California Charles Howard Fairall.

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

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cases does not depend on the legal obligation of the policy,
for the offense is complete if it appears that a policy was
deli\-ered, although it is invalid and no action can be main-

'- People V. Myers. 20 Cal. 76; People v. De Winton, 113

Cal. 407.
*» People V. Scott, 32 Cal. 200; People v. Wooley. 44 Cal.

494.
' People V. Fong Hong. 120 Cal. 685.
8 People V. Fisher, 51 Cal. 321.
People V. Simpson, 50 Cal. 304.

10 People V. Hlltel. 131 Cal. 577.

11 People V. Haggerty, 46 Cal. 355.

12 People V. Simpson. 50 Cal. 304.

13 People V. Hiltel, 131 Cal. 577.

I* Penal Code 548; People v. Schwartz, 32 Cal. 163; People
V. Hughes. 29 Cal. 258.



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80 CRIMINAL LAW AND PROCEDURE.

tained upon it." And the intent to defraud may be inferred
from the fact of burning and the taking out of insurance."

INTENT TO DESTROY.

intent to destroy is an essential ingredient of arson. It
must clearly appear that the defendant had this specific
intent and purpose, and that the building was burned to
carry out such intent.*^ And the fact that the circum-
stances of the case would also warrant a prosecution for
burning the building to defraud an insurer does not affect
the prosecution for arson."

DEGREES.

Arson is divided in two degrees." When the burning
of an inhabited building takes place in the night time, in
which there is at the time some human being, it is the first
degree.^® The jury must find the degree.*^ But when the
indictment charges only the lower degree, the verdict need
not specify the degree.^^

INDICTMENT.

Indictment, in the language of the statute is sufficient."
It need not set out and describe the particular kind of
building as specified in the code, nor that it was capable
of affording shelter to human beings.^* The degree need
not be alleged, as it is a question of fact for the jury to
determine from the evidence.^* Where the charge is burn-
ing with intent to defraud an insurer, it should allege the
insurance company was a corporation, if such were the

15 People V. Hughes, 29 Cal. 258.
18 People V. Vasalo, 120 Cal. 168.

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

18 People V. Fong Hong, 120 Cal. 683.

i» Penal Code 453; People v. Coch, 53 Cal. 627.

20 Penal Code 454.

21 People V. Coch. 53 Cal. 627.

22 People V. Fisher, 51 Cal. 319.

23 People V. Russell, 81 Cal. 616; People v. Giacamella, 71
Cal. 48; People v. De Winton. 113 Cal. 408.

24 People V. Russell, 81 Cal. 616; People v. Qiacamella, 71
Cal. 48.

25 People V. Russell, 81 Cal. 616.



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' ■ ' '-■ -.ARflON.' ■ - ' '■''■ ■ • 81

fact.** But a variance in the name of the company is not
fatal to a judgment of conviction."

VENUE.

It is sufficient if the defendant burned a building within
the jurisdiction of the court; and it need not be alleged
that at the time of the burning the building was in the
county where the burning took place.^®

DESCRIPTION OF BUILDING.

The object of a description is simply to identify the prop^
erty,*® and it is a sufficient identification if it be alleged
that it was the property of A and formerly occupied by B,
if the proof shows that B really occupied it but fails to
show ownership in A.^®

DESCRIPTION OF OWNERSHIP.

The indictment must show that it was the property of
another unless such circumstances be alleged as will show
it was in the possession and occupancy of another.'* In
which case it may be alleged to be in the person occupy-
ing it as a residence.^* And an allegation of partnership
ownership will be sustained by proof of ownership of the
partners as joint tenants or cotenants.^' If the indict-
ment allege the name of the occupant it is enough.'* And
when the name of the occupant is set out, it is not neces-
sary to allege the name of the owner of the title.'^'

INTENT.

The intent may be alleged by way of participles instead
of by verbs, although the indictment might be improved by

20 People V. Schwartz, 32 Cal. 161.

27 People V. Hughes, 29 Cal. 258; People v. Schwartz, 32

Oal. 165.
*8 People V. Wooley, 44 Cal. 494.

