California Charles Howard Fairall.

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

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283; People v. Lightner, 49 Cal. 229; People v. Amett,
126 Cal. 680.

25 People V. Granlce, 50 Cal. 448.

26 People V. Fine, 53 Cal. 263; People v. Bentley. 75 Cal.
407; People v. Gordon, 99 Cal. 229; People v. Pape, 66
Cal. 366; People v. Watson. 125 Cal. 342; People v.
Arnold, 116 Cal. 687; People v. Scott, 93 Cal. 516; People
V. Barney. 114 Cal. 558; People v. Guidice, 73 Cal. 226.

27 People V. Murat, 45 Cal. 281.

28 People V. McFadden, 65 Cal. 445.

29 People V. West, 73 Cal. 345.

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bodily injury is a conviction of a simple assault, and there-
fore only of a misdemeanor.'*^ But under such an indict-
ment a verdict of guilty as charged is a felony.^^ A ver-
dict of assault with a deadly weapon will support a judg-
ment of imprisonment in the state prison, for upon impos-
ing such a judgment the crime thereby becomes a felony."*


Did, wilfully, unlawfully, feloniously, and with malice
aforethought, with a deadly weapon, to wit, a pistol [or
other deadly weapon, naming it] then and there assault
one C D with intent then and there to kill and murder said
C D.^^

30 People V. Aubrey, 53 Cal. 427; Ex parte Ah. Cha, 40 Cal.
426; People v. Congleton, 44 Cal. 94; People v. Vanard,
6 Cal. 562; People v. English, 30 Cal. 218; People v.
Wilson. 9 Cal. 260; People v. Martin, 47 Cal. 112; People
V. Holland, 59 Cal. 364; People v. Turner, 65 Cal. 541;
People V. Murat, 45 Cal. 283; Ex parte Max, 44 Cal. 581.

»i People V. Swenson, 49 Cal. 388; People v. Mesa, 93 Cal.
584; People v. Chuey Ying Git. 100 Cal. 439.

3.i Ex parte Mitchell, 70 Cal. 1; People v. Turner, 65
Cal. 541.

83 People V. Ah Toon, 68 Cal. 362; People v. McPadden, 66
Cal. 445; People v. Swenson. 49 CaL 388; People v. Eng-
lish. 30 Cal. 215.

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[Penal Code, sees. 281-284.}


Bigamy is the offense of marrying another person while
having a husband or wife living.^ The essence of the
offense is marrying while married to another, and not the
intent with which it is done. An honest belief on the part
of the accused that he was unmarried at the time is no
defense.^ It is a familiar rule that to constitute a crime
there must be a union of act and intent, but where a spe-
cific intent is not an element of the crime the only intent
necessary is a purpose or willingness to commit the act.*
It is not bigamy, however, where the former husband or
wife has been absent for five successive years, without being
known to such person within that time to be living; nor
where the former marriage has been pronounced void,
annulled, or dissolved by judgment of a competent court.*


In a prosecution for bigamy the law presumes the inno-
cence of the defendant until the contrary is shown. And
while it also presumes the existence of a person once estab-
lished by proof to continue until the contrary is shown, it
is incumbent on the prosecution to prove that the husband
or wife of the former marriage was alive at the date of the
second marrriage; and where, in case of two presumptions,
one of innocence and the other of continuance of life, the

1 Penal Code 281.

2 People V. Hartman, 130 Cal. 487.
^ People V. O'Brien, 96 Cal. 176.

* Penal Code 282.

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presumption of innocence prevails." The mere fact that
the former spouse was alive three years before the second
marriage is not sufficient to support a conviction.**


On a prosecution for bigamy general repute of marriage
is admissible in evidence as a circumstance, tending to
show the fact of marriage.^ And the fact that the rec-
ord of the marriage certificate, is also evidence of the
marriage does not exclude evidence that the parties lived
together avowedly as man and wife.® And the marriage
to support the charge need not be a regular solemnized and
authenticated marriage, but it is sufficient if there is a con-
sent to the marriage, followed by a mutual assumption of
marital rights, duties, and obligations.* But the mere intro-
duction of another by the defendant as his wife or occupy-
ing the same room at the hotel is not evidence tending to
show that such a relation existed. ^^ So consent alone will
not constitute marrriage ; it must be followed by a solemn-
ization or by a mutual assumption of marital riglns, duties,
or obligations." But a& the law exists now, consent and a
mutual assumption of marital rights, duties, and obliga-
tions is not sufficient to constitute a marriage. There must
be a solemnization.'^


It is not necessary that the information f©r bigamy
should state at what place the defendant was first mar-
ried. ■•^•

' People V. Feilen. 58 Cal. 223; Hunter v. Hunter. Ill Cal.

