exposes for sale, any vinous or alcoholic liquors, is guilty of a misdemeanor. [Amendment, approved April 3, 1876; Amendments 1875-6, 109; took effect from passage.] An Act to prohibit the sale of intoxicating liquors within two miles of the University of California. [Approved December 23, 1873; 1873-4, 12.] No liquor to be sold within two miles of university. SECTION 1. It shall not be lawful for any person or persons to keep or expose for sale, or sell, or give, or permit others to take, for a consideration, directly or indirectly, any malt, spirituous, or other alcoholic liquors, upon or within two miles of the grounds belonging and adjacent to the University of California in Alameda county. Penalty. SEC. 2. Any violation of section first of this act shall be deemed a misdemeanor, punishable by fine, or imprisonment in the county jail of Alameda county, or both. The fine to be not less than fifty dollars nor more than one hundred dollars; and the imprisonment to be not less than thirty nor more than ninety days for each offense. SEC. 3. This act shall take effect from and after the first day of February, eighteen hundred and seventy-four. This act was declared constitutional and valid in Ex parte McLain, 61 Cal. 436. 173. Importing foreign convicts. SEC. 173. Every captain, master of a vessel, or other person, who willfully imports, brings, or sends, or causes or procures to be brought or sent, into this state, any person who is a foreign convict of any crime which, if committed within this state, would be punishable therein (treason and misprision of treason excepted), or who is delivered or sent to him from any prison or place of confinement in any place without this state, is guilty of a misdemeanor. Based upon the act of 1850 in relation to the importation of convicts: Stats. 1850, 202, secs. 1, 2. 174. Bringing Chinese into the state. SEC. 174. Every person bringing to or landing within this state any person born either in the empire of China or Japan, or the islands adjacent to the empire of China, without first presenting to the commissioner of immigration evidence satisfactory to such commissioner that such person desires voluntarily to come into this state and is a person of good character, and obtaining from such commissioner a permit describing such person and authorizing the landing, is punishable by a fine of not less than one nor more than five thousand dollars, or by imprisonment in the county jail not less than two nor more than twelve months. "This section embodies the material penal provisions of the act to prevent the kidnaping and importation of Mongolian females for criminal purposes, and the kindred act of March 175. Separate and distinct prosecutions. 18, 1870; Stats. 1870, 330 et seq. The provisions of this section are broad enough to include every offense defined in either act: " Commissioners' note. SEC. 175. Every individual person of the classes referred to in the two preceding sections, brought to or landed within this state contrary to the provisions of such sections, renders the person bringing or landing liable to a separate prosecution and penalty. 176. Omission of duty by public officer. SEC. 176. Every willful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor. 177. Penally when not prescribed. SEC. 177. When an act or omission is declared by a statute to be a public offense, and no penalty for the offense is prescribed in any statute, the act or omission is punishable as a misdemeanor. [Amendment, approved March 30, 1874; Amendments 1873-4, 426; took effect July 1, 1874.] 178. Officers and employees of corporations not to employ Chinese. SEC. 178. Any officer, director, manager, member, stockholder, clerk, agent, servant, attorney, employee, assignee, or contractor of any corporation now existing, or hereafter formed under the laws of this state, who shall employ, in any manner or capacity, upon any work or business of such corporation, any Chinese or Mongolian, is guilty of a misdemeanor, and is punishable by a fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the county jail of not less than fifty nor more than five hundred days, or by both such fine and imprisonment; provided, that no director of a corporation shall be deemed guilty under this section who refuses to assent to such employment, and has such dissent recorded in the minutes of the board of directors. 