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CHAPTER 40.

BURGLARIOUS TOOLS AND DEADLY WEAPONS.

4339. Having or making burglarious tools. Every person having upon him or in his possession a picklock, crow, key, bit, or other instrument or tool with intent feloniously to break into or enter any building; or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument above named so that the same will fit or open the lock of a building, without being requested so to do by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor. Any of the structures mentioned in section forty-three hundred and thirty-four shall be deemed to be a building within the meaning of this section.

Cal. Pen C. 466. Mont. Pen. C. 2 830.

4340. Having deadly weapon with intent to assault. Every person having upon him any deadly weapon, with intent to assault another, is guilty of a misdemeanor.

Cal. Pen. C. 467. Mont. Pen. C. ? 831.

Assault with deadly weapon, 4195. Exhibiting deadly weapon angrily, 4312.

CHAPTER 41.

ENTERING RAILROAD CARS.

4341. Unlawfully entering car. Every person who clandestinely enters into or upon any railroad car, for the purpose and with the intention of riding or being transported thereon, or who having entered in or upon any railroad car rides over any railroad line, or portion thereof, in this state, without the knowledge and consent of the company, or person, owning or operating such car or Failroad, and with the intention to defraud such company or person of the fare or compensation for such transportation, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in the county jail, not exceeding fifty days, or by fine in any sum less than fifty dollars, or by both. [C. L. § 2262.

4342. Id. Employees aiding in. Every person, being at the time a servant or employee of any railroad company, who aids, abets, assists, counsels, advises, or encourages another person to enter into or ride upon any railroad car for the purpose, with the intention, and in a manner specified in the preceding section, shall be guilty of a misdemeanor. [C. L. § 2263.

CHAPTER 42.

FORGING AND COUNTERFEITING.

4343. Forgery defined. Every person who, with intent to defraud another, falsely makes, alters, forges, or counterfeits any charter, letters patent, deed, lease, indenture, writing obligatory, will, testament, codicil, annuity, bond, covenant, bank bill or note, postal note, check, draft, bill of exchange, contract, promissory note, due bill for the payment of money or property, receipt for money

or property, passage ticket, power of attorney, or any certificate of any share, right, or interest in the stock of any corporation or association, or any auditor's warrant for the payment of money at the treasury, or any county, city, or town order or warrant, or request for the payment of money, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing or acquittance, release or receipt for money or goods, or any acquittance, release or discharge for any debt, account, suit, action, demand, or other thing, real or personal, or any transfer or assurance of money, certificates of shares of stock, goods, chattels, or other property whatever, or any letter of attorney or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft, order, or assignment of any bond, writing obligatory, or promissory note for money or other property; or counterfeits or forges the seal or handwriting of another, or any official certificate; or utters, publishes, passes, or attempts to pass as true or genuine, any of the above named false, altered, forged, or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person; or who, with intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court, or the return of any officer to any process of any court,-is guilty of forgery. [C. L. § 4628.

Cal. Pen. C. 470*.

Indictment or information may contain a count for uttering a forged instrument knowing it to be a forgery, 4734. Expert testimony to prove forgery, etc., 4857. Allegation when instrument

withheld or destroyed, 24747. Altering or falsifying public records, 24087, 4119, 4315. Falsifying evidence, 4131-4137. Proof of incorporation of bank or company, ¿ 4857.

4344. Altering record. Every person who, with intent to defraud another, makes, forges, or alters any entry in any book of record, or any instrument purporting to be any record or return specified in the preceding section, is guilty of forgery. [C. L. § 4629.

Cal. Pen. C. 471.

4345. Counterfeiting seal. Every person who, with intent to defraud another, forges or counterfeits the seal of this state, the seal of any public officer authorized by law, the seal of any court of record, or the seal of any corporation, or any other public seal, authorized or recognized by the laws of this state or of any state, government, or country, or who falsely makes, forges, or counterfeits any impression purporting to be an impression of any such seal, or who has in his possession any such counterfeited seal or impression thereof, knowing it to be counterfeited, and wilfully conceals the same, is guilty of forgery. [C. L. § 4630.