29 People V. Handley, 100 Cal. 370.

30 People V. Shainwold, 51 Cal. 468.

«i People V. De Winton, 113 Cal. 403.

»2 People V. Handley, 100 Cal. 370; People v. Wooley, 44

Cal. 495.
" People V. Greening. 102 Cal. 384.
»* People V. Scott, 32 Cal. 200.
35 People V. Handley. 100 Cal. 370.



CRlMCS - e



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82: CBIMINAL LAW AMD PROOBDURG.

nmking direct and positive averments.^* And under the
code it is not necessary to allege a setting on fire, but only a
burning.'^ Specific intent to destroy must be alleged."

EVIDENCE.

It is immaterial to prove a motive,^* yet threats against
the owner of the building are admissible for this purpose.
Also evidence tending to show that the defendant started
former fires by which another building on the same prem-
ises was burned.*^ In a charge of burning a building to
defraud an insurance company it need not be proved that
the policy of insurance was valid.** The intent to defraud
may be inferred from the fact of burning and the exist-
ence of insurance.** And it may be shown that the value
of goods exceeded the value of insurance, but that does
not amount to a defense.*' Payment of rent to the land-
lord may be shown to prove tenancy by occupant.**

PENALTY.

In the first degree imprisonment in state prison not less
than two years. In the second degree, imprisonment in
state prison from one to twenty-five years.

FORM — ^ARSON.

A certain building, to wit, a dwelling house of one C D
[or other building, describing it] there situate, did, unlaw-
fully, wilfully, maliciously and feloniously bum, with
intent to destroy the same.

FORM — BURNING INHABITED BUILDING.

In the night time of said day, unlawfully, wilfully,
maliciously and feloniously did burn a certain inhabited
Luilding, to wit, the dwelling house of C D, there situate,

8» People V. Vasalo, 120 CaL 168.

87 People V. Myers, 20 Cal. 76.

8s People V. Mooney, 127 Cal. 339; People v. hong Hong,

120 Cal. 685.
39 People V. Fong Hong, 120 Cal. 686.
*o People V. Lattimore, 86 Cal. 403; People v. Shainwold,

51 Cal. 468.

41 People V. Hughes. 29 Cal. 258.

42 People V. Vasalo, 120 Cal. 168.

43 People V. Goldsworthy, 130 Cal. 600.
^4 People V. Simpson. 60 Cal. 304.



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ARSON. Q6

in which said dwelling house there was then and there a
human being.

FORM — TO DEFRAUD INSURER.

Unlawfully, wilfully, maliciously and feloniously did
burn, injure, and destroy certain property, to wit, [describ-
ing it] there situate, of the property of , which said

property was then and there insured against loss and dam-
age by fire [or other casualty, stating it] by the

Insurance Company, a corporation, with intent then and

there and thereby to defraud and prejudice said

Insurance Company.



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CHAPTER VIII.



ASSAULT.



DEFINED.



The subject of assault is intimately connected with that
of criminal attempt. Assaults are of many degrees, vary-
ing from the simple assault to the more aggravated forms,
such as are included in forcible abduction, robbery, rape,
and murder; these will be discussed under their appro-
priate heads. Our code defines assault as an unlawful
attempt, coupled with a present ability, to commit a violent
injury on the person of another.^ It w^ill thus be seen that
three elements are necessary to constitute this offense:
(i) An intent to commit a violent injury; (2) the present
ability; and (3) the actual attempt.^

INTENT.

The intent here necessary is only the intent to do the
unlawful act, which is the ingredient of every crime. The
drawing of the weapon, accompanied by a threat to use it,
is sufficient to show intent.^ It may be shown by threats
and declarations made immediately after the attempt,* or
by the circumstances surrounding the act, as throwing a
person from the third story window,* or throwing vitriol
upon another person,^ or a forcible abduction.®*^ An assault
cannot be committed where the party acts in self-defense,

» Penal Code 240; People v. Yslas, 27 Cal. 631; People v.
Dodel, 77 Cal. 293.