1. Every person who, having been convicted for violating the provisions of this section, commits any subsequent violation thereof after such conviction is punishable as follows: 2. For each subsequent conviction such person shall be fined not less than five hundred nor more than five thousand dollars, or by imprisonment not less than two hundred and fifty days nor more than two years, or by both such fine and imprisonment. [New section, approved February 13, 1880; Amendments 1880, 1 (Ban. ed. 6); took effect immediately.] In conflict with the Chinese treaty: See note to next section. 179. Corporations not to employ Chinese-Penalty. SEO. 179. Any corporation now existing, or hereafter formed under the laws of this state, that shall employ, directly or indirectly, in any capacity, any Chinese or Mongolian, shall be guilty of a misdemeanor, and upon conviction thereof shall for the first offense be fined not less than five hundred nor more than five thousand dollars, and upon the second conviction shall, in addition to said penalty, forfeit its charter and franchise, and all its corporate rights and privileges, and it shall be the duty of the attorney-general to take the necessary steps to enforce such forfeiture. [Amendment, approved February 13, 1880; Amendments 1880, 2 (Ban. ed. 6); took effect immediately.] In conflict with Chinese treaty. The last two sections were enacted by the legisla ture for the purpose of giving effect to section 2 of article 19 of the constitution of California. This section of the constitution, and the two sections mentioned, were held, In re Tiburcio Parrot, 5 Pac. C. L. J., supplement, by the circuit court of the United States, to be in conflict with the treaty of the United States with China, 16 Stat. 7401, and therefore void. An Act relating to the intoxication of officers. Intoxication of officers-Misdemeanor. SECTION 1. Any officer of a town, village, city, county, or state, who shall be intoxicated while in discharge of the duties of his office, or by reason of intoxication is disqualified for the discharge of or neglects his duties, shall be guilty of a misdemeanor, and on conviction of such misdemeanor, shall forfeit his office; and in such case the vacancy occasioned thereby shall be filled in the same manner as if such officer had filed his resignation in the proper office, and it had been accepted by the proper authority; provided, such acceptance shall have been necessary to make the office vacant. SEO. 2. This act shall take effect immediately. 51 CHAPTER VIII. CONSPIRACY. 182. Criminal conspiracy defined, and punishment fixed. SEC. 182. If two or more persons conspire: 1. To commit any crime; 2. Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime; 3. Falsely to move or maintain any suit, action, or proceeding; 4. To cheat and defraud any person of any property by any means which are in themselves criminal, or to obtain money or property by false pretenses; or, 5. To commit any act injurious to the public health, to public morals, or for the perversion or obstruction of justice, or due administration of the laws; -They are punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or both. [Amendment, approved March 30, 1874; Amendments, 1873-4, 426; took effect July 1, 1874.] Indictable conspiracy has been defined to be a confederation by two or more persons to commit an indictable offense; or by deceit or falsehood or other fraudulent means to defraud the public generally, or a particular individual, though in a way which might not expose a single person to indictment if the fraud was under taken by him alone: 2 Whart. Crim. L., 8th ed., sec. 1337. Any definition of what constitutes conspiracy is necessarily somewhat uncertain and general. At common law, the list of acts which were considered conspiracies is quite extensive. Thus, a confederation to commit a felony, or a misdemeanor, or to cheat, or defraud, to personate another, to marry under a feigned name, to injure a man in his trade or profession, to charge a man as the reputed father of a bastard, to manufacture spurious goods with intent to sell them as genuine, to file a fraudulent bond, to extort a deed by means of a peace warrant, to sell fraudulent railroad tickets, to act in fraud of bankrupt or insolvency laws, to violate lottery laws, to commit assault or any breach of the peace, to falsely imprison, to excite sedition, etc., have each been held to constitute an indictable conspiracy. But a conspiracy to commit a mere civil trespass, as to kill game, is not indictable. For a full discussion of the law on this subject, see 2 Whart. Crim. L., Sth ed., secs. 1337, 1406. See sec. 1104. See also a valuable note to People v. Richards, 51 Am. Dec. 92-94. Indictment for conspiracy: Sec. 1104, note 2. Evidence of conspiracy: Sec. 1104, note 3. Civil action will not lie for a conspiracy unless accompanied by some wrongful act damaging the plaintiff: See Taylor v. Bidwell, 3 West Coast Rep. 479. 