

allowing convicts to escape 108

appeal from judgment of conviction for mis-
conduct 770

arrest by 836

arrest without warrant, duty of 849

asking or receiving bribe 68

assault by 149

authority to overcome resistance 723

certify resisters to court 724

code applies to administrative and ministerial. 77

confining prisoners discharged on habeas corpus 36S

delaying taking prisoner before magistrate 145

demanding illegal fees extortion 143

disclosing fact of finding indictment 168

disposition of stolen property! by 1407

disqualification of by conviction of crime 98

duty of militia to obey civil when 730

duty of on executing warrant 828

duty to execute warrant • : 816

duty to inform governor of riot 72S

duty to prevent duels 230

duty to prosecute for gambling 335

effect of judgment of conviction for misconduct 770

embezzlement by 133 504

embezzlement and falsification of accounts by. . 424

extortion by 521

failure to pay over fine 427



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INDEX. 82S

Page. Sec.

Officer, false certiflcate by 167

form of accusation against 759

form of denial of accusation against 764

giving or offering bribe to 67

inhumanity to prisoners 147

interested in contracts 71

making arrest without authority 146

may break, doors to liberate person acting in

aid of 1532

may break doors to serve search warrant 1531

may prevent crime, how 697

misconduct of 75*

must be allowed to inspect pawnbroker's regis-
ter 343

must be sworn to keep jury together 1128^

must certify to telegrraphic copies of warrant. . . 851

need not disclose official character in arrest 291

neglecting to pay over public money 425>

objection to accusation against 763

obstructing in collecting revenue 428^

omission of duty by 176

pawnbroker refusing! to disclose sale to 342:

person acting as without appointment • 4(^

persons justified In aiding 698

pretending to give authority to conduct

gambling 337

proceedings after conviction for misconduct 769^

proceedings on accusation 766

process for witnesses on trial of accusation

against 768

refusing to aid^ in arrest 150

refusing to issue or obey habeas corpus 362

refusing to make arrest 142

railroad, making overcharges 525

removal by summary proceedings 772

resistance of public 261

resistance of 69

" 148

retaking goods and custody of 102:

right of in making arrest ' 291

right to go armed 291

stealing or destroying records 113-

taklngi fee for arresting fugitives 144

tax, refusing to permit Inspection of books 440'

to give receipt for property taken on search

warrant 1535^

to keep record of stolen property 1413

trial by jury of accusation against 767

what constitutes resisting arrest by 183

when doors and windows may be broken 844

845

when justified in homicide 19^

when justified in killing in making arrest 183

when must answer accusation 765

who liable to Impeachment 737

see Sheriff, Coroner and Constable.



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S24 INDSX.

Page. Sec.

Officer, de facto, must have legal office 48

•Officer of corporation fraudulently keeping books 563

making false reports 564

Officer of insolvent bank receiving deposits 562

Officer of railroad company contracting unauthorized

debts 566

Officer of savings bank overdrawing account 561

Officers of state prison^ duty of 1 578

report of 1579

Official duty, omission to perform, when punishable.. 662

violation of, penalty 661

Official proceedings, true report privileged 254

Operator, bribery of 641

postponement of telegraphic message by 638

use of information in telegraphic message 639

Opium, keeping resort for smoking i . . 307

resorting to place where used 307

Order after Judgment, exception to 1172

Overcliarges, railroad officers making 525

Overt act, necessary to attempt.- 35

when essential to conspiracy 184

Ownership, allegation of in indictment for arson 81

how alleged 306

in arson, defined^ 452

in embezzlement 135

must be by another in robbery 263

Oysters, trespassing on beds of 602

Panel, challenge to 331

challenge to, grounds for 1059

defined 1057

see Jury.

Parade with arms, who may 734

Pardons, application for 1420

district attorney must be notified of application

for 1421

governor may grant 1417

publication of notice of, application 1422

recommendations for 1595

when notice of application not required 1423

Parent deserting child 271

neglecting child 270

insulting teacher 654

Parties, how designated on appeal 1236

to criminal action 684

to special proceedings, how* designated 1562

Partnership, fraud in 358

Partridge, closed season for » 626

killing of prohibited 626c

possession of in closed season 626k

Pawnbroker, conducting business of without license. . 338

charging unlawful interest 340



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INDEX. 826

Page. Sec.

Pawnbroker must allow officer to Inspect register 343

must keep register 339

refusing to disclose sale to officer 342

unlawfully selllng| pledges 341

Peace, commitment to keep 708

disturbance of in night time 415

effect of security to keep 707

security to keep 697

security to keep, when required 714

undertaking to keep, when broken 711

undertaking to keep, where filed 709

when security to keep required 706

whose duty to preserve 720

see Disturbance of the Peace.

Peace officer defined 817

meaning of 7

Penalty, necessary to constitute a crime 33

void, jurisdiction not destroyed by 49

where none prescribed 177

see Various Crimes.

People, bias of, change of venue for 325

criminal action prosecuted in the name of 684

may appeal when 1238

not entitled to change of venue 327

pleadings of 300 949

when may appeal 461

Perjury 239

authority to administer oath essential 242

defined 118

deposition, when deemed complete in 124

evidence 242

form for indictment 245

form of oath not material 242

how pleaded 966

incompetency of witness no defense 122

Indictment for 243

instructions on 434

Irregularity in administering not material 121

knowledge of materiality not necessary 123

materiality of the false testimony 240

not predicated on oath of office 120

penalty for 245 126

procuring false evidence 241

punishment when procures execution of inno-
cent person 128

subornation of 243 127

testimony of witness against himself 14

unqualified statement when is 125

upon what oath may be predicated 240

Personal liberty, infringement of 181

Personal property, meaning of 7

see Property.

