must be satisfied that he had a capacity of knowing good from evil; that this might be proved by extrinsic testimony, or it might arise from the circumstances of the case. Here a concealment and an attempt to escape appear. It was for the jury to say that the defendant knew that he was doing wrong. The defendant was convicted.

3. The liability of infants above the age of fourteen. Here all authorities agree that, with but a single class of exceptions, entire criminal responsibility commences, and the presumption of incompetency wholly ceases. Blackstone, on this point, says: "The law of England does in some cases privilege an infant under the age of twenty-one, as to common misdemeanor, so as to escape fine, imprisonment, and the like, and particularly in cases of omission, as not repairing a breach on highway, and other similar offenses; for, not having the command of his fortune till twenty-one, he wants the capacity to do these things which the law requires. But where there is any notorious breach of the peace, a riot, or a battery, or the like (which infants, when full grown, are at least as liable as others to commit), for these an infant above the age of fourteen is equally liable to suffer as a person of the full age of twenty-one years."-See, also, 1 Hale, P. C., pp. 20-22.

4. Confession of an infant. The question has been much discussed whether the confessions of an infant are admissible against him in proof of the commission of crime; and it has been sometimes thought that as in a civil case an infant is not bound by his admissions and declarations, so in a criminal case his declarations of his own guilt are not admissible; and if so, are not a sufficient proof of the commission of the crime. But this reasoning seems not to be supported, and it is well settled upon the authorities that the confessions of an infant, if otherwise competent, are admissible against him, in the same manner as confessions of adults.-Rex vs. Wild, 2 Moody, p. 452 (1835); R. vs. Upchurch, 1 ib., C. C., p. 465 (1835); Mather vs. Clark, 2 Aiken, p. 209 (Vermont, 1827); Commonwealth vs. Zard, cited, Ros. Cr. Ev., p. 31, note. This question seems to have received more consideration in this country than in England. Thus, in the State vs. Aaron, 1 Southard, p. 231 (New Jersey, 1818), a slave of the age of ten years and ten months was indicted for murder, and it was much discussed whether his confessions of the crime were admissible in evidence. It was held that they were admissible, but to furnish the grounds of a conviction they ought to be clear and pregnant

Who are liable to punish

ment.

and corroborated by circumstances, and understandingly. One of the most striking criminal trials to be found on record was that of The State vs. Guild, 5 Halsted, p. 163 (New Jersey, 1828). There the prisoner, aged twelve years and five months, was indicted for the murder of Catharine Beakes; his own confessions were the principal evidence, the corpus delicti being otherwise proved. The Court held this sufficient, and the boy was convicted and executed.

Subd. 2.-1 Wharton's Am. Cr. Law, Sec. 15. Subd. 3.-Collinson on Lunacy, p. 573; R. vs. Oxford, 9 C. & P., p. 533; Burrows' Case, 1 Lewin, p. 238; R. vs. Goode, 7 Ad. & El., p. 536; Hadfield's Case, 27 How. St. Tr., p. 1316; R. vs. Vaughan, 1 Cox C. C., p. 80; R. vs. Layton, Cox C. C., p. 185; Com. vs. Rogers, 7 Met., p. 500; Com. vs. Mosler, 4 Barr., p. 267; Freeman vs. People, 4 Denio, p. 10; State vs. Spencer, 1 Zabriskie, p. 196; 1 Wharton's Am. Cr. Law, Sec. 15; People vs. Coffman, 24 Cal., p. 230; People vs. March, 6 Cal., p. 543; People vs. Olwell, 28 Cal., p. 456; People vs. Smith, 31 Cal., p. 466. A person is presumed to be sane until the contrary appears. People vs. Myers, 20 Cal., p: 518.

Subd. 4.-Broom's Legal Maxims, p. 190; Myers vs. State, 1 Com., p. 502; Com. vs. Kirby, 2 Cush., p. 577; U. S. vs. Pearce, 2 McLean, p. 14. If a man intending to kill a thief in his own house kill one of his own family, he is guilty of no offense.-4 Bl. Com., p. 27; 1 Hale P. C., p. 42; 1 Wharton's Am. Cr. Law, Sec. 83. So a taking by accident or mistake another's property for one's own is not criminal.-Id.

Subd. 7.-Davis vs. State, 15 Ohio, p. 72; 1 Wharton's Am. Cr. Law, Sec. 71. If the husband is present at the time the crime is committed, the presumption is that the wife acted under his coercion.-1 Russel on Crimes, p. 21; State vs. Parkerson, 1 Strobhart, p. 169; Com. vs. Trimmer, 1 Mass., p. 476; R. vs. Stapleton, 1 Crawf. & Dix C. C., p. 163; R. vs. Matthew, 1 Den. C. C., p. 596; 1 Wharton's Am. Cr. Law, Sec. 73.