183. No other conspiracies punishable criminally. SEC. 183. No conspiracies, other than those enumerated in the preceding section, are punishable criminally. 184. Overt act, when necessary. of an SEC. 184. No agreement, except to commit a felony upon the person other, or to commit arson, or burglary, amounts to a conspiracy, unless some act, beside such agreement, be done to effect the object thereof, by one or more of the parties to such agreement. "The rule of the section is a restriction of the rule of common law. By that rule the gist of conspiracy is the unlawful coufederating; and the act is complete when the confederacy is made. Any act done in pursuance of it is no constituent part of the offense, but merely an aggravation of it: See Common wealth v. Judd, 2 Mass. 329; State v. Rikey, 10 N. J. L. 293; State v. Buchanan, 5 Har. & J. 317, 352. So, also, it is said that where an indictment charges an ordinary conspiracy it is not necessary to prove a common design between the defendants before proving the acts of each defendant; for the acts of each defend ant are only evidence against himself, and may be the only means of establishing the conspiracy. In high treason the overt act of one is the overt act of all; and therefore a common design must, in such cases, precede the proof of individual acts: Regina v. Brittain, 11 L. T. 48; 3 Cox C. C. 77. As to whether the misdemeanor of conspiracy to commit a felony is to be deemed merged in the felony when subsequently committed, see Commonwealth v. Fisher, 5 Mass. 106; Lambert v. People, 9 Cow. 620; Rex v. Button, 3 Cox C. C. 229; and 18 L. J.M. C. 19: " Commissioners' note. 185. Wearing mask or disguise, when unlawful. SEC. 185. It shall be unlawful for any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of: 1. Evading or escaping discovery, recognition, or identification in the commission of any public offense; 2. Concealment, flight, or escape, when charged with, arrested for, or convicted of any public offense. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor. [New section, approved March 30, 1874; Amendments 1873-4, 426; took effect July 1, 1874.] VI. ASSAULTS WITH INTENT TO COMMIT FELONY, OTHER THAN ASSAULTS WITH INTENT TO MURDER. 220 225 236 240 248 CHAPTER L HOMICIDE. 187. Murder defined. SEC. 187. Murder is the unlawful killing of a human being, with malice aforethought. Degrees of murder: Sec. 189. The above definition includes both degrees of murder, and under an information charging the offense in the language of the section, the prisoner may be convicted of murder in the first degree: People v. De la Cour Soto, 63 Cal. 165. Murder is the killing of any person under the king's peace, with malice prepense or afore thought, either express or implied by law: 1 Russell on Crimes, 421. Or as defined by Sir Edward Coke, the offense is committed "when a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied:" 3 Inst. 47. This definition is accepted by Blackstone: 4 Bla. Com. 196. This definition has, however, been severely criticised: Livingston's Pen. Law, 186. Another definition is, that the crime consists in the willful killing of any subject whatsoever, through malice aforethought:" 1 Hawk. P. C., sec. 3. But "a better definition," says a learned writer on criminal law, "is the following: murder is any act committed from what the law deems a depraved mind, fully bent on evil, the result of which act is the death of a human being within a year and a day from the time of its commission:" 2 Bish. Crim. L., sec. 652. The term "murder" has not two meanings, nor can it be construed in two different ways. It means simply, as it has always meant in this state, the unlawful killing of a human being with malice aforethought, either express or implied: People v. Haun, 44 Cal. 96. It is murder to kill a person, though he be already mortally wounded by another: People v. Ah Fat, 48 Id. 61. If the wound be inflicted with felonious intent and death ensue from the effects of the wound at any time within a year and a day, it is murder: People v. Steventon, 9 Id. 273; see sec. 194. Deliberation and intention are vital elements of murder, and if the court's instructions ignore them it will be erroneous: People v. Miles, 55 Id. 207; and see note to sec. 189, post. So where defendant used drugs to commit an abortion, as the result of which the woman died, there being no evidence of an intent to kill the accused may be admitted to bail: Ex parte Wolff, 57 Id. 94. Human being.