The Codes and Statutes of California, as Amended and in Force at the Close of the Twenty-sixth Session of the Legislature, 1885: Penal code and statutes in force

19. Punishment of misdemeanor, when not otherwise prescribed.

SEC. 19. Except in cases where a different punishment is prescribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or by both.

20. Unity of act and intent.

SEC. 20. In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence.

Union of act and intent.-"All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human action either praiseworthy or culpable. Indeed, to make a complete crime, cognizable by human laws, there must be both a will and an act. As a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be: 1. A vicious will; and 2. An unlawful act conse

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quent upon such vicious will:" 4 Bla. Com
20. It is the universal doctrine that to consti-
tute a crime there must concur both an evil act
and an evil intent. Actus non reum facit
nisi meus sit rea: 1 Bish. Crim. L., secs. 227,
229; 3 Greenl. Ev., sec. 13; People v. Collins,
53 Cal. 185; and see the elaborate discussion of
this question in People v. Harris, 29 Id. 679,
in note to sec. 22, post. This maxim, however,
applies only to criminal cases; in civil matters
the rule is otherwise: Vaughan v. Menlove, 3
Bing. N. C. 468. The intent with which a
homicide was committed may be proved by
direct or circumstantial evidence tending to
establish the fact: People v. Pool, 27 Cal. 572;
see sec. 1102, note.

Intoxication, effect of: Sec. 22, and note.
Insanity: Sec. 26, and note.

21. Intent, how manifested, and who considered of sound mind.

SEC. 21. The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots or lunatics, nor affected with insanity.

Presumptions as to intention.-Conclusive presumption. It is provided in the Code of Civil Procedure that a malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another, shall be conclusively presumed: Sec. 1962, post. Other presumptions.-By section 1963, Code of Civil Procedure, it is enacted that the following presumptions are to be held satisfactory if uncontradicted, but that they may be controverted by other evidence, viz: 1. That an unlawful act was done with an unlawful intent; 2. That a person intends the ordinary consequence of his voluntary act. The effect of

these statutory rules of evidence is that when the doing of an act which if coupled with a guilty intent would be a violation of law is proven, the burden of proving the act to have been done without a guilty intent is, in most cases, thrown on the accused: People v. Harris, 29 Cal. 678. These presumptions, however, are not to be arbitrarily applied. The jury are to accept certain general principles of probable reasoning, which it is the duty of the court to announce, not as binding rules of law, but as logical processes of great value in all questions of evidential induction: Whart. Crim. Ev., sec. 734 et seq.

22. Drunkenness no excuse for crime— When it may be considered.

SEC. 22. No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitue any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.

Intoxication, effect of, on responsibility for crime. The law in this connection may be summed up as follows: 1. Settled insanity, produced immediately by intoxication, affects the responsibility in the same way as insanity produced by any other cause; 2. Insanity immediately produced by intoxication does not destroy responsibility where the patient, when

sane and responsible, made himself voluntarily intoxicated; 3. While intoxication per se is no defense to the fact of guilt, yet when the question of intent or premeditation is concerned, evidence of it is material for the purpose of determining the precise degree: 1 Whart. Crim. L., 7th ed., sec. 32.

An exception to the second rule above given

will be found in those cases where the law requires, as it does in some offenses, a specific intent as distinguished from mere general malevolence to render a person guilty. In such cases the intent to drink, and the drunkenness following, cannot supply the place of the specific intent: 1 Bish. Crim. L., sec. 408. Where one passing counterfeit money is too drunk to know it to be counterfeit, and consequently to entertain the intent to defraud, he is not liable criminally: Pigman v. State, 14 Ohio, 555; United States v. Roudenbush, Baldw. 514. And where the offense charged was that of assault with intent to commit murder, it was said to be a proper instruction to the jury that if the defendant's mental faculties were so overcome by intoxication that he was not conscious of what he was doing; or if he did know what he was doing, but did not know why he was doing it; or did not know that his actions and the means he was using were naturally adapted or calculated to endanger life or produce death-then he had not sufficient capacity to entertain the intent, and in that event they could not infer the intent from his acts: Roberts v. People, 19 Mich. 401. The following has been stated by the supreme court of California as a correct exposition of the law applicable to most cases: "It is a well-settled rule of law that drunkenness is no excuse for the commission of a crime. Insanity, produced by intoxication, does not destroy responsibility when the party, when sane and responsible, made himself voluntarily intoxicated; and drunkenness forms no defense whatever to the fact of guilt, for when a crime is committed by a party while in a fit of intoxication, the law will not allow him to avail himself of his own gross vice and misconduct to shelter himself from the legal consequences of such crime. Evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of the crime, and for this purpose it must be received with great caution:" People v. Lewis, 36 Cal. 531; People v. Williams, 43 Id. 344; People v. Ferris, 55 Id. 588; People v. Jones, 63 Id. 168. People v. Harris, 29 Cal. 678.-The defendant was indicted for voting twice at the general election held September 6, 1865. The evidence showed that the defendant voted at the election polls of the fifth district of San Francisco at about ten o'clock in the forenoon, when his right to vote was challenged, on the ground that he was not a resident of the district. The challenge being withdrawn, the defendant voted. About two or three o'clock in the afternoon he returned to the same polls very much intoxicated, and again offered to vote. The same person who had challenged his right to vote at that place in the morning informed him that he had voted before, and that he would get himself in trouble if he voted again. The defendant, in reply, vehemently protested that he had not voted, and declared his willingness to so make oath. The oath prescribed by the statute was then administered to him by the proper officer, to which he responded in the affirmative, and then voted the second time. Upon trial, defendant was found guilty, and sentenced to imprisonment in the state prison for one year.