Personation, see False Personation.

Pesthoute, keeping within a town 378



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826 INDEX.

Pace. Sec
Petit jury, see Jury.

Petit larceny defined 488

and prior conTlction, punishment for 667

penalty for 490

see Larceny.

Petit treason abolished . ', 191

Pheasant, killins of prohibited 626c

possession of in closed season 626k

Phrases, how construed 7

Physician, acting while intoxicated 346

Pictures, indecent prohibited 311

Pilot, acting without license 379

Plea 315

before Justice of the peace must be oral 1429

essential to conviction 316

how entered 1003

kinds of 316 1016

must be oral 316 1017

no presumption of 317

of once in jeopardy, how made 65

raises issue of fact 1041

record must show 317

to jurisdiction, how taken 49

verdict must find on each 317

withdrawal of 317

Plea of guilty, court must determine degree on 1192

duty of court under 317

how entered 1018

mustj be in person 317

no trial required on 319

is conviction 60

waives Jury 55

withdrawal of 1018

Plea of not guilty, effect of 317. 318

puts in issue what 1019

Pleadings 300

errors, when not material in 1404

on part of defendant 1002

on part of people 949

tested by code 948

see Information and Indictment.

Pledges, pawnbroker must keep record of 339

receiving from minor 501

selling without consent 581

unlawful sale by pawnbroker 341

Plover, closed season for 626

possession of in closed season 626k

Poison, administering 216

mingling with food, etc., how punished 347

Poisoning cattle 596

Police, attendance in exposed places 697

regulation of in cities 719



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INDXX. 827

Page. Sec.

Police court defined 1461

proceedings before, how commenced 1426

Police magistrate in towns or cities Is magistrate. . . . 808

Policeman is peace officer 817

Poll of Jury, when made 1163

Poll taxes, see Taxes.

Pollution of water 248

Portrait publishhig without authority 258

Posse comitatus, refusing to join 150

Possession of burglarious instruments 466

of deadly weapon with intent to assault 467

Postponement, disposition of defendant) on 862

duty of magistrate on 292

of preliminary examination 292

of trial beyond sixty days, good cause for 53

of trial, when! made 1052

of trial beyond sixty days, when authorized 63

Pound defined 556

Pregnant woman, proceedings where sentenced to

death 1225

warden must suspend execution of i226

Preliminary examination 282

cannot be waived in felony 283

commitment for, how made 292

defendants jointly charged no right to sepa-
rate * 282

depositions, when admissible at trial 385

duty of magistrate at close of 293, 295

duty of magistrate on postponement 292

essential to information 282, 287

exclusion of spectators 293

exclusion of witnesses at 293

for information set aside 284

how testimony at authenticated 287

information need not allege 286

jurisdiction of magistrates in 286

may be compelled by mandamus 282

must be complete at one session 292

not essential to indictment 287

order admitting to bail on 293

order of discharge 293

postponement of 292

separation of witnesses 293

what defects in avoids conviction 285

when defendant to be held on 293

when to be 860

written confession sufficient 283

Premeditation defined 179

when means used in killing show 178

when occasion of killing shows 178

Preparation! to commit crime defined 84

Presentment defined 916

number of grand jurors to be made by 931



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£23 UIDBX.

Page. Sec

Presentment proceedings of magistrate on 937

to be filed In court 932

when bench' warrant issued on 933

President of senate, when to act as prison director 1574

Presumption against error on appeal 469

as to character of defendant '. 382

as to evidence contained in bill of exceptions. . . 466

favorable to grand jury 296

in favor of bill of exceptions 467

in favor of Jurisdiction of courts 48

in favor of record on appeal 462

none of plea 317

none of specific intent 36

none in favor of information 311

none that good cause existed for delaying trial 54

of continuance of life in bigamy 94

of intent from act 36

of insanity, once shown 40

of sanity 40

of responsibility for act 36

Presumption of fact for jury 406

Presumption of guilt on application for bail 66

Presumption of innocence 65

Presumption of law, need not be pleaded 961

Presumption of malice from; wilful act 37

Presumption of prejudice from error 471

Presumptive evidence 387

Previous conviction, verdict on charge of IISS

see Conviction. '

Primary election laws, offenses against ^ 64^

Principals, aiding and abetting both necessary

to make 42

by aiding in felony liable for any crime com-
mitted 42

by aiding in misdemeanor not liable for felony

not incidental 42

jurisdiction over, non-present 47

who are 31

Principal and accessory, common law distinction abro-
gated 41

defined 41, 42

distinction between abrogated 971

Printing, collusion in furnishing materials for 199

Printing superintendent of interested in contracts for 99

Prior conviction In foreign state, effect of 6<t

kind of verdict on 440

punishment for crime after 452 •JSC

when makes felony 451

see Conviction.

Prison, carrying into things to aid escape 110

grand jury entitled to access to 924

taking contraband articles into 180a

see Escapes.
Prison director, when president of senate to act as. . . U74



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 75 of 77)