- A child in its mother's womb is not a "human being" within the meaning of that term as used to define murder. The rule is that the child must be born, and that every part of it must have come from the mother before the killing, otherwise it will not be murder: Rex v. Brain, 6 Car. & P. 349; Rex v. Crutchley, 7 Id. 814; Rex v. Poulton, 5 Id. 329. Murder and manslaughter.-Whether a homicide amounts to murder, or to manslaughter merely, does not depend upon the presence or absence of the intent to kill. In either case there may be a present intention to kill at the moment of the commission of the act: People v. Freel, 48 Cal. 436; see sec. 192, note 1. Malice: See note to next section. In its legal sense, malice does not mean mere hatred 188. Malice defined. and ill-will, but denotes an intent to do an unlawful act, without legal justification or excuse. But evidence of previous hatred and illwill is always admissible as tending to prove active or legal malice at the time of the homi. cide: People v. Taylor, 36 Cal. 255. It means a wrongful act, done intentionally, without just cause or excuse: Maynard v. F. F. Ins. Co., 34 Id. 48; see sec. 7, subd. 4. The rule is well settled that where an unlawful killing is proved malice will be presumed, and the burden of proof will be thrown on the defendant to show the absence or want of malice: Regina v. Maloney, 9 Cox C. C. 6; Commonwealth v. Webster, 5 Cush. 295; see sec. 1105, note. SEC. 188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellowIt is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. creature. Orgin of section. The code commissioners say that this section is based upon section 20 of the act of 1850, 231, and part of section 21 of the same act as amended in 1856, 219. Section 20 is as follows: "Express malice is that deliberate intention unlawfully to take away the life of a fellow-creature which is manifested by external circumstances, capable of proof." This section did not pretend to deine implied malice, but in section 21, which was devoted chiefly to a division of murder into degrees, it is declared that "malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." The commissioners then state: "It is very clear that neither definition is complete when the term 'malice' is used in a general sense, as it is used in the sections cited. The commission have placed the definition of malice express and malice implied in the same section, and limited the definition to that malice which is an ingredient of murder; they omit from the definition of express malice the phrase 'by external circumstances capable of proof,' for that phrase performs no office in the section, and constitutes at best a very indifferent definition of the word 'manifested,' which precedes it. 'Malice in a legal sense means a wrongful act done intentionally without just cause or excuse:' Maynard v. F. F. Ins. Co., 34 Cal. 48; see sec. 7, subd. 4, for a general definition of malice." Malice aforethought: Sec. 187, note. The killing must be committed with malice aforethought to constitute the crime of murder. 189. Degrees of murder. This is the grand criterion which distinguishes murder from other killing; and this malice prepense is not so properly spite or malevolence to the deceased in particular as any evil design in general-the dictate of a wicked, depraved, and malignant heart-and it may be either express or implied in law. Malice aforethought is a necessary ingredient in the crime of murder, and should therefore be alleged in the indictment: People v. Schimdt, 63 Cal. 28, citing People v. Urias, 12 Id. 325; People v. King, 27 Id. 507; People v. Bonilla, 38 Id. 699. Express and implied malice.-Express malice is when one, with a sedate, deliberate mind and formed designed, doth kill another; which formed design is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm: 4 Bla. Com. 198. No better definition of implied malice can be found than that given in the section: People v. Williams, 43 Cal. 349. A very able authority denies that there is any distinction between "malice express" and "malice implied." Our only way of proving malice is by inferring it from circumstances. Even should a party when examined on the stand say, "I did the act maliciously," the question would still remain, how far the statement is to be believed. The mode of proof is not demonstration, but inference: 1 Whart. Crim. L., Sth ed., sec. 113; Whart Crim. Ev., secs. 7, 735, 739. See People v. Rater, 63 Cal. 421, for proper submission of the question of malice to the jury. SEC. 189. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree. [Amendment, approved March 30, 1874; Amendments 1873-4, 427; took effect July 1, 1874.] |