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Bush, 169. See section 121 as to oaths administered in an irregular manner.

In Ex parte Carpenter, 64 Cal. 267, Carpenter appeared before a notary with a deed signed by one Bouchard; the notary, not knowing Carpenter, swore him, and he, testifying that he was Bouchard, certified to the acknowledgment. The court held this amounted to a probable cause for holding Carpenter for perjury.

Indictment or information: See sec. 966. If the indictment charge that defendant in a certain proceeding, describing it, "did will fully, corruptly, and falsely swear," etc., but does not allege that the perjury was committed "feloniously, it is nevertheless sufficient: People v. Parsons, 6 Cal. 487. The indictment should aver that the false oath was made before an officer having authority: State v. Dayton, 23 N. J. L. 49. If the information shows the administering of the oath, that it was before a person duly authorized, in a case in which it was properly administered, and that the statement was willfully false and in a material matter, it will be sufficient, although the pleading does not, in so many words, say the matter was material: People v. Kelly, 59 Cal. 372.

Evidence. On the trial the prosecution may prove by oral evidence what the defendant swore to, in respect to which the charge of

119. Oath defined.

perjury is made: People v. Curtis, 50 Cal. 95; Nelson v. State, 32 Ark. 192. Though the reporter's notes are prima facie evidence of the testimony given, yet such notes are inadmissible where the testimony was taken through an interpreter: People v. Lee Fat, 54 Cal. 527. Evidence that defendant was intoxicated at the time of the happening of the transaction, in reference to which he is charged with having testified falsely, is proper, in order to determine whether he knowingly testified falsely: Lytle v. State, 31 Ohio St. 196. A record of acquittal of a charge of perjury has been held to be conclusive evidence that the matter testified to was true: Bell v. Senneff, 83 Ill. 122. In this state perjury must be proved by the testimony of two witnesses, or one witness and corroborating circumstances: Sec. 1968, Code Civ. Proc.; see also People v. Young, 31 Cal. 563; People v. Quinn, 18 Id. 122; Ex parte McCarthy, 29 Id. 396; People v. Green, 54 Id. 592.

Instruction.-It is error to charge the jury, on a trial for perjury, that before they can believe a certain witness they must be entirely satisfied beyond a reasonable doubt; the witness is not on trial for perjury, and that he testifies falsely in order to convict the accused need be proved only by a preponderance of evidence: People v. Mitchell, 11 Pac. C. L. J. 506.

SEC. 119. The term " oath," as used in the last section, includes an affirmation, and every other mode authorized by law of attesting the truth of that which is stated.

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SEC. 120. So much of an oath of office as relates to the future performance of official duties is not such an oath as is intended by the two preceding sections. Oath of office: See Pol. Code, secs. 904 et seq.

121. Irregularity of administering.

SEC. 121. It is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner.

Manner of administering oath: See note to sec. 119. Irregularity of administering oath no defense: Ex parte Carpenter, 64 Cal. 267.

"3 Whart. Crim. L., secs. 2205-2207. Two classes of cases are important to be considered. One class is where an oath is administered in an irregular manner, but the person taking it supposes at the time that all the formalities of law are being complied with. Such were the circumstances in People v. Cook, 8 N. Y. 67, where challenged voters were sworn upon a copy of Watts's Psalms and Hymns, the book being supposed to be the bible. As to

122. Incompetency of witness no defense.

these cases the decision in People v. Cook is that the oath is valid, and the party is as amenable to the consequences of perjury as if it had been administered in strict conformity to the statute. Another class of cases is where the person taking the oath evades some formality of the oath with intent to escape its obligation; as where he kisses his thumb instead of the book. In these cases his fraud should not be permitted to secure him against punishment. The section in the text therefore prescribes the same rule for both classes: Code commissioners' note.

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SEC. 122. It is no defense to a prosecution for perjury that the accused was not competent to give the testimony, deposition, or certificate of which falsehood is alleged. It is sufficient that he did give such testimony or make such deposition or certificate.

