TITLE V. Crimes by and against the Executive Power of the State. Acting in a public capacity without having qualified. § 71. § 72. Violation of laws prohibiting certain officers from dealing in scrip, etc., and from being interested in contracts. Fraudulently presenting bills or claims to public officers for allowance or payment. § 75. Exercising functions of office wrongfully. § 76. Refusal to surrender books, etc., to successor. § 77. Preceding sections to apply to administrative and ministerial officers. § 65. Acting in a public capacity without having qualified. Every person who exercises any function of a public office without taking the oath of office, or without giving the required bond, is guilty of a misdemeanor. [Amendment approved 1874; Code Amdts. 1873-74, p. 423.] Oath of office: Const., art. XX, § 3; see Pol. Code, §§ 904 et seq. Legislation § 65. 1. Enacted February 14, 1872 (based on Field's Draft, § 96, N. Y. Pen. Code, § 42), and then read: "Every person who exercises any of the functions of a public office without having taken and filed the oath of office, or without having executed and filed the required bond, is guilty of a misdemeanor, and forfeits his right to the office." 2. Amended by Code Amdts. 1873-74, p. 423. § 66. Acts of officers de facto not affected. The last section shall not be construed to affect the validity of acts done by a person exercising the functions of a public office in fact, where other persons than himself are interested in maintaining the validity of such acts. California Jurisprudence: See article Public Officers. Legislation § 66. Enacted February 14, 1872; identical with Field's Draft, § 97, N. Y. Pen. Code, § 43. § 67. Giving or offering bribes to executive officers. Every person who gives or offers any bribe to any executive officer of this state, with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer is punishable by imprisonment in the state prison not less than one nor more than fourteen years, and is disqualified from holding any office in this state. Bribery of judicial officer: See post, § 92. Giving bribes to judges, jurors, etc.: See post, § 92. California Jurisprudence: See article Bribery, vol. 4, p. 488. Legislation § 67. Enacted February 14, 1872; based on Field's Draft, § 98, N. Y. Pen. Code, § 44; Stats. 1863, p. 645, §§ 1, 2, 3. § 68. Asking or receiving bribes. Every executive officer or person elected or appointed to an executive office, who asks, receives, or agrees to receive, any bribe, upon any agreement or understanding that his vote, opinion, or action upon any matter then pending, or which may be brought before him in his official capacity, shall be influenced thereby, is punishable by imprisonment in the state prison not less than one nor more than fourteen years; and, in addition thereto, forfeits his office, and is forever disqualified from holding any office in this state. This section is not repealed by implication by 1879 of the Political Code. People v. Seeley, 137 Cal. 13, 15, 69 Pac. 693. California Jurisprudence: See article Bribery, vol. 4, p. 489. Legislation § 68. Enacted February 14, 1872; based on Field's Draft, § 99, N. Y. Pen. Code, § 45; Stats. 1863, p. 645, §§ 1, 2, 3. § 69. Resisting officers. Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding five years. Section 102, post, refers to interference with an officer where no force or violence is employed. Neither the term "force" nor "violence" is used, while in the above section an essential element is a "threat" or "force" or "violence." Manss v. Superior Court, 25 Cal. App. 533, 144 Pac. 298. Section 148, post, is general in its terms and applies to interference with or obstruction of any public officer in the discharge of his duty, while the above section is limited to executive officers. Manss v. Superior Court, 25 Cal. App. 533, 535, 144 Pac. 298. Resisting officers: See, generally, post, § 148. California Jurisprudence: See article Obstructing Justice. Legislation § 69. Enacted February 14, 1872; based on Field's Draft, §§ 100, 101, N. Y. Pen. Code, §§ 46, 47; Crimes and Punishment Act, Stats. 1850, p. 242, § 107. § 70. Extortion. Every executive or ministerial officer who knowingly asks or receives any emolument, gratuity, or reward, or any promise thereof, excepting such as may be authorized by law, for doing any official act, is guilty of a misdemeanor. [Amendment approved 1874; Code Amdts. 1873-74, p. 423.] The act of March 14, 1853, in relation to extortion in office, is constitutional. Ryan v. Johnson, 5 Cal. 86. Extortion by judicial officer: See post, § 94. Extortion by public officer, punishment of: See post, § 521. California Jurisprudence: See article Extortion, vol. 12, p. 373. Legislation § 70. 1. Enacted February 14, 1872; based on Field's Draft, § 102, N. Y. Pen. Code, §§ 556, 557; Crimes and Punishment Act, Stats. 1850, p. 242, § 107. 2. Amended by Code Amdts. 1873-74, p. 423, adding (1) "or min. isterial" before "officer," and (2) "knowingly" before "asks." § 71. Violation of laws prohibiting certain officers from dealing in scrip, etc., and from being interested in contracts. Every officer or person prohibited by the laws of this state from making or being interested in contracts, or from becoming a vendor or purchaser at sales, or from purchasing scrip, or other evidences of indebtedness, who violates any of the provisions of such laws, is punishable by a fine of not more than one thousand dollars, or by imprisonment in the state prison not more than five years, and is forever disqualified from holding any office in this state. California Jurisprudence: See articles Public Officers; Executions, vol. 11, p. 74. Legislation § 71. Enacted February 14, 1872; based on Stats. 1851, p. 522; Stats. 1852, pp. 64, 65. § 72. Fraudulently presenting bills or claims to public officers for allowance or payment. Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, town, city, ward, or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of felony. According to § 957, post, the word "genuine" as used in the above section must be construed according to its usual acceptance in common language. As so used it means true, real, correct, as distinguished from false, fictitious, spurious or simulated. People v. Lanterman, 9 Cal. App. 674, 677, 100 Pac. 720. California Jurisprudence: See article False Pretenses. A. L. R. Note: Presentation of and attempt to establish fraudu lent claim against governmental agency, note 21 A. L. R. 180. Legislation § 72. Enacted February 14, 1872; based on Field's Draft, § 732, N. Y. Pen. Code, § 672. § 73. Buying appointments to office. Every person who gives or offers any gratuity or reward, in consideration that he or any other person shall be appointed to any public office, or shall be permitted to exercise or discharge the duties thereof, is guilty of a misdemeanor. Constitutional provision. Every person shall be disqualified from holding any office of profit in this state who shall have been con victed of having given or offered a bribe to procure his election or appointment: Const., art. xx, § 10. California Jurisprudence: See article Bribery, vol. 4, p. 491. Legislation § 73. Enacted February 14, 1872; based on Field's Draft, § 106, N. Y. Pen. Code, § 52; Crimes and Punishment Act, Stats. 1850, p. 239, § 85. § 74. Taking rewards for deputation. Every public officer who, for any gratuity or reward, appoints another person to a public office, or permits another person to exercise or discharge any of the duties of his office, is punishable by a fine not exceeding five thousand dollars, and, in addition thereto, forfeits his office and is forever disqualified from holding any office in this state. California Jurisprudence: See article Public Officers. Legislation § 74. Enacted February 14, 1872; based on Field's Draft, § 108, N. Y. Pen. Code, § 53; Crimes and Punishment Act, Stats. 1850, p. 239, § 85. § 74a. Retaining part of salary. Every officer of this state, or of any county, city and county, city, or township therein, who accepts, keeps, retains or diverts for his own. use or the use of any other person any part of the salary or fees allowed by law to his deputy, clerk, or other subordinate officer, is guilty of a felony. Officer receiving wages or salary of laborer or clerk: See post, 72. Fraudulently Presenting Bills or Claims to Public Officers for Allowance or Payment. Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, town, city, [district,] ward or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of a felony. (In effect 90 days from and after April 29, 1927. Stats. 1927, Chap. 467.) Pen. Code, 1927. added after retains. ́ ́* The section given by the code commissioner as the basis of the addition reads: "Sec. 2. Every officer of the state or any county, city, or township therein, who keeps or retains any part or portion of the salary or fees allowed by law to his deputy, clerk, or subordinate officer, is guilty of a felony.” $75. Exercising functions of office wrongfully. Every person who willfully and knowingly intrudes himself into any public office to which he has not been elected or appointed, and every person who, having been an executive officer, willfully exercises any of the functions of his office. after his term has expired, and a successor has been elected or appointed and has qualified, is guilty of a misdemeanor. California Jurisprudence: See article Public Officers. Legislation § 75. Enacted February 14, 1872; based on Field's Draft, 8110, N. Y. Pen. Code, § 56; Crimes and Punishment Act, Stats. 1850, p. 242, § 105. § 76. Refusal to surrender books, etc., to successor. Every officer whose office is abolished by law, or who, after the expiration of the time for which he may be appointed or elected, or after he has resigned or been legally removed from office, willfully and unlawfully withholds or detains from his successor, or other person entitled thereto, the records, papers, documents, or other writings appertaining or belonging to his office, or mutilates, destroys or takes away the same, or willfully and unlawfully withholds or detains from his successor, or other person entitled thereto, any money or property in his custody as such officer, is punishable by imprisonment in the state prison not less than one nor more than ten years. [Amendment approved 1905; Stats. 1905, p. 646.] Mutilating, destroying, or taking away of books, maps, etc. See post, §§ 113, 114, California Jurisprudence: See article Public Officers. Legislation § 76. 1. Enacted February 14, 1872; based on Crimes and Punishment Act, Stats. 1850, p. 240, § 89, which read: "If any officer whose office shall be abolished by law, or who, after the expiration of the time for which he may be appointed or elected, or after he shall have resigned or been legally removed from office, shall willfully and unlawfully withhold or detain from his successor, or other person entitled thereto by law, the records, papers, documents, or other writing appertaining or belonging to his office, or mutilate, destroy, or take away the same, the person so offending shall, on conviction, be punished by imprisonment in the state prison for a term not less than one year nor more than ten years. The provisions of this section shall apply to any person or persons who shall have such records, documents, papers, or other writings in his, her, or their possession, and shall willfully mutilate, destroy, withhold, or detain the same as aforesaid." 2. Amendment by Stats. 1901, p. 442; unconstitutional. See note, § 5, ante. 3. Amended by Stats. 1905, p. 646, (1) changing "writing" to "writings" before "appertaining"; (2) adding "or willfully and unlawfully withholds or detains from his successor, or other person entitled thereto, any money or property in his custody as such officer"; the code commissioner saying of the addition, "The old section made it punishable only for an officer to retain writings or records appertaining or belonging to his office, but did not extend to the manifestly graver offense above noted." § 77. Preceding sections to apply to administrative and ministerial officers. The various provisions of this chapter apply to administrative and ministerial officers, in the same manner as if they were mentioned therein. California Jurisprudence: See article Public Officers. Legislation § 77. Enacted February 14, 1872; based on Field's Draft, § 112, N. Y. Pen. Code, § 58. |