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THE

PENAL CODE

OF

CALIFORNIA.

AN ACT

TO ESTABLISH A PENAL CODE.
[Approved February 14, 1872.]

The People of the State of California, represented in Senate and Assembly, do enact as follows:

TITLE OF THE ACT.

§ 1. Title and divisions of this act.

§1. Title and divisions of this act. This act shall be known as The Penal Code of California, and is divided into three parts, as follows:

I. Of Crimes and Punishments.

II. Of Criminal Procedure.

III. Of the State Prison and County Jails.

This act, how cited: Post, § 24.

Construction of the codes, and of their various sections: See Pol. Code, §§ 4478 et seq.

Legislation § 1. Enacted February 14, 1872.

THE PENAL CODE OF CALIFORNIA.

PRELIMINARY PROVISIONS.

2. When this act takes effec..

3. Not retroactive.

4. Construction of the Penal Code.

5. Provisions similar to existing laws, how construed.

6. Effect of code upon past offenses.

§ 7. Certain terms defined in the senses in which they are used in

this code.

8. What intent to defraud is sufficient.

9. Civil remedies preserved.

10. Proceedings to impeach or remove officers and others preserved. 11. Authority of courts-martial preserved. Courts of justice to pun

ish for contempts.

(3)

$12. § 13.

§ 14.

§ 15. § 16.

§ 17. § 18.

$ 19.

Of sections declaring crimes punishable. Duty of court.
Punishments, how determined.

Witness's testimony may be read against him on prosecution for
perjury.

"Crime" and "public offense" defined.
Crimes, how divided.

Felony and misdemeanor defined.

Punishment of felony, when not otherwise prescribed.
Punishment of misdemeanor, when not otherwise prescribed.
To constitute crime there must be unity of act and intent.
Intent, how manifested, and who considered of sound mind.
Drunkenness no excuse for crime. When it may be considered.
Certain statutes specified as continuing in force.

$ 20.

$ 21. § 22. § 23.

§ 24. This act, how cited.

§ 2.

When this act takes effect. This code takes effect at twelve o'clock, noon, on the first day of January, eighteen hundred and seventy-three.

Effect of codes generally: See Pol. Code, §§ 4478 et seq.
Legislation § 2. Enacted February 14, 1872.

§ 3. Not retroactive. No part of it is retroactive, unless expressly so declared.

Impairing vested rights: See Code Civ. Proc., § 8.

Corresponding sections. The same section is found in each of the other three codes: See Code Civ. Proc., § 3; Civ. Code, § 3; Pol. Code, § 3.

Legislation § 3. Enacted February 14, 1872.

§ 4.

Construction of the Penal Code. The rule of the common law, that penal statutes are to be strictly construed, has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.

Rules of construction of code provisions generally: See Pol. Code, §§ 4478 et seq.

Statutes in derogation of common law: See Code Civ. Proc., § 4; Civ. Code, § 4; Pol. Code, § 4.

Legislation § 4. Enacted February 14, 1872; identical with Field's Draft, § 10, N. Y. Pen. Code, § 11.

§ 5. Provisions similar to existing laws, how construed. The provisions of this code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.

Legislation § 5. 1. Enacted February 14, 1872; based on Mass. Rev. Laws 1858, c. clxxxii, § 9.

2. Amended by Stats. 1901, p. 433, and amendment held unconstitutional, in Lewis v. Dunne, 134 Cal. 291; Mr. Justice McFarland saying, "The said act . . . is unconstitutional, and void for all purposes, and is inoperative to change or in any way affect the law of the state as it stood immediately before the approval of said act. . . . The act covers one hundred and fifty pages of the published statutes

of 1901; it amends over four hundred sections; it repeals nearly one hundred sections; it changes the numbers of other sections; it adds a great many new sections; and it contains this clause, 'Certain title and chapter headings . ... are hereby inserted, changed, and amended,' and then follow several pages of insertions, changes, and amendments of such headings. . . . We are forced to the conclusion that this act is a revision, and void for want of re-enactment and publication at large of the revised law." Thus the attempted repeals or attempted amendments of the Penal Code as embodied in the act of the legislature of 1901 were declared unconstitutional and void. This act was the result of an act approved March 25, 1895 (Stats. 1895, p. 345), whereby the legislature created and established "a commission for revising, systematizing, and reforming the laws of this state," and provided that "said commission, to be known as "The Commissioners for the Revision and Reform of the Law,' ,'" should be appointed by the governor. This commission was duly appointed, and thereafter filed with the secretary of state a report recommending, among other things, a revision of the Penal Code, and the legislature (Stats. 1901, p. 117) embodied their recommendations in the act declared "unconstitutional, and void for all purposes."