2 People V. Lee Kong, 95 Cal. 666; People v. Yslas, 27
Cal. 631; People v. Dodel, 77 Cal. 293.

3 People V. McMakin, 8 Cal. 547.

4 People V. Yslas. 27 Cal. 630.

5 People V. Emmons, 61 Cal., 487.
« People V. Stanton. 106 Cal. 139.
ea People v. Ah Own, 39 Cal. 604.



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AdSAULt. 85

for any act done in self-defense is not unlawful, and can
never amount to an assault.^

PRESENT ABILITY.

The common law definition of an assault is substantially
the same as that found in the code. It is not indispensable
that the assailant should be at any time within striking dis-
tance, if he is advancing with intent to strike his adver-
sary, and come sufficiently near to induce a man of ordinary
firmness to believe, in view of all the circumstances, that
he will instantly receive a blow, unless he strike in self-
defense, or retreat.® To constitute an assault with a
weapon it is necessary that the weapon should be presented
at the party assaulted within the distance at which it may do
execution. But present ability is shown where the assail-
ant has a loaded pistol and the person intended to be fired
at is within reach of its eflPect, notwithstanding he was mis-
taken as to the exact spot where his intended victim was
located at the time of firing.® The mere drawing a knife,
without being near enough to strike the person with it,
and without advancing towards him does not show a pres-
ent ability.^®

ATTEMPT.

The subject of attempt has been quite fully treated
heretofore, and it is unnecessary to describe here what
amounts, in law, to an attempt. An attempt is one of the
essential elements of an assault.^* But there must be
something more than menaces,*^ or putting in fear, to con-
stitute it.^^ There must be a violence begun to be exe-
cuted.^* or an attempt to strike or to use the weapon."
However, the drawing of a pistol on another, accompanied
with a threat to use it, unless the other leave the spot, is

' People V. Lynch, 101 Cal. 220; People v. DoUor, 89 CaJ,

513.
8 People V. Yslas, 27 Cal. 630.
People V. Lee Kong, 95 Cal. 669.
i« People V. Dodel, 77 Cal. 293.

11 PeoDle V. Devine. 59 Cal. 630.

12 People V. Yslas, 27 Cal. 634.

18 People V. Lee Kong, 95 Cal. 669.
, 1* People V. Yslas, 27 Cal. 643.
15 People V. Dodel, 77 Cal. 293.



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86 CRIMINAL LAW AilD PROCBDURS.

an assault, although the pistol was not pointed at the per-
son threatened. Here the threat was conditioned, it is
true, but the condition was present, not future, and the
compliance demanded was immediate. Where a party puts
in a condition which must be performed at once, and which
he has no right to impose, and his intent is immediately to
enforce performance by violence, and places himself in a
position to do so, and proceeds so far as it is necesssary
for him to go in order to carry out his intention, then it
is as much an assault as if he had actually struck or shot
at the other party and missed him.^' A battery or wound-
ing is no part of the offense.^^ But the acts which accom-
pany the intent to commit the violence must be such as
would, if not interrupted or avoided, result in violence to
the person threatened.** The fact that the accused was
interrupted and his intent rendered abortive because of an
obstruction to him unknown at the time, does not render
his act any the less an attempt. Thus where the defend-
ant believing that a policeman was on the roof, fired a
pistol at the spot with intent to kill, it is an attempt,
although the officer was not at the spot when the shot was
fired.*® The assault is complete if the attempt is made,
although it is interrupted or abandoned before an injury
has actually occurred.^** An assault made without the use
of a deadly weapon with intent to do mere bodily harm is
a misdemeanor.^* But where it is made to commit a fel-
ony, it is a felony without regard to the means resorted
to in making such assault.*^

BATTERY.

The offense of battery is the wilful and unlawful use of
force or violence upon the person of another.^' It is also,

i« People V. McMakln. 8 Cal. 547.

17 People V. Keefer, 18 Cal. 637.

18 People V. Yslas, 27 Cal. 631.

i» People y. Lee Kong, 95 Cal. 666.
2^ People V. Johnson, 131 Cal. 512.

