Arson of the second degree. Punishment of arson. human being, is arson in the first degree. All other kinds of arson are of the second degree. NOTE.-Stats. 1856, p. 132, Secs. 4, 5; similar to N. Y., Sec. 532. Taken in connection with the definition of "building," and "inhabited," given in Secs. 448 and 449, ante, this section would embrace as arson in the first degree the burning of a ship or vessel while lying within this State, if committed in the night-time, for it is an offense of as grave a character as burning an inhabited dwelling. 455. Arson is punishable by imprisonment in the State Prison, as follows: 1. Arson in the first degree, for not less than two years. 2. Arson in the second degree, for not less than one nor more than ten years. NOTE. This Chapter is founded upon Secs. 4, 5, and 6 of Act concerning crimes and punishments of 1856.— Stats. 1856, p. 132. The text omits the clause in Sec. 4 which provides that "should the lives of any persons be lost in consequence of such burning the offender shall be deemed guilty of murder, and shall be indicted and punished accordingly." This provision is surplusage, for the killing in that case is in the perpetration of arson, and falls within the definition of murder in the first degree.-See Sec. 189, ante. "Burglary" 459. (§ 58.) Every person who, in the night-time, defined. forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any house, room, apartment, or tenement, or any tent, ves sel, water craft, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary. NOTE.-Stats. 1858, p. 206. It was held to be necessary to charge the value of the goods intended to be stolen, in People vs. Murray, 8 Cal., p. 520. Between six and seven o'clock in the evening, on the 31st August, is not in the night-time.-People vs. Griffin, 19 Cal., p. 578. The People vs. Shaber, 32 Cal., p. 36, seems to be repugnant to the case of 8 Cal., first supra. This case was decided by Shafter, J., Sanderson, J., dissenting, on the ground that it is not sufficient to charge the offense generally with the intent to commit a larceny. The Case of People vs. Stickman, 34 Cal., p. 244, fully discusses "dwelling" and "house," and affirms a judgment of guilty in breaking into a chicken house and stealing chickens, holding the statute to include as a house "any structure which has walls on all sides and is covered by a roof." To charge the offense in the night-time is sufficient, without giving the hour, and if the hour is alleged, it is unnecessary to prove it.-People vs. Burgess, 35 Cal., p. 117; 2 East's Pleas of the Crown, p. 513; Wharton's A. C. L., Secs. 270, 271, 612. Ownership is correctly laid in one who exercises control of the whole house.-People vs. St. Clair, 38 Cal., p. 137. Larceny may not be included as part of the offense of burglary; it is the subject of a separate indictment under our system.People vs. Garnett, 29 Cal., p. 626. ment of 460. Burglary is punishable by imprisonment in Punishthe State Prison for not less than one nor more than burglary. fifteen years. NOTE.-By the Act of 1858 (Stats. 1858, p. 206), the crime of burglary was punishable by imprisonment in the State Prison for a term not less than one nor more than ten years, whilst grand larceny, a less heinous crime, might be punished with imprisonment in the State Prison for fourteen years.-Stats. 1856, p. 219, Sec. 7. The Code reduces the maximum punishment for larceny from fourteen years to ten years, and increases that of burglary from ten years to fifteen years. The Code makes no attempt to define the words "breaking" or "entering," but leaves the meanings of those words as now quite well settled by adjudication. For cases on the subject, see California cases cited in note to Sec. 459, "House breaking" defined. Punish ment of house breaking. ante, and also, Rex vs. Cornwall, 2 Stra., p. 880; Rex vs. Gray, 1 id., p. 481; Rex vs. Gibbons, Fost., p. 107; Rex vs. Hughes, Leach C. C., p. 452; Reg. vs. Davis, 6 Cox Cr. Cas., p. 367; Reg. vs. O'Brien, 4 id., p. 398; Reg. vs. Meal, 3 id., p. 70; Reg. vs. Wenmouth, 8 Cox Cr. Cas., p. 483; Reg. vs. Wheeldon, 8 Carr. & P., p. 747; Rex vs. Paine, 7 id., p. 135; Rex vs. Jordan, 7 id., p. 432; Reg. vs. Bird, 9 id., p. 44; Rex vs. Hughes, 1 Leach C. C., p. 406; 2 East P. C., p. 491; Rex vs. Lewis, 2 Carr. & P., p. 628; Rex vs. Brown, 2 East P. C., p. 487; 2 Leach C. C., p. 