Incompetency of witness is no defense: Ex parte Carpenter, 64 Cal. 267.

123. Witness's knowledge of materiality of his testimony not necessary.

SEC. 123. It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him; or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding.

124. Making depositions, etc., when deemed complete.

SEC. 124. The making of a deposition or certificate is deemed to be complete, within the provisions of this chapter, from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as

true.

125. Statement of that which one does not know to be true.

SEC. 125. An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false.

126. Punishment of perjury.

SEO. 126. Perjury is punishable by imprisonment in the state prison not less than one nor more than fourteen years.

127. Subornation of perjury.

SEC. 127. Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.

Subornation of perjury.-To constitute the crime of subornation of perjury, the party charged must have procured the commission of the perjury by inciting, instigating, or persuading the guilty party to commit the crime. Accordingly, it has been decided that to call a witness knowing that he will testify falsely is not sufficient to constitute this crime: Commonwealth v. Douglass, 5 Met. 241; 2 Whart. Crim. L., 8th ed., sec. 1329.

Indictment, sufficiency of-It is sufficient to charge the commission of the offense by a general averment, and it is not necessary that the particular fact which the defendant at

tempted to procure the witness to swear to should be specifically stated: State v. Holding, 1 McCord, 31; Tremain P. C. 169; see also Elkin v. People, 28 N. Y. 177.

Attempt to suborn perjury is not the generic name of any class of offenses, and if the information or indictment does not allege facts constituting a crime, it is demurrable: People v. Thomas, 63 Cal. 482.

A civil action will not lie for suborning a witness to swear falsely in a criminal prosecution against the plaintiff: Taylor v. Bidwell, 3 West Coast Rep. 479.

128. Procuring the execution of innocent person.

SEC. 128. Every person who, by willful perjury or subornation of perjury, procures the conviction and execution of any innocent person, is punishable by death.

"This section is founded on the eightythird of the crimes-and-punishment act, which declares that any person so procuring the conviction and execution of an innocent person 'shall be deemed guilty of murder.' The offense certainly does not fall within any known definition

of murder, and is repugnant to the definition of murder given in our statutes. The commission have therefore deemed it advisable to omit the words quoted, and to affix the punishment to the act itself:" Commissioners' note.

CHAPTER VI.

FALSIFYING EVIDENCE.

132. Offering false evidence.

SEC. 132. Every person who, upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or antedated, is guilty of felony.

133. Deceiving a witness.

SEC. 133. Every person who practices any fraud or deceit, or knowingly makes or exhibits any false statement, representation, token, or writing, to any witness or person about to be called as a witness upon any trial, proceeding, inquiry, or investigation whatever, authorized by law, with intent to affect the testimony of such witness, is guilty of a misdemeanor.

134. Preparing false evidence.

SEC. 134. Every person guilty of preparing any false or antedated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.

135. Destroying evidence.

SEC. 135. Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.

136. Preventing or dissuading witness from attending.

SEC. 136. Every person who willfully prevents or dissuades any person who is or may become a witness, from attending upon any trial, proceeding, or inquiry authorized by law, is guilty of a misdemeanor. Dissuading witness from appearing.-To dissuade a witness from attending a trial is undoubtedly a contempt of court, for which a party may be punished. It is also a criminal act, punishable by indictment: 2 Whart. Crim. L., 8th ed., sec. 1333; State v. Carpenter, 20

137. Bribing witnesses.

Vt. 9. The materiality of the testimony of the witness dissuaded from attending need not be proved: State v. Early, 3 Harr. (Del.) 562; Commonwealth v. Reynolds, 14 Gray, 87. Nor is it necessary to show that the witness was summoned or required to appear: Id.

SEC. 137. Every person who gives or offers, or promises to give, to any witness, or person about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced, or who attempts by any other means fraudulently to induce any person to give false or withhold true testimony, is guilty of a felony. [Amendment, approved March 30, 1874; Amendments 1873-4, 425; took effect July 1, 1874.]

