jurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or due administration of the laws, they shali, on conviction, be punished by imprisonment in the county jail not more than one year, or by a fine not exceeding one thousand dollars." When enacted in 1872, § 182 differed from the amendment of 1873-74 (the present section), having (1) the word "or" at end of subds. 1, 2, and 3; (2) after subd. 3 the section reading, "4. To cheat and defraud any person of any property by any means which are in themselves criminal, or by any means which, if executed, would amount to a cheat, or to obtaining money or property by false pretenses; or, 5. To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the 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." 2. Amended by Code Amdts. 1873-74, p. 426, and then read: "If two or more persons conspire: "One. To commit any crime; "Two. Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime; "Three. Falsely to move or maintain any suit, action, or proceeding; "Four. 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, "Five. 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." 3. Amended by Stats. 1919, p. 170, (1) by adding the words "with fraudulent intent not to perform such promises" to subd. 4; (2) by recasting the portion of the section relating to punish ment. § 183. No other conspiracies punishable criminally. No conspiracies, other than those enumerated in the preceding section, are punishable criminally. California Jurisprudence: See article Conspiracy, vol. 5, p. 493. Legislation § 183. Enacted February 14, 1872 (N. Y. Pen. Code, § 170); based on Crimes and Punishment Act, Stats. 1850, p. 242, § 103. § 184. Overt act necessary. Place of trial. No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done. [Amendment approved May 5, 1919; Stats. 1919, p. 170.] California Jurisprudence: See article Conspiracy, vol. 5, p. 498. Legislation § 184. 1. Enacted February 14, 1872, and then read: "No agreement, except to commit a felony upon the person of another, 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 agree. ment." The section was based on Field's Draft, § 226, N. Y. Pen. Code, 171; Crimes and Punishment Act, Stats. 1850, p. 242, § 104. 2. Amended by Stats. 1919, p. 170, by recasting the section. § 185. Wearing mask or disguise. 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: One. Evading or escaping discovery, recognition, or identification in the commission of any public offense. Two. 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. California Jurisprudence: See article Masks and Disguises. A. L. R. Note: What amounts to disguise within criminal law, note 1 A. L. R. 642. Legislation § 185. Added by Code Amdts. 1873-74, p. 426. See Stats. 1923, ch. 153, p. 316. VI. Assaults With Intent to Commit Felony, Other Than Assaults With Intent to Murder. §§ 220-222. VII. Duels and Challenges. §§ 225-232. § 193. Punishment of manslaughter. § 194. Deceased must die within a year and a day. § 195. Excusable homicide. § 196. Justifiable homicide by public officers. §197. Justifiable homicide by other persons. §198. Bare fear not to justify killing. § 199. Justifiable and excusable homicide not punishable. Code commissioners' note to Chapter I. "Sections 32 and 41 of the Crimes and Punishment Act of 1850 properly belong in the Criminal Practice Act, and the commission have so placed them." § 187. Murder defined. Murder is the unlawful killing of a human being, with malice aforethought. Burden of proof in prosecution for murder: See post, § 1105. Dying declarations, admissibility of: See Code Civ. Proc., § 1870, subd. 4. California Jurisprudence: See article Homicide. A. L. R. Notes: Homicide by wanton or reckless use of firearms without express intent to inflict injury, notes 5 A. L. R. 603; 23 A. L. R. 1554. Legislation § 187. Enacted February 14, 1872. The code commissioners say: "The original section [of the Crimes and Punishment Act] reads as follows: 'Murder is the unlawful killing of a human being, with malice aforethought, [[either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned.']] [The code commissioners, in their note, italicized the words inclosed in double brackets.] (Stats. 1850, p. 231, § 19.) 'Express or implied'-these words are omitted, for they are included within the term 'malice,' and by the next section it is declared that malice, which is the ingredient of murder, may be expressed or implied. The sentence italicized is omitted, because it is surplusage. Every unlawful killing with malice aforethought being murder, it follows that any such killing effected by any means is murder." § 188. Malice defined. 