Cal. Pen. C. 2 472.

4346. Penalty for forgery. Forgery is punishable by imprisonment in the state prison for a term not less than one nor more than twenty years. [C. L. § 4631*; '90, p. 95.

Cal. Pen. C. 473*.

4347. Forging telegraphic message. Every person who knowingly and wilfully sends by telegraph to any person a false or forged message, purporting to be from such telegraph office, or from any other person, or who wilfully delivers, or causes to be delivered to any person any such message falsely purporting to have been received by telegraph, or who furnishes or conspires to furnish, or causes to be furnished to any agent, operator, or employee, to be sent by telegraph or to be delivered, any such message, knowing the same to be false or forged, with the intent to deceive, injure, or defraud another, is punishable by imprisonment in the state prison not exceeding five years, or in the county jail

not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment. [C. L. § 4632.

Cal. Pen. C. ? 474*.

4348. Having or using forged note or bill. Every person who has in his possession, or receives from another person, any forged promissory note or bank bill, for the payment of money or property, with the intention to pass the same, or to permit, cause, or procure the same to be uttered or passed, with the intention to defraud any person, knowing the same to be forged or counterfeited, or has or keeps in his possession any blank or unfinished note or bank bill made in the form or similitude of any promissory note or bill for payment of money or property, made to be issued by any incorporated bank or banking company, with intention to fill up or complete such blank and unfinished note or bill, or to permit, or cause, or procure the same to be filled up or completed in order to utter or pass the same, or to permit, or cause, or procure the same to be uttered or passed, or to defraud any person, is punishable by imprisonment in the state prison for not less than one nor more than ten years. [C. L. § 4633.

Cal. Pen. C. 2 475*.

4349. Making or using fictitious bill, check, etc. Every person who makes, passes, utters, or publishes, with intention to defraud any other person, or who, with the like intention, attempts to pass, utter, or publish, or who has in his possession, with like intent to utter, pass, or publish, any fictitious bill, note or check, purporting to be the bill, note, check, or other instrument in writing for the payment of money or property of some bank, corporation, copartnership, or individual, when, in fact, there is no such bank, corporation, copartnership, or individual in existence, knowing the bill, note, check, or instrument in writing to be fictitious, is punishable by imprisonment in the state prison for not less than one nor more than ten years. [C. L. § 4634.

Cal. Pen. C. 476*.

4350. Counterfeiting coin or precious metal. Every person who counterfeits any of the species of gold or silver coin current in this state, or any kind or species of gold dust, gold or silver bullion, or bars, lumps, pieces, or nuggets, or who sells, passes, or gives in payment such counterfeited coin, dust, bullion, bars, lumps, pieces, or nuggets, or permits, causes, or procures the same to be sold, uttered, or passed, with intention to defraud any person, knowing the same to be counterfeited, is guilty of counterfeiting. [C. L. § 4635.

Cal. Pen. C. 477.

4351. Penalty for counterfeiting. Counterfeiting is punishable by imprisonment in the state prison for not less than one nor more than ten years. [C. L. § 4636.

Cal. Pen. C. 478*.

4352. Possession of counterfeit coin or bullion. Every person who has in his possession, or receives from any other person, any counterfeited gold or silver coin of the species current in this state, or any counterfeit gold dust, gold or silver bullion or bars, lumps, pieces, or nuggets, with the intention to sell, utter, put off, or pass the same, or permits, causes, or procures the same to be sold, uttered or passed, with intention to defraud any person, knowing the same to be counterfeit, is punishable by imprisonment in the state prison for a term not less than one nor more than ten years. [C. L. § 4637.

Cal. Pen. C. 479*.