Offering to bribe witness: See Jackson v. State, 43 Tex. 421; and State v. Hughes, Id. 518.

The offense was originally declared a misde

meanor.

138. Witness receiving or offering to receive bribe.

SEC. 138. Every person who is a witness, or is about to be called as such, who receives, or offers to receive, any bribe, upon any understanding that his testimony shall be influenced thereby, or that he will absent himself from the trial or proceeding upon which his testimony is required, is guilty of a felony. [Amendment, approved March 30, 1874; Amendments 1873-4, 425; took effect July 1, 1874.]

"The preceding chapter is founded upon section 3 of the act of April 27, 1863, Stats. 1863, 645, and sections 84 and 86 of the

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crimes-and-punishment act, as amended by the act cited:" Commissioners' note.

CHAPTER VII.

OTHER OFFENSES AGAINST PUBLIC JUSTICE.

142. Officer refusing to receive or arrest parties charged with crime.

SEC. 142. Every sheriff, coroner, keeper of a jail, constable, or other peaceofficer, who willfully refuses to receive or arrest any person charged with a criminal offense, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding five years.

143. Public administrator, neglect of duty or violation of duty by.

SEC. 143. Every person holding the office of public administrator, who willfully refuses or neglects to perform the duties thereof, or who violates any provision of law relating to his duties or the duties of his office, for which some other punishment is not prescribed, is punishable by fine not exceeding five thousand dollars, or imprisonment in the county jail not exceeding two years, or both.

Stats. 1851, 488, sec. 303.

144. Receiving compensation for arresting fugitives from justice.

SEC. 144. Every person who violates any of the provisions of section fifteen hundred and fifty-eight is guilty of a misdemeanor.

The section referred to relates to fees or compensation allowed persons for pursuing and securing the extradition of fugitives from justice.

145. Delaying to take person arrested before a magistrate.

SEO. 145. Every public officer or other person, having arrested any person upon a criminal charge, who willfully delays to take such person before a magistrate having jurisdiction, to take his examination, is guilty of a misdemeanor. "This section is intended to enforce the wellunderstood duty of officers or private persons who have made arrests. The arrested person is entitled to a speedy hearing upon the charge preferred against him. The subject might, indeed, be considered covered, so far as public

officers are concerned, by the general provisions elsewhere reported (sec. 176), making it a misdemeanor for an officer willfully to omit an official duty. But there would still remain cases in which a private person is authorized to make an arrest: Commissioners' note.

146. Making arrests, etc., without lawful authority.

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SEC. 146. Every public officer, or person pretending to be a public officer, who, under the pretense or color of any process or other legal authority, arrests any person, or detains him against his will, or seizes or levies upon any property, or dispossesses any one of any lands or tenements, without a regular process or other lawful authority therefor, is guilty of a misdemeanor.

147. Inhumanity to prisoners.

SEC. 147. Every officer who is guilty of willful inhumanity or oppression toward any prisoner under his care or in his custody is punishable by fine not exceeding two thousand dollars, and by removal from office.

See note to sec. 149.

148. Resisting public officers in the discharge of their duties.

SEC. 148. Every person who willfully resists, delays, or obstructs any public officer in the discharge or attempt to discharge any duty of his office, when no other punishment is prescribed, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding five years.

Resisting officers: Sec. 69, and note. Indictment under this section must show that the warrant of arrest which the constable was trying to serve at the time he was resisted

was issued by a justice having jurisdiction to issue the warrant, and that the offense was committed in the county: People v. Craig, 59 Cal. 370.

149. Assaults, etc., by officers, under color of authority.

SEC. 149. Every public officer who, under color of authority, without lawful necessity, assaults or beats any person, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding five years.