The supreme court said: "The theory upon which it was sought to exculpate the defendant of criminality was that he was in such a condition mentally when he voted the second

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time as not to know that he had already voted,
done so.
It is laid down in the books on the
but, on the contrary, believed that he had not
subject that it is a universal doctrine that to
constitute what the law deems a crime there
must concur both an evil act and an evil in-
1 Bish. Crim. L., secs. 227, 229; 3 Greenl.
tent. Aetus non facit reum nisi meus sit rea:
Ev., sec. 13. Therefore the intent with which
the unlawful act was done must be proved, as
well as the other material facts stated in the
indictment, which may be by evidence, either
or by inference of law from other facts proved.
direct or indirect, tending to establish the fact,
When the act is proved to have been done by
the accused, if it be an act in itself unlawful,
have been intended, and the proof of justifica-
the law in the first instance presumes it to
this legal and natural presumption: 3 Greenl.
tion or excuse lies on the defendant to overcome
Ev., secs. 13, 14, 18. Now, when the statute
declares the act of voting more than once at
the same election by the same person to be a
felony, it must be understood as implying that
The
the interdicted act must be done with a crimi-
which such intention may be inferred.
nal intention, or under circumstances from
defendant's counsel at the trial seems to have
apprehended the true rule of law on the sub-
ject, and to have regarded the burden as on
the defendant to show by evidence that the
act of his voting the second time was not crim-
inal; and for this purpose evidence of his in-
toxicated and excited condition was submitted
to the jury, in order that they might deter-
cases, whether the defendant was conscious at
mine, under the rules of law governing in such
the time of having voted before at the same
election. The question was fairly before the
was about when he voted the second time.
jury whether the defendant knew what he
was very much intoxicated, but whether to a
From the evidence in the case it appears he
degree sufficient to deprive him of all knowl-
to decide.
edge of having already voted was for the jury

"The law does not excuse a person of a
crime committed while in a state of voluntary
intoxication. In Rex v. Thomas, 7 Car. & P.
817, Parke, B., said to the jury: 'I must tell
you that if a man makes himself voluntarily
drunk, it is no excuse for any crime he may
commit whilst he is so; he takes the conse-
quences of his own voluntary act, or most
crimes would go unpunished;' and to the same
effect is the language of Alderson, B., in Rex
v. Meakin, 7 Id. 297; and in harmony with
this doctrine is the whole current of English
authority: 1 Whart. Crim. L., sec. 39. Mr.
Wharton says that in this country the same
position has been taken with marked uniform-
ity, it being invariably held that voluntary
drunkenness is no defense to the factum of
guilt; the only point about which there has
been any fluctuation being the extent to which
mine the exactness of the intent or extent of
evidence of drunkenness is receivable to deter-
deliberation; Id., sec. 40. In Pigman v. State,
14 Ohio, 555, it was held that a man who
ble if he is so drunk as to be incapable of
passes counterfeit money is not criminally lia-
knowing that it is counterfeit, and conse-
quently of entertaining the intention to de-
fraud, provided there was no ground to sup-
pose he knew the money to be counterfeit