261; White v. White. 82 Cal. 448.
People V. Pellen. 58 Cal. 218.
• People V. Hartman, 130 Cal. 487; People v. Beevers, 99

Cal. 289; White v. White, 82 Cal. 427.
« People V. Stokes. 71 Cal. 265.
» People V. Beevers, 99 Cal. 286.
i« People V. Lehmann, 104 Cal. 634.

11 People V. Beevers, 99 Cal. 286; People v. Lehmann. 104
Cal. 634; Sharon v. Sharon, 79 Cal. 673; Hlnkley ▼.
Ayres, 105 Cal. 360.

12 Penal Code 68.

18 People v. Giesea, 61 Cal. 53.

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The crime may be prosecuted in the county where the
offense is committed or in any county in which the defend-
ant may be apprehended.^^


Fine not exceeding two thousand dollars and imprison-
ment in state prison not exceeding three years. Person
knowingly and wilfully marrying the husband or wife of
another, fine not less than two thousand dollars, or impris-
onment in state prison not exceeding three years.


While having a husband [or wife] then living unlaw-
fully, wilfully, and feloniously did marry and take to wife
one C D.

H Penal Code 785.





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Bribery is the asking, giving, accepting, or promising or
undertaking to give anything of value or advantage, pres-
ent or prospective, with the corrupt intent to influence
unlawfully the person to whom it is given in his action,
rote, or opinion in any public or official capacity.^ The
oflFense of offering a bribe is complete by the offer without
any tender or production of the money ,^ and the offense
of offering to receive a bribe is complete without an offer
to give.' An offer to give a bribe on behalf of another is
as much a bribe as though made in his own behalf,* and
a police officer who accepts money under a promise not to
arrest or prosecute offenders against certain laws is guilty,
even though there be no violation of such laws shown, or
a failure of the officer to make arrests.' To constitute the
offense of asking for and agreeing to receive a bribe, it
need not be met with a consent to give. And the offense
of asking for a bribe is committed by a juror who in a civil
case offers to procure a verdict for the defendant for a
specified sum.® But a bribe to a witness to influence his
testimony does not include the case of a person who by
aid of gifts tries to induce a witness to tell the truth, whom
he imagines is prejudiced and intends to testify falsely
against him.^ The law punishing an offer to bribe trustees

1 Penal Code, 7, sub. 6.

2 People V. Ah Fook. 62 Cal. 493.

8 People V. Hurley, 126 Cal. 351.
4 People V. Northey, 77 Cal. 619.
» People V. Markham. 64 Cal. 157.
« People V. Squires, 99 Cal. 327.
7 People V. Fong Ching, 78 Cal. 169.

cmMCS— 7

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of a corporation, includes only public or quasi pablTc cor-
porations.® Thus, primary elections for delc^tes to a
^:§hvention, being purely political parties and associations,,
ar^ not public bodies, and are not included within the stat-
ute punishing bribery.® But an offer to bribe a member
•of a convention for the nomination of public officers is
within th€ Statute. And a delegate elected to sucb con-
veiiti'on i» a member thereof from the date of the primary
\$l^tion at which he was chosen 4 and as such member may
be guilty of offering to receive a bribe from a candidate for
nomination prior to the meeting of the convention.^**


It may be generally stated that an information in the
language of the statute is sufficient.^* But it is not suffi-
cient to allege generally in the indictment that the defend-
ant bribed a certain person to do a certain thing; this is
only a legal conclusion, the specific facts constituting the
offense must be alleged ;** and it will be fatally defective if
it fails to allege that the bribe was promised or received
as an inducement to official action.*" Thus, a charge against
a judge of taking a bribe not to forfeit a recognizance
under a statute defining bribery to be to act "more favor-
ably to one siae than the other in a suit, matter or cause
pending or brought before him," must allege that there was
a proceeding commenced, or to be commenced upon the


To show the materiality of the proposed false testimony
sought to be had from the witness, it is competent to show
the general nature of the crime in respect to such testi-
mony, but it is error to allow evidence of its full details.**

8 People V. Tumbull, 93 Cal. 630.
People V. Cavanaugh, 112 Cal. 674.

10 People V. Hurley, 126 Cal. 351.

11 People V. Edson, 68 Cal. 549.

12 People V. Ward, 110 Cal. 373.

13 People V. Kalloch, 60 Cal. 116.

14 People ex rel Perley. 2 Cal. 564.

15 People V. Fong Ching. 78 Cal. 169.

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And at a trial for offering a bribe to a juror, who served in
a civil action, the complaint, answer, and minutes of the
court in such action are admisssible in evidence to prove
the allegations of the indictment and to show that the
juror to whom the bribe vv2(s offered served as a juror in
the trial of such action."