21 People v. Murat. 45 Cal. 281; People v. Helbing, 61 Cal,
620; People v. Martin, 47 Cal. 112.

22 People V. Gordon, 70 Cal. 467; People v. Murat. 45 CaL
281.

28 Penal Code 242.



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like assault, a misdemeanor, but is a greater oflEense than
assault, and being the greater it includes the less ; but the
less does not include the greater; hence battery includes
assault but assault does not include battery.^*

WITH DEADLY WEAPON.

A deadly weapon is one likely to produce death or great
bodily harm.^* It includes a loaded stocking when pre-
pared in such a manner as is likely to produce death.**
A knife may be such a weapon,^^ although sometimes
whether a weapon be deadly, or otherwise, depends upon
the manner in which it is used.^® And an explosion by
gunpowder may thus become a deadly weapon^^ The
court will not instruct the jury that the weapon used in
making an assault, as a matter of law, is a deadly weapon,
but leaves the question to the jury, after defining the
term.^" The weapon is the gist of the offense and distin-
guishes assault with a deadly weapon from a simple
assault.** The indictment must charge the facts which
show the weapon used was deadly.*^ But it is sufficiently
described if the facts are alleged from which the court may
determine the character of the weapon.^* But the intent
to do harm need not be pleaded nor found.*"* And the
charging that the defendant was armed with a deadly
weapcm and made an assault, is not an allegation that he
made it with a deadly weapon, and will not support a con-

24 People V. Helbing, 61 Cal. 620.

«» People V. Fuqua, 58 Cal. 245; People v. Franklin, 70 Cal.
643; People v. Leyba. 74 Cal. 408.

26 People V. Valliere, 123 Cal. 576.

27 People V. Franklin. 70 Cal. 641.

28 People V. Fuqua, 58 Cal. 245; People v. Rodngo. 69 Cal.
601.

2» People V. Pape, 66 Cal. 366.

80 People V. Rodrigo, 69 Cal. 601.

81 People V. Vanard. 6 Cal. 662.

32 People V. Jacobs. 29 Cal. 679; People v. Congleton. 44
Cal. 94; People v. VUlarino, 66 Cal. 229; People v. Pap#.
66 Cal. 367.

83 People V. Pape. 66 Cal. 366.

84 People V. Turner, 66 Oal. 540; People v. Mlie, 80 Cal 44;
People V. Forney, 81 Cal. 119; People v. Savercool, 81
Cal. 651.



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88 CRIMINAL LAW AND PROCEDURE.

viction of felonious assault.'* The allegation that the
defendant intended to commit an assault and had the pres-
ent ability to do so, is unnecessary.'* The assault may be
committed, although no blow is struck.*^

VERDICT.

The conviction on a charge of assault with a deadly
weapon cannot be construed as a conviction of a simple
assault."^* But a charge of assault with a deadly weapon
will support a verdict of assault with intent to do bodily
harm.'^ However, on a charge of assault with a deadly
weapon with intent to inflict great bodily injury, a verdict
of guilty of an assault with a deadly weapon, is a convic-
tion of a simple assault.*^ The defendant may be con-
victed of any oflFense the commission of which is necessarily
included in that with which he is charged.*^ ' A verdict
that an assault was made with intent "to do bodily harm
upon the person" of another is equivalent to a verdict that
the assault was made with intent "to inflict upon the per-
son of another a bodily injury."*^ And a verdict of guilty
of an assault with a deadly weapon with intent to inflict
bodily injury is a conviction of a felony, not a simple
assault.*' The offense of assault with a deadly weapon is
necessarily included in a charge of an assault to commit
murder; and under an indictment charging the greater
offense to have been committed with a deadly weapon, the
defendant can be found guilty of the lesser.** But under
an indictment for an assault to commit murder a
conviction of an assault made with a deadly weapon to do

35 People V. Vlerra. 52 Cal. 451.
30 People V. Forney, 81 Cal. 118.

37 People V. Bird. 60 Cal. 7.

38 People V. Amett, 126 Cal. 680.

39 People V. Congleton, 44 Cal. 92; People v. Murat, 45 CaL
284; People v. Villarlno, 66 Cal. 229; People v. Pape. 66
Cal. 367.