before then; and in Swan v. State, 4 Humph. 136, 141, the supreme court of Tennessee said: 'Although drunkenness, in point of law, constitutes no excuse or justification for crime, still, when the nature and essence of a crime is made by law to depend upon the peculiar state and condition of the criminal's mind at the time and with reference to the act done, drunkenness, as a matter of fact affecting such state and condition of the mind, is a proper subject for consideration and inquiry by the jury. The question in such case is, What is the mental status?' In Regina v. Moore, 3 Car. & Kir. 319, the defendant was indicted for an attempt to commit suicide by drowning, and in defense it was alleged she was unconscious, from drunkenness, at the time of the nature of the act. The court was of the opinion that if she was so drunk as not to know what she was about the jury could not find that she intended to destroy herself: Regina v. Cruse, 8 Car. & P. 546; United States v. Roudenbush, 1 Baldw. 517; Kelly v. State, 3 Smed. & M. 518; Pirtle v. State, 9 Humph. 663; Haile v. State, 11 Id. 154.

"While the condition of the accused, caused by drunkenness, may be taken into consideration by the jury, with the other facts of the case, to enable them to decide in respect to the question of intent, it is proper to observe that drunkenness will not excuse crime: People v. King, 27 Cal. 514. The inquiry to be made is, whether the crime which the defendant is accused of having committed has in point of fact been committed, and for this purpose whatever will fairly and legitimately lead to the discovery of the mental condition and status of the accused at the time may be given in evidence to the jury, and may be considered by them in determining whether the defendant was in fact guilty of the crime charged against him. Great caution is necessary in the application of this doctrine, and those whose province it is to decide in such cases should be satisfied beyond a reasonable doubt, from all the facts and circumstances before them, that the unlawful act was committed by the accused when his mental condition was such that he did not know that he was committing a crime, and also that no design existed on his part to do the wrong before he became thus incapable of knowing what he was doing.

"We have said more respecting the character of the defense, or excuse imposed, than would have been necessary but for the reason that it is important that those who may be

guilty of violating the law may understand that a state of intoxication can be of no avail as an excuse for crime.

"The court told the jury, as we have seen, that the statute makes the act of voting more than once at the same election, and not the act of voting knowingly-that is, intentionally-more than once at any one election, a crime. The court further charged the jury, in substance, that evidence of voluntary intoxication is properly admissible as affecting crime only in those cases in which it is necessary to ascertain whether the accused was in a mental condition which enabled him to form a deliberate, premeditated purpose to commit the of fense; but in the same connection the jury were told, in effect, that the case before them was not one of those cases in which the defendant could interpose the defense that he was intoxicated to a degree rendering him unconscious of what he had done, and of the wrong which he was doing. The court then instructed the jury, at the request of the defendant's counsel, that every crime involves a union of act and intent, or criminal negligence. That the law does not punish a man for his intention, but that act and intent must unite to constitute a crime; but at the same time the court refused to modify in any degree the charge already given, though especially requested so to do.

"Taking these two portions of the charge together, we may understand the court as declaring: 1. That a crime is constituted by the commission of a forbidden act, united with a felonious intent on the part of him who does the act, or caused it to be done; 2. That the act of voting more than once at the same election was a crime, even though not done with knowledge on the part of him who so votes that he was voting the second time; 3. That the case before the jury was not one in which the defendant could show that by reason of his intoxicated condition he did not know what he was doing when he voted the second time.

"We do not see how these charges involving the question of felonious knowledge or intention can be harmonized. The second and third stand in direct antagonism to the first, and the greater prominence was given to the one of which the defendant complains, and which we think to be erroneous. We are of the opinion the court erred also in excluding from the jury any consideration of the mental status of the defendant by reason of his Intoxicated condition when he voted the second time."

23. Certain statutes specified as continuing in force.

SEC. 23. Nothing in this code affects any of the provisions of the following statutes, but such statutes are recognized as continuing in force, notwithstanding the provisions of the codes, except so far as they have been repealed or affected by subsequent laws:

1. All acts incorporating or chartering municipal corporations, and acts amending or supplementing such acts;

2. All acts consolidating cities and counties, and acts amending or supplementing such acts;

3. All acts for funding the state debt, or any part thereof, and for issuing state bonds, and acts amending or supplementing such acts;

4. All acts regulating and in relation to rodeos;

5. All acts in relation to judges of the plains;

6. All acts creating or regulating boards of water commissioners and overseers in the several townships or counties of the state;

7. All acts in relation to a branch state prison;

8. An act for the more effectual prevention of cruelty to animals, approved March thirtieth, eighteen hundred and sixty-eight;