§ 6. Effect of code upon past offenses. No act or omission, commenced after twelve o'clock noon of the day on which this code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this code, or by some of the statutes, which it specifies as continuing in force and as not affected by its provisions, or by some ordinance, municipal, county, or township regulation, passed or adopted, under such statutes and in force when this code takes effect. Any act or omission commenced prior to that time may be inquired of, prosecuted, and punished in the same manner as if this code had not been passed.

Effect on past offenses. Where, by subsequent statute, the punishment is increased, it is ex post facto, and inoperative: U. S. Const., art. i, § 10, subd. 1.

Legislation § 6. Enacted February 14, 1872.

§ 7. Certain terms defined in the senses in which they are used in this code. Words used in this code in the present tense include the future as well as the present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word "person" includes a corporation as well as a natural person; the word "county" includes "city and county"; writing includes printing and typewriting; oath includes affirmation or declaration; and every mode of oral statement, under oath or affirmation, is embraced by the term "testify," and every written one in the term "depose"; signature or subscription includes mark, when the person cannot write, his name being written near it, by a

person who writes his own name as a witness; provided, that when a signature is made by mark it must, in order that the same may be acknowledged or serve as the signature to any sworn statement, be witnesed by two persons who must subscribe their own names as witnesses thereto.

The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context:

1. The word "willfully," when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission. referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage;

2. The words "neglect," "negligence," "negligent," and "negligently" import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns;

3. The word "corruptly" imports a wrongful design to acquire or cause some pecuniary or other advantage to the person guilty of the act or omission referred to, or to some other person;

4. The words "malice" and "maliciously" import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law;

5. The word "knowingly" imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such act or omission;

6. The word "bribe" signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his action, vote, or opinion, in any public or official capacity;

7. The word "vessel," when used with reference to shipping, includes ships of all kinds, steamboats, canal-boats, barges, and every structure adapted to be navigated from place to place for the transportation of merchandise or persons;

8. The words "peace officer" signify any one of the officers mentioned in section eight hundred and seventeen ;

9. The word "magistrate" signifies any one of the officers mentioned in section eight hundred and eight;

10. The word "property" includes both real and personal property;

11. The words "real property" are coextensive with lands, tenements, and hereditaments;

12. The words "personal property" include money, goods, chattels, things in action, and evidences of debt;

13. The word "month" means a calendar month, unless otherwise expressed; the word "daytime" means the period between sunrise and sunset, and the word "night-time" means the period between sunset and sunrise;

14. The word "will" includes codicil;

15. The word "writ" signifies an order or receipt in writing, issued in the name of the people, or of a court or judicial officer, and the word "process" a writ or summons issued in the course of judicial proceedings;

16. Words and phrases must be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning;

17. Words giving a joint authority to three or more public officers or other persons, are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority;

18. When the seal of a court or public officer is required by law be affixed to any paper, the word "seal" includes an impression of such seal upon the paper alone, or upon any substance attached to the paper capable of receiving a visible impression. The seal of a private person may be made in like manner, or by the scroll of a pen, or by writing the word "seal" against his name;

19. The word "state," when applied to the different parts of the United States, includes the District of Columbia and the territories, and the words "United States" may include the district and territories;

20. The word "section," whenever hereinafter employed, refers to a section of this code, unless some other code or statute is expressly mentioned. [Amendment approved

1905; Stats. 1905, p. 635.]

"Person" includes corporation: See post, § 599b.
"Oath” includes affirmation: See post, § 119.
"Night-time": See post, §§ 450, 463.

Legislation § 7. 1. Enacted February 14, 1872 (based on Mass. Rev. Laws 1858, c. iii, § 7; Iowa Rev. Laws 1860, c. iii, § 29; Field's Draft, §§ 762-781, N. Y. Pen. Code, § 718), and then read: "Whenever the terms mentioned in this section are employed in the Penal Code, they are employed in the senses hereafter affixed to them, except where a different sense plainly appears-1. The term 'willfully,' when applied to the intent with which an act is done or

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