*o People V. Wilson. 9 Cal. 260.

41 People V. Holland, 59 Cal. 364; People v. Pape. 66 CaL

367; People v. Gordon. 99 Cal. 227.
*2 People V. Congleton, 44 Cal. 92.
48 People V. English, 30 Cal. 215.

** People V. English, 30 Cal. 211; Ex parte Donahue, 6S
Cal. 474; People v. Bentley. 75 Cal. 403.



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- A&SAULT. 89

bodily harm cannot be supported, unless it sufficiently
appears upon the face of the indictment that the assault
was made with a deadly weapon.**** The Superior Court
has jurisdiction of assaults with deadly weapons, and
although the defendant may have been convicted of a sim-
ple assault only, that court has jurisdiction to pronounce
judgment for the offense of which the defendant was con-
victed.**"

PENALTY.

Assault, fine not exceeding five hundred dollars, or by
imprisonment in county jail not exceeding three months.
Assault with deadly weapon, imprisonment m state prison
or county jail not exceeding two years, or fine not exceed-
ing five thousand dollars, or both. Assault with intent to
commit murder, , rape, the infamous crime against nature,
mayhem, robbery, or grand larceny, imprisonment in state
prison from one to fourteen years. Assault with intent to
commit other felonies than those named in last sentence,
imprisonment in state prison not exceeding five years, or in
county jail not exceeding one year, or fine not exceeding
five hundred dollars, or both. Punishment for an assault
with a deadly weapon where information is for an assault
with intent to commit murder may be by imprisonment in
the state prison.**^

FORM — ASSAULT WITH DEADLY WEAPON.

Wilfully, unlawfully, and feloniously did assault with
a certain deadly weapon, to wit, a pistol [or other deadly
weapon, naming it] one C D.

ANOTHER FORM — ASSAULT WITH DEADLY WEAPON.

Wilfully, unlawfully, and feloniously did assault one C
D, by means and force likely to produce- great bodily



injury."**



FORM — ASSAULT.



Wilfullv and unlawfullv did nmke an assault upon one
CD.'

*B People V. Murat, 45 Cal. 281.
4« Ex parte Donahue. 65 CaL 474.
♦7 Ex parte Mitchell, 70 Cal. 1.
*B People V. War, 20 Cal. 117.



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90 CRIMINAL LAW iMV PROCEDURE.

ANOTHER tORU — ^ASSAULT.

Wilfully, unlawfully, and maliciously did attempt to com-
mit a violent injury on and against the person of one C D,
the said A B having then and there the present ability 80
to do.

ASSAULT TO MURDER.

An assault to murder contains all the elements of a
simple assault and a specific intent to kill. While to con-
stitute murder, the guilty person need not intend to take
life; but to constitute an attempt to murder, he must so
intend. He must specifically contemplate taking life; and
though his act is such as, were it successful, would be mur-
der, if in truth he does not mean to kill, he does not become
guilty of an attempt to commit murder.* Implied malice
is not the equivalent of the actual intent to kill essential
to constitute this crime,^ but where every element is shown
except intent, the court may refuse to instruct the jury that
the defendant might be convicted of a simple assault, or a
mere attempt to commit the offense charged.* Where the
evidence discloses that the defendant was either guilty of a
more serious oflFense than simple assault, or he was not
guilty, the court is justified in failing or refusing to instruct
as to a simple assault.* It is for the jury to say whether
the weapon used would have produced death," and the
intent becomes immaterial where the defendant is convicted
of an assault with a deadly weapon.' The intent need not
be to murder a particular person, thus, where A intend-
ing to murder B, shoots C, supposing C to be B, and
wounds C, is guilty of an assault with intent to murder
C.^ The defendant cannot justify an assault upon his
wife on the ground of her lewd conduct when he was
aware of it for eighteen months and was not acting under

1 People V. Mize, 80 Cal. 41.

2 People V. Burgle, 123 Cal. 303; People v. Wallace. 101
Cal. 285.

3 People V. Stanton, 106 Cal. 139.

* People V. Scott, 98 Cal. 516; People v. McNutt, 93 CaL

658.
5 People v. McFadden, 65 Cal. 445.
« People V. Wallace, 101 Cal. 281.
7 People V. Torres, 38 Cal. 141.