Briber}' of executive officer,^^ member of legislative cau-
cus, political convention,"* etc.; member of common coun-
cil, board of supervisors, or governing bod^ of any public
or quasi-public corporation," imprisonment in state prison
from one to fourteen years. Judicial officer, juror, referee,
arbitrator," member' of legislature,^*^ one to ten years.
Witness,^* elector,^- not exceeding five years. Telegraph
operator, see section 641 Penal Code. A corrupt attempt
to influence a juror, etc., fine not exceeding five thousand
thousand dollars, or imprisonment in state prison not
•exceeding five years. Penalty is the same for the one
accepting as for the one offering a bribe.


That on the — clay of , 190 — , a certain action was

pending, undetermined and on trial in the Superior Court
of the state and county aforesaid, in which said action
E F was plaintiff and G H was defendant; that said A B
was one of the jurors regularly impaneled and sworn to
try said cause, and while acting as such juror in said cause,
wilfully, unlawfullv corruptly, and feloniously did ask
and agree to receive of and from one C D, one of the
attorneys for the defendant in said civil action, the sum

of $ lawful money of the United States, upon an

agreement which he, the said A B, then and there offered
to make and enter into with the said C D, that in consid-

i« People V. Northey, 77 Cal. 618.

17 Penal Code 67.
17a Penal Code 57.

18 Penal Code 165.

19 Penal Code 92, 93.

20 Penal Code 85.

21 Penal Code 137, 138.

22 Penal Code 53.

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eration of the pa3mient to said A B of the said sum of
money, the said A B would cast his vote and render his
decision as a juror in said civil action in favor of the
defendant in said civil action."


Then and there being an executive officer, to wit, a

police officer of the city of , county of ,

aforesaid [or other officer, describing him] wilfully, unlaw-
fully, corruptly, and feloniously did ask, receive and agree

to receive a bribe to wit, dollars, lawful money of

the United States upon an understanding and agreement
that he would not arrest persons engaged in violating
section 330 of the Penal Code of the state of California;
nor would he arrest persons engaged in violating the gam-
ing ordinance of said city of [or other understand-
ing, naming it]."


A certain cause in which was plaintiff and

was defendant was pending and undetermined before C D
then and there being a duly elected, qualified, and acting

justice of the peace of township, county and state

aforesaid, and that the said A B [or other person, naming
him] then and there unlawfully, wilfully, corruptly, and
feloniously did give to the said C D a justice of the peace
as aforesaid [or other officer, describing him] a sum of

money, to wit, dollars lawful money of the United

States, as a bribe, with intent then and there and thereby
corruptly and unlawfully to influence the decision of the
said C D as justice of the peace as aforesaid, in said
cause then and there pending as aforesaid in his official
capacity as such justice, in favor of the defendant [or
plaintiff] [action, vote, or opinion of other officer].

23 People V. Squires, 99 Cal. 327.

24 People V. Markham, 64 Cal. 157.

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[Penal Code, sees. 459-483.]


Is the entering of a house, room, apartment, tenement,
shop, warehouse, store, mill, bam, stable, outhouse, or other
building, tent, vessel, or railroad car, with intent to com-
mit grand or petit larceny or any felony.^ Burglary com-
mitted in the night time is burglary in the first degree, and
burglary committed in the day time is burglary of the sec-
ond degree.^ The common law burglary and statutory
burglary have few elements in common, and the plain lan-
guage of the statute must control.^


The entry is burglarious even if by public entrance dur-
ing business hours, if it is made with the intent embraced
within the definition.* To constitute a room the partition
need not reach to the ceiling or roof,*^ and the crime may
be committed although there are no goods in the house to
steal,^ and although the house was not and never had been
inhabited." A building includes a ticket office.®


The entry must be. made with the intent to commit one
of the acts named in the definition, that is, either grand