9. An act for the suppression of Chinese houses of ill-fame, approved March thirty-first, eighteen hundred and sixty-six;

10. An act relating to the Home of the Inebriate of San Francisco, and to prescribe the powers and duties of the board of managers and the officers thereof, approved April first, eighteen hundred and seventy;

11. An act concerning marks and brands in the county of Siskiyou, approved March twentieth, eighteen hundred and sixty-six;

12. An act to prevent the destruction of fish in the waters of Bolinas bay, in Marin county, approved March thirty-first, eighteen hundred and sixty-six; 13. An act concerning trout in Siskiyou county, approved April second, eighteen hundred and sixty-six;

14. An act to prevent the destruction of fish in Napa river and Sonoma creek, approved January twenty-ninth, eighteen hundred and sixty-eight.

15. An act to prevent the destruction of fish and game in, upon, and around the waters of Lake Merritt or Peralta, in the county of Alameda, approved March eighteenth, eighteen hundred and seventy;

16. An act to regulate salmon fisheries in Eel river, in Humboldt county, approved April eighteenth, eighteen hundred and fifty-nine;

17. An act for the better protection of stock-raisers in the counties of Fresno, Tulare, Monterey, and Mariposa, approved March twentieth, eighteen hundred and sixty-six;

18. An act concerning oysters, approved April twenty-eighth, eighteen hundred and fifty-one;

19. An act concerning oyster-beds, approved April second, eighteen hundred and sixty-six;

20. An act concerning gas companies, approved April fourth, eighteen hundred and seventy.

Acts continued in force.-The reason as signed by the code commissioners for this section is, as appears from their notes: "The acts retained by this and other sections of the codes, but not incorporated in either code, are chiefly temporary in their character, and for that reason ought not to have a place in a code intended to be permanent." In the following cases the supreme court of this state has passed upon the effect of the codes upon statutes contended to have been continued in force by this section: The provisions of the Political Code, with respect to the collection of the revenue in the city and county of San Francisco, were deemed to have superseded existing regulations: Savings and Loan Soc. v. Austin, 46 Cal. 481. The acts relative to percentage on the amount involved in an action forming part of the costs: Whitaker v. Haynes, 49 Id. 596; to the lien on live-stock for feed or pasture furnished: Johnson v. Perry, 53 Id. 351; to the salary of the sheriff in the city and county of San Francisco: Adams v. San Francisco, 50 Id. 118; and see sec. 4331 Pol. Code; to the collection of licenses: Ex parte Newton, 53 Id. 571; and to the San Francisco

police court: Ex parte Simpson, 47 Id. 127; were not affected by the code. Sacramento county was held not to be existing under a municipal charter within the meaning of the first subdivision above: People v. Sacramento Co., 45 Id. 692. But the consolidation act remained unaffected by the Political Code: Wood v. Election Commissioners, 58 Id. 565. And see further acts in force, secs. 19, 4442, Pol. Code.

Subd. 1-6.-The acts referred to in the first six subdivisions will be found in the Political Code in their appropriate places.

Subd. 7. Branch prisons: See acts in note to sec. 1595, post.

Subd. 8-20.-The act referred to in subdivision 8 will be found in Stats. 1868, 604; but see Stats. 1874, 499; in subdivision 9, see Stats. 1866, 641; but see amendments, Stats. 1874, 84; in subdivision 10, see Stats. 1870, 585; but compare Stats. 1876, 325; in subdivision 11, see Stats. 1866, 332; in subdivision 12, see Stats. 1866, 637; in subdivision 13, see Stats. 1866, 857; in subdivision 14, see Stats. 1868, 13; but see amendment, Stats. 1871, 441; in subdivision

15, see Stats. 1870, 325; in subdivision 16, see Stats. 1859, 298; in subdivision 17, see Stats. 1866, 322; in subdivision 18, see Stats. 1851,

24. This act, how cited.

432; but see repealing clause, Stats. 1874, 940; in subdivision 19, see Stats. 1866, 848; also see Stats. 1874, 940.

SEC. 24. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as "the Penal Code," adding, when necessary, the number of the section.

This act, how cited.-The constitution nowhere uses the word "code," but speaks of the way in which an "act" may be revised or amended: Art. 4, sec. 24. In Earle v. Board of Education, 55 Cal. 489, it was in effect said by

Justice McKinstry, in his concurring opinion, that the proper title of what is commonly known as "the Political Code" is "An act to establish a Political Code."

Title of the act: See ante, sec. 1.

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