4353. Possession of dies for counterfeiting. Every person who makes, or knowingly has in his possession, any die, plate, or any apparatus, paper, metal, machine, or other thing whatever, made use of in counterfeiting coin current in this state, or in counterfeiting gold dust, gold or silver bars, bullion, lumps, pieces, or nuggets, or in counterfeiting bank notes or bills, is punishable by imprisonment in the state prison for a term not less than one nor more than ten

years; and all such dies, plates, apparatus, paper, metal, or machine, intended for the purpose aforesaid, must be destroyed. [C. L. § 4638.

Cal. Pen. C. 2 480*.

4354. Using note, check, etc., as money. Any person who issues or circulates any note, check, memorandum, token, or other obligation for use as money in lieu of lawful money or other lawful medium of exchange, shall be deemed guilty of a misdemeanor, and shall, on conviction thereof in any court having jurisdiction, be punished for each offense by fine not exceeding one thousand dollars, to be paid into the state treasury, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment. [C. L. § 2120.

Cal. Pen. C. 2 648*.

CHAPTER 43.

LARCENY.

4355. Larceny defined. Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another. [C. L. § 4639.

Cal. Pen. C. 7 484.

Information or indictment may contain a count for obtaining money by false pretenses, a count for embezzlement, and a count for receiving or buying stolen property knowing it to be stolen, 4734.

INDICTMENT. Indictment for larceny of two "horses" is sufficient description of property stolen. Not necessary to use technically descriptive words designating sex or artificial character of animal. People v. Sensabaugh, 2 U. 473.

Proof that one animal was a gelding, one a mare, supports an indictment for stealing two horses. People v. Butler, 2 U. 504.

In prosecution for larceny, indictment charging that property stolen belonged to the husband, is supported by proof that it was money furnished by him to his wife, and in her possession. People v. McCarty, 5 U. 280; 17 P. 734.

The alleged larceny of several distinct articles may be joined in the same count, although such several articles belonged to different owners, where the time and the taking of each are the same. People v. Lyman, 2 U. 30.

INTENT. In larceny the intent to steal must exist at the time of the taking, and where the defendant took the property innocently, under a mistake of facts, and thereafter converted it to his use without a felonious intent, he is not guilty of larceny. People v. Miller, 4 U. 410; 11 P. 514.

Where the court charged, in effect, that if the defendant, who was a convict, took a horse for the purpose of escaping, it would be larceny, and also charged that the taking must have been with the intent to convert the horse to his own use and take him away from the owner without any intention of returning the same; held, not to be erroneous. People v. Flynn, 7 U. 378; 26 P. 1114.

The defendant pointed out a certain animal in the pound to the poundkeeper and sold it to him as his own; the keeper took the animal out of the pound and turned it upon the range. Subsequently it was learned that the defendant never owned the animal and had never had it in his possession; held, that there was no trespass nor asportation and hence no larceny. People v. Gillis, 6 U. 84; 21 P. 404.

If by means of any trick the owner is induced to part with the possession of property only, still meaning to retain the right of property, the taking is not larceny; but if the owner part with possession and the right of property also, the offense will be obtaining goods by false pretenses. People v. Berlin, 9 U. 383; 35 P. 498.

PROOF. For case in which evidence was held sufficient to support a verdict of guilty of larceny, see People v. Wright, 11 U. 41; 39 P. 477.

The evidence examined and held not to justify a verdict of guilty and therefore should be set aside. People v. Swasey, 6 U. 93; 21 P. 400.

Where C. and M. went to a store during the night and C. remained outside and M. entered by the back door, and was arrested near the safe, and the drill purchased by C. that day was found near M. when arrested; held, that there was an attempt to commit larceny on the part of C. and M., and that the entry was burglarious. People v. Morton. 4 U. 407; 11 P. 512.

POSSESSION OF STOLEN

PROPERTY. The possession of personal property recently stolen, and the possession of which is not explained, is a circumstance which the jury can consider in connection with other circumstances indicative of guilt, in arriving at their verdict. People v. Garns, 2 U. 260.