1 Penal Code, 459; People v. Young, 65 Cal. 225.

2 Penal Code 460.

3 People V. Barry, 94 Cal. 481.
* People V. Barry, 94 Cal. 481.

6 People V. Young, 65 Cal. 225.
« People V. Shaber, 32 Cal. 36.

7 People V. Stickman, 34 Cal. 242.

8 People V. Young, 65 Cal. 225.

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or petit larceny or a felony,® but the intent need not be
consummated.*® The intent is a simple mental operation
to be determined from the facts in the case." It is a
question of fact to be inferred from the circumstances,^*
and the intent may exist although there were no goods^'in
the house to steal.*^ And where the intent on entering the
particular room in the house is burglarious, the entry of
the house was also made with such intent." But burglary
of a particular room cannot be proved by an entry of
another room." The intent must be to deprive the owner
of property permanently, and where the purpose was only
to deprive of it temporarily it is not burglary.** The intent
to commit a felony must be the felony charged in the
indictment." But it is immaterial whether the intent was
to commit grand or petit larceny.*® The felonious intent
is not shown where the defendant merely acted with another
under directions of an officer.*® And the mere stealing
from a building without other circumstances does not of
itself establish a prima facie case of burglary.*^


In a prosecution for burglary where the goods are stolen
in one county and carried into another the venue may be
laid in either county,^^ but when laid in the county into
which they are afterwards taken, the indictment or informa-
tion should state all of the jurisdictional facts, that is, it
must allege the fact of the burglary in one county and that

» People V. Barry, 94 Cal. 481.

10 People V. Hall. 94 Cal. 595.

11 People V. Morton, 72 Cal. 62.

12 People V. Soto, 53 Cal. 415; People v. Kennedy. 55 CaL

13 People V. Shaber, 32 Cal. 36.
1* People V. Young, 65 Cal. 225.
IB People'v. Barnes, 48 Cal. 551.
i« People V. Brown, 105 Cal. 66.

17 People vs. Mulkey, 65 Cal. 501.

18 People V. Smith, 86 Cal. 238.

19 People V. Collins, 53 Cal. 185.
& People V. Barry, 94 Cal. 481.

21 People V. Jochlnsky. 106 Cal. 638.

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BUfiGLABY. 103

the goods had been brought into the county into which the
prosecution is had.^*


The possession of stolen goods is not conclusive evidence
of guilt,*" but such possession may be shown although it
was the next day and several miles away from the scene
of the crime.** And it is admissible in evidence, even
though it appear that some of the property was the result
of another crime, and thus tends to prove another distinct
oflFense.** Circumstantial evidence alone is sufficient to sup-
port a conviction.*' The possession of burglar's tools is
admisssible after the corpus delicti is established and it is
shown that the defendant was near the scene of the crime
at the time of its commission,*^ but they are not admissible
to prove stage robbery merely because a prior conviction
of burglary is included in the indictment.** The evidence
of intoxication is admisssible to determine the intent on
entering,*' and it cannot be restricted to a determination of
the degree of crime, even when committed in the night


At common law it was not considered night time if
there was sufficient daylight to disclose a man's features,**
but under the code, the meaning of night time is that period
between sunset and sunrise.**


It is sufficient to describe the offense in the language of
the statute.** And the indictment may allege intent to

22 People V. Scott, 74 CaU 94; People v. Jochlnsky, 106 Cal.

25 People V. Hannon, 85 Cal. 374.
«< People V. Lowery» 70 Cal. 193.
28 People V. Sears, 119 Cal. 267.
2« People V. Flynn, 73 Cal. 511; People v. Smith, 86 Cal.


27 People V. Winters, 29 Cal. 658; People v. Hope, 62 Cal.

28 People V. Sansome, 84 Cal. 449.

29 People V. Vincent, 95 Cal. 428.
80 People V. Phelan, 93 Cal. 111.
«' People V. Griffin, 19 Cal. 578.

32 Penal Code 450 and 463; People v. Getty, 49 Cal. 581.
»3 People V. Shaber, 32 Cal. 36; People v. Lewis, 61 Cal.

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commit grand and petit larceny and the proof may be
made of either.** But when it charges an intent to com-
mit any other felony it must state the particular felony
intended to be committed ; it is not sufficient to allege that he
entered with the intent to commit a felony ;"• but it need not
allege the facts constituting the paricular felony intended to
be committed.*' But where the indictment charged an
intent to commit larceny, the proof of an intent to commit
robbery is sufficient, for robbery includes all the elements
of larceny.'^ The omission of the word "feloniously"
from the indictment is not ground for demurrrer.** It need
not specify the value of the goods intended to be stolen.**
Degree need not be specified in the indictment.*® Nor
need the particular time of the night be alleged, nor if it be
alleged, need it be proved, as it is not of the essence of the
crime.*^ And where the indictment charges the crime with-
out stating any time, it charges both degrees.** The own-
ership of the building may be alleged to be in a lodger
who is occupying the room entered.** Ownership is neces-
sary to be alleged only when it constitutes the entire
description of the property. It is only for the purposes of
identification and description that it need be alleged at all.**
And where it is owned in partnership it is not necessary
to allege a copartnership nor that the copartners were
the owners of the building or its contents.*' The jury may
presume the name of the father was the same as the son to
show ownership of a house,*** and it need not be soecified
or described as in any particular town, but may be alleged