27. The following persons are liable to punishment under the laws of this State:

1. All persons who commit, in whole or in part, any crime within this State;

2. All who commit larceny or robbery out of this State, and bring to, or are found with the property stolen, in this State;

3. All who, being out of this State, cause or aid, advise or encourage, another person to commit a crime within this State, and are afterwards found therein.

common law principals were of the first and second
degrees. A principal of the first degree was one who
did the act himself, directly or by means of an inno-
cent agent. A principal of the second degree was one
who was present, lending his countenance and encour-
agement, or otherwise aiding while another did the act.
The distinction was only formal, having no practical use
or effect whatever, and in this State was abolished by
Sec. 11 of the Act concerning crimes and punish-
ments. People vs. Bearss, 10 Cal., p. 68. For the
Code definition of principals see Sec. 31.
"An acces-
sory before the fact," says Mr. Bishop (1 Bishop's Cr.
Law, p. 473), "is one whose will contributes to
another's felonious act, committed while too far him-
self from the act to be a principal. The legal distinc-
tion between the accessory before and the principal
rests solely in authority, for it is without foundation
either in reason or the ordinary doctrines of the law.
The general rule in our jurisprudence, civil and
criminal, is that what one does through another's agency
he does in point of law himself." The distinction
between principal and accessory before the fact is not
maintained by the Code.-See Sec. 31. An accessory
after the fact is one who receives, harbors, or other-
wise assists to elude justice, another whom he knows is

Classification of parties to crime.

Who are principals.

Who are

accessories.

Punishment of

guilty of felony.-4 Bl. Com., p. 37; 1 Bishop's Cr. Law, Sec. 487. There are no accessories after the fact in misdemeanors.-1 Bishop on Cr. Law, Sec. 499; see Code, Sec. 32.

31. (§§ 11, 12.) All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.

NOTE. This definition includes the principal of the first and second degree, and the accessory before the fact of the common law.-Foster's Cr. Law, p. 340; 1 East P. C., p. 118; 9 Pick., p. 496; People vs. Hodges, 27 Cal., p. 340; People vs. Davidson, 5 Cal., p. 133; People vs. Bearss, 10 Cal., p. 68; see note to Sec. 30. 32. (§ 12.) All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are accessories.

NOTE. The distinction between principals and accessories before the fact having been abolished (People vs. Bearss, 10 Cal., p. 68), it was not deemed advisable to retain the phrase "after the fact," in this section. The only accessory recognized by the Code being the accessory after the fact, as known to the common law.-See note to Sec. 30.

33. (§ 12.) Except in cases where a different punaccessories. ishment is prescribed, an accessory is punishable by imprisonment in the State Prison not exceeding five years, or in a County Jail not exceeding two years, or by fine not exceeding five thousand dollars.

TITLE III.

OF OFFENSES AGAINST THE SOVEREIGNTY OF THE

STATE.

SECTION 37. Treason, who only can commit,

38. Misprision of treason.

who only

37. (§§ 16, 17.) Treason against this State consists Treason, only in levying war against it, adhering to its enemies, can commit or giving them aid and comfort, and can be committed only by persons owing allegiance to the State. The punishment of treason shall be death.

NOTE.-Const., Art. I, Sec. 20. Levying war.-To constitute treason war must be actually levied against the State. However flagitious may be the crime of conspiracy to subvert by force the government of a State, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are two distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has the principle been carried that it has been held that the actual enlistment of men to serve against the Government does not amount to levying war. There must be an actual assembling of men for the treasonable purpose to constitute a levying of war.-Ex Parte Bollman, 4 Cranch, p. 126; United States vs. Burr, 4 Cranch, p. 469; Serg. on Const., p. 32; People vs. Lynch, 1 Johns., p. 553. Adhering to enemies.— Every assistance yielded by a person owing allegiance to a State to its enemies, unless given from a well grounded apprehension of immediate death in case of a refusal, is treason within this branch of the statute.Foster's Cr. Law, p. 216; 1 Hawkins P. C., p. 8; Rex vs. Vaughan, 2 Salk., p. 635; U. S. vs. Hodges, 2 Dallas, p. 87; 2 Wheeler's C. C., p. 477; Respublica vs. McCarty, 2 Dallas, p. 87. Owing allegiance to the State.-As to, see Political Code, Sec. 55. Treason against the United States is not cognizable in a State Court.-People vs. Lynch, 11 Johnson, p. 549; see U. S. Const. annotated, App. Pol. Code Cal.

of treason

38. (§ 18.) isprision of treason is the knowl- Misprisica edge and concealment of treason, without otherwise assenting to or participating in the crime. It is pun