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 fellowcreature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. An instruction as to malice giving the general definition of that word in the language of subdivision 4 of § 7, ante, followed by a special definition of the same word as applied to the crime of murder in § 188, is not misleading, confusing or injurious. People v. Dice, 120 Cal. 189, 190, 52 Pac. 477. This section, and not subdivision 4 of §7 of this code, defines the malice which is essential to constitute the crime of murder, but there is no prejudicial error in giving both definitions. People v. Harris, 169 Cal. 53; People v. Dice, 120 Cal. 189; People v. Wright, 93 Cal. 564; People v. Waysman, 1 Cal. App. 246. The malice essential to constitute murder is not the malice defined by subdivision 4 of § 7, ante, but is that defined by the above section. People v. Harris, 169 Cal. 53, 65, 145 Pac. 520. In People v. Waysman, 1 Cal. App. 246, where a defendant was prosecuted for murder, Chipman, P. J., said (p. 248): "We do not think that the definition found in § 7 appropriate in a case of this kind and would be better omitted altogether." Malice, express or implied: See ante, § 7, subd. 4. California Jurisprudence: See article Homicide. A. L. R. Notes: Homicide as affected by humanitarian motives, note 25 A. L. R. 1007. Inference of intent to kill where killing is by blow without weapon, notes 15 A. L. R. 675; 24 A. L. R. 666. Homicide by unlawful act aimed at another, note 18 A. L. R. 917. Legislation § 188. Enacted February 14, 1872; based on Crimes and Punishment Act, Stats. 1850, p. 231, § 20, and part of § 21 of the same act as amended by Stats. 1856, p. 219. § 189. Degrees of murder. 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 1874; Code Amdts. 1873-74, p. 427.] Indictment: See post, § 959. Burden of proving justification or excuse: See post, § 1105. A. L. R. Notes: Homicide by companion of defendant while attempting to escape from scene of crime as murder in first degree, note 22 A. L. R. 850. Wife's confession of adultery as affecting degree of homicide in killing her paramour, note 10 A. L. R. 470. Drunkenness as affecting existence of elements essential to murder in second degree, note 8 A. L. R. 1052. Legislation § 189. 1. Enacted February 14, 1872 (based on Crimes and Punishment Act, Stats. 1850, p. 231, § 21, as amended by Stats. 1856, p. 219), and then read as at present, down to the word "robbery," thereafter proceeding, "or burglary, is murder of the first degree; and all other kinds of murder are of the second degree." 2. Amended by Code Amdts. 1873-74, p. 427. § 190. Penalty for murder. Persons under eighteen years. Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same; or, upon a plea of guilty, the court shall determine the same; and every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years; provided, however, that the death penalty shall not be imposed or inflicted upon any person for murder committed before such person shall have reached the age of eighteen years; provided, further, that the burden of proof as to the age of said person shall be upon the defendant. [Amendment approved May 13, 1921; Stats. 1921, p. 98.] Death penalty, how executed. Whenever, in a proper case, the judgment of the court directs the death of the defendant, the punishment in this state is inflicted, "by hanging the defendant by the neck until he is dead": Post, §§ 1228, 1229. Imprisonment for life: See post, § 671. California Jurisprudence: See article Homicide. Legislation § 190. 1. Enacted February 14, 1872 (based on Crimes and Punishment Act, Stats. 1850, p. 231, § 21), and then read: "Every person guilty of murder in the first degree shall suffer death, and every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years." 2. Amended by Code Amdts. 1873-74, p. 457, and then read: "Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same; or, upon a plea of guilty, the court shall determine the same; and every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years." 3. Amended by Stats. 1921, p. 98, by adding the proviso. § 191. Petit treason abolished. The rules of the common law distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this chapter. California Jurisprudence: See articles Homicide; Treason. Legislation § 191. 1. Enacted February 14, 1872; based on Field's Draft, § 239, N. Y. Pen. Code, § 182; also based on Crimes and Punishment Act, Stats. 1850, p. 233 $39, which read: “§ 39. The dis |