1016; Rex vs. Johnson, 2 East P. C., p. 488; Rex vs. Bailey, Russ. & R. C. C., p. 341; 2 Russ. C. & M., p. 12; 1 R. & M. C. C., p. 23; Rex vs. Perkes, 1 Carr. & P., p. 300; Rex vs. Lawrence, 4 Carr. & P., p. 231; Rex vs. Russell, 1 M. C. C. R., p. 377; State vs. McCall, 4 Ala., p. 643; State vs. Wilson, Coxe, p. 439; Commonwealth vs. Steward, 7 Dane's Ab., p. 136; Com. vs. Stephenson, 8 Pick., p. 354; People vs. Boujet, 2 Park. Cr. Rep., p. 11; Commonwealth vs. Trimmer, 1 Mass., p. 476; Finch's Case, 14 Gratt., p. 643; Guche's Case, 6 City Hall Rec., p. 1; Robertson's Case, 4 id., p. 63; Smith's Case, id., People vs. Tralick, Hill & D., p. 63; People vs. Bush, 3 Park. Cr., p. 552. p. 62; 461. (§ 127.) Every person who, in the day-time, enters any dwelling house, shop, warehouse, store, mill, barn, stable, outhouse, other building, vessel, or railroad car, with intent to steal or to commit any felony whatever therein, is guilty of housebreaking. 66 NOTE.-Stats. 1864, p. 104, Sec. 1; 28 Cal., p. 214. "Day-time" is from sunrise to sunset. See Sec. 463, post, for "night-time." It is error to charge a jury that if defendant was with one who did steal as charged in the indictment, and saw him steal without interference *** to prevent it, upon the defendant will devolve the labor of proving himself innocent."-People vs. Ah Ping, 27 Cal., p. 490. As to identity and matters of description in two Courts being obnoxious to the requirement that but one offense be charged, see People vs. Thompson, 28 Cal., p. 218. 462. Housebreaking is punishable by imprisonment in the State Prison for not less than one nor more than five years. NOTE.-Stats. 1864, p. 104, Sec. 1. "Night time" 463. The phrase "night-time," as used in this Chapter, means the period between sunset and sunrise. defined. NOTE.-Between six and seven o'clock in the even ing of August 31st is not night-time.-People vs. Griffin, CHAPTER III. HAVING POSSESSION OF BURGLARIOUS INSTRUMENTS AND SECTION 466. Having possession of any instrument with intent to 467. Having possession of deadly weapons with intent to 466. (§ 127.) Every person having upon him a picklock, crow key, bit, other instrument or tool, with intent feloniously to break or enter into any building, is guilty of a misdemeanor. 467. (§ 127.) Every person having upon him any deadly weapon with intent to assault another, is guilty of a misdemeanor. CHAPTER IV. FORGERY AND COUNTERFEITING. SECTION 470. Forgery of wills, conveyances, notes, bonds, etc. records and official returns. 471. Making false entries in records or returns. 472. Forgery of public and corporate seals. 473. Punishment of forgery. 474. Forging telegraphic messages. 475. Passing or receiving forged notes. 476. Making, passing, or uttering fictitious bills, etc. 477. Counterfeiting coin, bullion, etc. 478. Punishment of counterfeiting. SECTION 479. Possessing or receiving counterfeit coin, bullion, etc. 480. Making or possessing counterfeit dies or plates. 470. ($ 73.) Every person who, with intent to defraud another, falsely makes, alters, forges, or counbonds, etc. terfeits any charter, letters, patent, deed, lease, in Forgery of wills, convoyances, notes, Uttering forged notes, bonds, etc. denture, writing obligatory, will, testament, codicil, annuity, bond, covenant, bank bill or note, post note, check, draft, bill of exchange, contract, promissory note, due bill for the payment of money or property, receipt for money or property, passage ticket, power of attorney, or any certificate of any share, right, or interest in the stock of any corporation or association, or any Controller's warrant for the payment of money at the Treasury, county order or warrant, or request for the payment of money, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquittance, release, or receipt for money or goods, or any acquittance, release, or discharge for any debt, account, suit, action, demand, or other thing, real or personal, or any transfer or assurance of money, certificates of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft, order, or assignment of any bond, writing obligatory, or promissory note for money or other property, or counterfeits or forges the seal or handwriting of another; or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above named false, altered, forged, or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person; or who, . |