Officer, liability of, for assaulting person under color of authority.-An officer in the service of criminal or other process is not justified in the use of excessive violence, unless necessary in order to properly discharge the duties imposed upon him. In arresting a person, or in the performance of any official act, great care should be taken to use only such force as may be necessary. A person, although a wrong-doer, is not compelled to submit to any unreasonable or unnecessary violence. Notwithstanding a person may have violated the law, he does not for that reason forfeit all right to self-protection. The object of this section is to prevent officers from assaulting or beating persons, and in justification thereof asserting that it was done under the color of the authority imposed upon them by virtue of such office. The extent to which a wrong doer is justified in repelling any excessive violence is well illustrated by the case of People v. Gulick, Hill & D. Supp. 229. The defendant was indicted for an assault and battery upon one Catherine Peck. Defendant, claiming to be a special deputy, attempted to remove certain furniture belonging to the husband of Catherine, that had been levied upon by him by virtue of a court-martial's warrant, when she assaulted him, and to protect himself he committed the assault complained of. It ap

150. Refusing to aid officers in arrest, etc.

peared that the defendant, being a non-resi dent of the state, was not authorized to act as special deputy, and that his appointment was for that reason void. The recorder charged the jury that the defendant having no authority to act as special deputy, he was a trespasser in entering Peck's house; and that Mrs. Peck had a right to resist the execution of the warrant, and that defendant was liable to conviction for an assault if he exercised the least force in opposition to her resistance. On appeal, in reviewing this instruction, the court said: "It may be admitted, for the purpose of the decision, that the defendant was a trespasser in entering the house of Peck; but even a trespasser is not bound to submit quietly to unreasonable or unnecessary violence. Though in the wrong at the time, he does not thereby forfeit all right to self-protection, nor lie under obligation to give himself up, a resistless victim, to beating and bruising at the will of the injured party. On the contrary, he may, within acknowledged principles, protect himself by force from unreasonable or wanton violence committed or sought to be committed by the party trespassed upon. He can lawfully use no more force than is necessary and proper to prevent the trespass upon his rights:" See Harrison v. Hodgson, 10 Barn. & Cress. 445; 1 Whart. Crim. L., 8th ed., secs. 648-650.

SEC. 150. Every male person above eighteen years of age who neglects or refuses to join the posse comitatus or power of the county, by neglecting or refusing to aid and assist in taking or arresting any person against whom there may be issued any process, or by neglecting to aid and assist in retaking any person who, after being arrested or confined, may have escaped from such arrest or imprisonment, or by neglecting or refusing to aid and assist in preventing any breach of the peace, or the commission of any criminal offense, being thereto lawfully required by any sheriff, deputy sheriff, coroner, constable, judge, or justice of the peace, or other officer concerned in the administration of justice, is punishable by fine of not less than fifty nor more than one thousand dollars.

An Act to authorize boards of supervisors to pay the expenses of posse comitatus in criminal cases. [Approved April 16, 1880; 1880, 120 (Ban. ed. 341).]

Expenses of posse comitatus.

SECTION 1. The board of supervisors of any county may allow, in their discretion, such compensation as they may deem just, to defray the necessary expenses that have been incurred by a posse comitatus in criminal cases; provided, no claim shall be allowed for expenses which have not been incurred within one year before such allowance.

SEC. 2. This act shall take effect and be in force from and after its passage. Citizens aiding officers in making arrests. It is incumbent upon every private citizen to aid and assist officers in the lawful discharge of their duties. It is as imperative upon him to render such assistance as it is the duty of an officer to preserve the peace. A citizen has no discretion whatever in the matter, and if he fails to assist an officer when required, he renders himself liable to punishment, the same as any other person who violates the law: Res. v. Montgomery, 1 Yeates, 419; Com

fort v. Commonwealth, 5 Whart. 437; Regina v. Brown, 1 Car. & M. 314; 1 Whart. Crim. L., 8th ed., sec. 652a; Whart. Crim. Pl. & Pr., sec. 17, note. In Regina v. Brown, 1 Car. & M. 314, it was held that in order to convict a person of refusing to assist an officer in quelling a riot, three things must be proved: 1. That the officer saw a breach of the peace committed; 2. That there was a reasonable necessity for calling on the defendant for his assistance; and 3. That when duly called upon to assist the

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