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ASSAULT. ^l

the influence of passions aroused by recent information.*
Nor is a trespasser justified in shooting the servant of the
owner who attempts to put him off the premises, when he
can with safety avoid it.'^ Nor is a person resisting arrest
by an officer who has reasonable cause to believe him guilty
of a felony, justified in shooting the officer, although he
has no warrant.*®

EVIDENCE.

The intent to murder must be proved as an indispensable
fact," and no presumption of law can arise which will
decide it.** It may be inferred, however, from the shoot-
ing of an officer attempting to arrest the defendant for
another crime.** In determining this intent two elements
are to be considered; the charcter of the weapon and the
nature of the wound.** The intent is always a question of
fact,*" and may be shown by the character of the instru-
ment used, the manner of its use and the purpose to be
accomplished thereby.*® But where the assault was com-
mitted with a knife, evidence that the defendant had a
pistol is inadmissible,*^ and likewise, evidence that he had a
knife and a pistol on his person nearly a month after the
oflense,*' and evidence to prove the stabbing of another by
directions of defendant, given at the same time, is admis-
sible to show the intent with which the assault was made.**
And to establish the motive of the assault, it is admissible
to show that the defendant was escaping from jail, although
it may tend to show another offense.*® And it is proper

8 People V. Arnold, 116 Cal. 682.

9 People V. Douglass, 87 Cal. 281.
10 People V. Wilson, 117 Cal. 688.

" People V. Mlze, 80 Cal. 40; People v. Wallace, 101 Cal.
285; People v. Landman, 103 Cal. 581; People v. Wilson,
117 Cal. 688.

12 People V. Johnson, 106 Cal. 289.

13 People V. Wilson, 117 Cal. 688.

14 People V. Ye Park, 62 Cal. 204.

IB People V. Wilson. 117 Cal. 688; People v. Watson, 12S

Cal 342
le People v. Valliere, 123 Cal. 576.
IT People V. Wong Ah Leong, 99 Cal. 440.
18 Pec^le V. Yee Fook Din. 106 Cal. 163.
10 People V. Chin Bing Quong, 79 Cal. 553.
«) People V. Valliere. 123 Cal. 576.



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92 CRIMINAL LAW AND PROCEDURE.

to show circumstances of a previous crime, when the crime
of which the defendant is charged is an assault with intent
to murder an officer who is endeavoring to arrest him for
the previous crime."

IXnrCTMENT.

The indictment must allege malice aforethought." The
charge of assault with intent to commit murder will sus-
tain a conviction of an assault with a deadly weapon with
intent to do great bodily harm.^'^ if it appear from the
indictment that the assault was made with a deadly
weapon;-* hut the consent of the defendant cannot con-
fer jurisdiction on the court to try him for any other
offense than that charged in the indictment." It will also
sustain a conviction of any other lesser offense included in
the charge. ^*^ And it does not cure the error in the indict-
ment that the defendant requested an instruction that he
might be convicted of assault with a deadly weapon, where
the indictment does not show that the assault was made
by means of a deadly weapon."

VERDICT.

A verdict finding the defendant guilty of an assault to
murder is sufficient,"* or finding the defendant guilty is
sufficient. in form to convict of the offense charged.^® But
under an indictment for assault with intent to commit mur-
der, a verdict of guilty of an assault with intent to do

21 People V. Wilson, 117 Cal. 688.

22 People V. Urias, 12 Cal. 326; People v. Schmidt, 63 Cal.
281; People v. Arnold, 116 Cal. 686.

23 People V. Davidson, 5 Cal. 134; People v. English. 80
Cal. 218; People v. Congleton, 44 Cal. 92; People v.
Lightner, 49 Cal. 226.

24 People V. Vanard, 6 Cal. 563; People v. Murat, 45 Cal.



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