When this Act takes. effect. Not retroactive. Construc tion of the SECTION 23. Certain statutes specified as continuing in force. 2. This Code takes effect at twelve o'clock, noon, on the first day of January, eighteen hundred and seventy-three. 3. No part of it is retroactive, unless expressly so declared. NOTE.-Von Schmidt vs. Huntington, 1 Cal., p. 55; Thorne vs. San Francisco, 4 Cal., p. 127; Gates vs. Salmon, 28 Cal., p. 320; Bensley vs. Ellis, 39 Cal., p. 309; Prince vs. United States, 2 Gall., p. 204; United States vs. Heth, 3 Cranch, p. 399; Harvey vs. Tyler, 2 Wall., p. 328; Holden vs. James, 11 Mass., p. 396; Lewis vs. Webb, 3 Greenl., p. 326; Dash vs. Van Kleek, 7 John., p. 474; Lewis vs. Brackenridge, 1 Black., p. 220; Smith's Commentaries, Sec. 533. 4. The rule of the common law, that penal statutes Penal Code 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. NOTE. It is a rule of law that penal statutes are to be strictly construed.-1 Bl. Com., p. 88; 1 Kent's Com., p. 467. Thus a statute, enacting that a person convicted of stealing horses should not have the benefit of clergy, was held not to extend to a person who stole but one horse.-1 Bl. Com., p. 88. And a statute which made the stealing of sheep or other cattle a felony without the benefit of clergy, was held to extend to nothing but sheep stealing, the words, "or other cattle," being looked upon as much too loose to create a capital offense.-Id. However sound may be the arguments in favor of this rule, when applied to ordinary Acts of the Legislature, it is apparent that it would be improper to apply it in all its severity to a system of laws intended, in a great measure, to take the place of the common law, and having in view, as its leading object, the furtherance of justice and a disregard of technical strictness. The provisions of such a system ought to be construed in the same manner, and with like force and effect, as they would be were the principles enunciated resting in the unwritten law, and it was to this end that a section of similar import has been made part of each of the Codes.-See Civil Code, Provisions existing similar to 5. 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 construed. enactments. NOTE.-Rev. Laws of Mass., 1858, Chap. 182, Sec. 9. The Political Code (Sec. 18) contains a general provision that the repeal of existing statutes shall not revive any law heretofore repealed or suspended, nor any office heretofore abolished, and therefore such a provision has not been incorporated herein. 6. 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. NOTE. ABOLITION OF COMMON LAW OFFENSES.Sec. 143 of the Crimes and Punishment Act of eighteen hundred and fifty (Stats. 1850, p. 229), as amended March thirty-first, eighteen hundred and sixty-six (Stats. 1866, p. 468), among other things declares that "every act or offense not defined by statute which is a misdemeanor at common law, is a misdemeanor in this State." This amendment added to the confusion already existing in our criminal laws, so that at the time of the adoption of this Code an examination of more than six thousand statutes, and the whole body of the common law, was necessary before it could be determined what acts or omissions were penal. Every one is presumed to know the law; yet, under the system then existing in this State, such knowledge was as unattainable by the masses as it would have been were the laws "written in small character upon high pillars." It may well be doubted whether a State has the moral right to hold the citizen responsible for an act or laws, how Effect of past Code upon offenses. omission, not evil within itself, which act or omission it is impossible for the citizen to know is prohibited by law. At least, it is clearly the duty of the State to give to every citizen ready means by which a knowledge of the penal laws may be attained. To this end, under the Title of "Crimes and Punishments," has been brought every act or omission made punishable. The difficulties encountered may be illustrated by the following instances: The revenue laws contain more than fifty penal clauses; the election laws more than thirty; the corporation laws more than twenty; and at least seven out of ten of the general Acts contain provisions of a penal character. Through all these various Acts the Commissioners extended their examination, drew from them their penal clauses and inserted them-pruned of redundant and contradictory matter-in the Penal Code, under appropriate subdivisions. EFFECT OF THE CODE UPON ANTERIOR OFFENSES.In so far as this Code declares acts criminal which heretofore have not been so regarded, or increases the severity, or changes the kind of punishment inflicted for a crime defined by our former laws, the familiar provision of the Federal Constitution prohibiting ex post facto laws, forbids that it be made applicable to acts committed before it takes effect.-U. S. Const., Art. 1, Sec. 10, Subd. 1; Calder vs. Bull, 3 Dall., p. 386; Fletcher vs. Peck, 6 Cr., pp. 87, 188. In so far as it diminishes the severity of the punishment by prescribing a less amount or duration of penalty of the same kind with that inflicted under the former law, there may be no constitutional reason to prevent its being made applicable to all offenses, irrespective of the date of commission.-Hartung vs. People, 22 N. Y., p. 95; Commonwealth vs. Mott, 21 Pick., p. 492; Keene vs. State, 3 Chandl., p. 109. Ameliorations of punishment introduced by statute are often expressly extended to prior offenses. No natural right arises, however, in behalf of an offender to claim the benefit of a subsequent statute mitigating the penalty for offenses like his own, though clemency readily awards it to him. Convenience and simplicity in the administration of penal justice should control upon this point. The Commissioners were of opinion that any attempt by general words to render such mitigations of punishment as are introduced by the Code, applicable to antecedent offenses, is calculated to raise nice and embarrassing questions as to whether a given modification is a mitigation or not. They observe that it has been 7. 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 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 terms "neglect," "negligence," 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 term "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, some other person. or to Same. 4. The terms "malice" and "maliciously " import a wish to vex, annoy, or injure another person; established either by proof or presumption of law. 5. The term "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 term "bribe" signifies any money, goods, right in action, property, thing 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 and steamships, canal boats, and every structure adapted to be navigated from place to place. 8. The term "peace officer" signifies any one of the officers mentioned in section eight hundred and seventeen of this Code. 9. The term "magistrate" signifies any one of the officers mentioned in section eight hundred and eight of this Code. 10. The term "signature" includes any name, mark, or sign written with intent to authenticate any instrument or writing. 11. The term "writing" includes both printing and writing. 12. The term "land" and the phrases "real estate" and "real property," include lands, tenements, and hereditaments, and all rights thereto and interest therein. 13. The term "personal property" includes every description of money, goods, chattels, effects, evidences of rights in action, and all written instruments |