31 People V. Hill, 94 Cal. 595; People v. Smith, 86 Cal. 2S8.

©People V. Nelson, 58 Cal. 104.

36 People V. Goldsworthy. 130 Cal. 600; People v. Nelson.

58 Cal. 107; People v. Bums, 63 CaL 614; People v.

Smith, 86 Cal. 238.
«7 People V. Crowley, 100 Cal. 478.

38 People V. Rogers, 81 Cal. 209.

39 People V. Ah Ye. 31 CaL 452.

40 People V. Jefferson, 52 Cal. 452; People v. Bamhart, 59
Cal. 381.

*i People V. Burgess. 35 Cal. 115.
-•2 People V. Bamhart, 59 Cal. 381.
« People V. St. Clair, 38 Cal. 137.
*i People V. Parker, 91 Cal. 91.
4 5 People V. Rogers, 81 Cal. 209.
-»« People V. McGilver, 67 Cal. 55.

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• iBtTltGLARt. 106

generally to be located in the coutity in which the cause
is tried.*^ It need be only alleged with sufficient precision
to enable the defendant to understand the accusation and
the nature of the charge he is intended to meet.** So the
variance is not material where the information charged
ownership in one person and the evidence proved another
person a^ having an interest in it also/' or where the inter-
est of one owner is set oift incorrectly.*® And under an
allegation of the ownership in John Doe, proof of the own-
ership in a woman is no variance,*^ nor in a description
where it is alleged the entrance was made in a basement
and the proof show an entrance in a cellar.**


A verdict of conviction of the first degree will not be
disturbed on evidence which shows the commission of
the crime was between the afternoon and midnight,** and
a general verdict is sufficient for a conviction although con-
taining matters that are surplusage.** But a verdict of
guilt generally, without stating the degree is erroneous.**
Under a conviction of the second degree the defend-
ant is not prejudiced by the court failing to point out the
distinction between the two degrees.*® The verdict will
not be reversed when the burglary is proven and the prop-
erty that was stolen is shown to have been found in the
possession of the defendant.*^


First degree, imprisonment in state prison from one to

*^ People v. Geiger, 116 Cal. 440.

*8 People V. Edwards, 59 Cal. 359; People v. Bltancourt,

74 Cal. 188; People v. Main, 114 Cal. 634.
*o People V. Bitancourt, 74 Cal. 188.

50 People V. Main, 114 Cal. 632.

51 People V. White, 116 Cal. 17.

52 People V. Goldsworthy, 130 Cal. 600.
58 People V. McCarty, 117 Cal. 65.

54 People V. Jochinsky, 106 Cal. 638; People v. Cummings,
117 Cal. 500.

55 People V. Travers, 73 Cal. 580; People v. Lee Yune
Chong, 94 Cal. 386..

5« People V. Urquidas, 96 Cal. 239.
57 People V. Sansome, 98 Cal. 235.

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fifteen years; second degree, imprisonment in state prison
not less than five years. Where the defendant has suffered
a former conviction a sentence of ten years imprisonment
for an attempt to commit burglary does not exceed the
maximtmi term allowed,** and upon a conviction of an
attempt he may be sentenced to one-half of the longest
term of imprisonment prescribed for the offense."


Wilfully, unlawfully, feloniously, and burglariously did
enter the house, room, dwelling, and apartment of one C D
[or other building, tent, vessel, or car, naming it] with the
intent then and there and therein wilfully, unlawfully, and
feloniously to commit the crime of larceny [or any felony,
naming it].*®




M People V. McGregor, 88 Cal. 140.

so Ex parte Hope, 59 Cal. 423.

•0 People V. Hall, 94 Cal. 595; People v. Henry, 77 Cal. 446.

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[Penal Code. sec. 153.]


Compounding a crime is done by a person who, having
knowledge of the actual commission of a crime, takes
money or property of another, or any gratuity or reward

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 9 of 77)