The recent possession of stolen property seems not in this western country to be sufficient to warrant a conviction, or, at any rate, if the identification of the property was not positive, the rule of recent possession should not apply. People v. Swasey, 6 U. 93; 21 P. 400.

If a reasonable explanation of the possession of alleged stolen property is made, and the explanation is not challenged, the defendant is entitled to an acquittal. Id.

Possession of stolen property, if unexplained, may constitute prima facie evidence of guilt, but this presumption weakens with time; but when possession is accompanied with denials, efforts to conceal, contradictory statements, etc., it may raise a strong presumption of guilt. People v. Chadwick, 7 U. 134; 25 P. 737.

The fact that stolen property was found in the possession of the defendant six hours after it had been stolen, even though no attempt was made to explain such possession, is not sufficient evidence to warrant a conviction. People v. Hart, 10 U. 204; 37 P. 330.

LARCENY OF STENOGRAPHER'S REPORT. A phonographic report of testimony taken upon a trial and having no intrinsic value except for such report may be the subject of larceny as personal property. People v. McGrath, 5 U. 525; 17 P. 116.

Such phonographic report having no market value, its value to the person who can use the testimony is the proper standard of value. Id.

4356. Larceny from mining claim, etc. Every person who shall feloniously steal, take, and carry away, or attempt to take, steal, and carry away from any mining claim, tunnel, sluice, under-current, riffle box, or sulphuret machine, any gold dust, amalgam, or quicksilver, the property of another, shall be deemed guilty of larceny. [C. L. § 4640.

Cal. Pen. C. ? 495s*.

4357. Larceny of lost property. Every person who finds lost property under circumstances which give him knowledge of a means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and restore the property to him, is guilty of larceny. [C. L. § 4641.

Cal. Pen. C. Z 485.

4358. Degrees of larceny. Larceny is divided into two degrees, the first of which is termed grand larceny; the second, petit larceny. [C. L. § 4642.

Cal. Pen. C. 2 486.

When statute does not define degrees of larceny,

4359. Grand larceny defined.

either of the following cases:

1. 2.

jury need not find value of property stolen. Peo-
ple v. Gough, 2 U. 7.

Grand larceny is larceny committed in Auded
chap 30
When the property taken is of a value exceeding fifty dollars.
When the property is taken from the person of another. [C. L. § 4643*. 1899

Cal. Pen. C. ? 487*.

For decision pointing out the distinction between

sec. 4643 and sec. 2209, C. L. 1888, see In re Gannett,
11 U. 283; 39 P. 496.

4360. Petit larceny defined. Larceny in other cases is petit larceny. [C. L. § 4643.

Cal. Pen. C. 2 488.

4361. Penalty for grand larceny. Grand larceny is punishable by imprisonment in the state prison for a term not less than one nor more than ten years. [C. L. § 4644.

Cal. Pen. C. ? 489.

4362. Penalty for petit larceny. Petit larceny is punishable by a fine in any sum less than three hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both. [C. L. § 4645.

Cal. Pen. C. 2 490*.

4363. Larceny of written instrument. Value. If the thing stolen consists of any evidence of debt, or other written instrument, the amount of money due thereupon, or secured to be paid thereby, and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property the title to which is shown thereby, or the sum which might be recovered in the absence thereof, is the value of the thing stolen. [C. L. § 4646.

Cal. Pen. C. 492.

4364. Larceny of passage ticket. Value. If the thing stolen is any ticket or other paper or writing entitling or purporting to entitle the holder or proprietor thereof to a passage upon any railroad, or vessel, or other public conveyance, the price at which tickets entitling a person to a like passage are usually sold by the proprietors of such conveyance, is the value of such ticket, paper, or writing. [C. L. § 4647.

Cal. Pen. C. 493.

All the pro

4365. Provisions apply to undelivered instrument. visions of this chapter apply where the property taken is an instrument for the payment of money, evidence of debt, public security, or passage ticket, completed

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