united with a felonious intent on the part of him who does the act, or caused it to be done.

"Second. That the act of voting more than once at the same election was a crime, even though not done with knowledge on the part of him who so votes that he was voting the second time.

“Third. That the case before the jury was not one in which the defendant could show that by reason of his intoxicated condition, he did not know what he was doing when he voted the second time.

"We do not see how these charges involving the question of felonious knowledge or intention can be harmonized. The second and third stand in direct antagonism to the first, and the greater prominence was given to the one of which the defendant complains, and which we think to be erroneous. We are of the opinion the court erred also in excluding from the jury any consideration of the mental status of the defendant, by reason of his intoxicated condition when he voted the second time."

23. Nothing in this code affects any of the provisions of the following statutes, but such statutes are recognized as continuing in force, notwithstanding the provisions of the codes, except so far as they have been repealed or affected by subsequent laws:

1. All acts incorporating or chartering municipal corporations, and acts amending or supplementing such acts.

2. All acts consolidating cities and counties, and acts amending or supplementing such acts.

3. All acts for funding the state debt, or any part thereof, and for issuing state bonds, and acts amending or supplementing such acts.

4. All acts regulating and in relation to rodeos.

5. All acts in relation to judges of the plains.

6. All acts creating or regulating boards of water commissioners and overseers in the several townships or counties of

the state.

7. All acts in relation to a branch state prison.

8. An act for the more effectual prevention of cruelty to animals, approved March thirtieth, eighteen hundred and sixtyeight.

9. An act for the suppression of Chinese houses of ill-fame, approved March thirty-first, eighteen hundred and sixty-six.

10. An act relating to the home of the inebriate of San Francisco, and to prescribe the powers and duties of the board of managers and the officers thereof, approved April first, eighteen hundred and seventy.

11. An act concerning marks and brands in the county of Siskiyou, approved March twentieth, eighteen hundred and sixty-six.

12. An act to prevent the destruction of fish in the waters of Bolinas bay, in Marin county, approved March thirty-first, eighteen hundred and sixty-six.

13. An act concerning trout in Siskiyou county, approved April second, eighteen hundred and sixty-six.

14. An act to prevent the destruction of fish in Napa river and Sonoma creek, approved January twenty-ninth, eighteen hundred and sixty-eight.

15. An act to prevent the destruction of fish and game in, upon, and around the waters of Lake Merritt or Peralta, in the county of Alameda, approved March eighteenth, eighteen hundred and seventy.

16. An act to regulate salmon fisheries in Eel river, in Humboldt county, approved April eighteenth, eighteen hundred and fifty-nine.

17. An act for the better protection of stock raisers in the counties of Fresno, Tulare, Monterey, and Mariposa, approved March twentieth, eighteen hundred and sixty-six.

18. An act concerning oysters, approved April twenty-eighth, eighteen hundred and fifty-one.

19. An act concerning oyster beds, approved April second, eighteen hundred and sixty-six.

20. An act concerning gas companies, approved April fourth, eighteen hundred and seventy.

24. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as THE PENAL CODE, adding, when necessary, the number of the section.

1. This Act, How Cited. The constitution nowhere uses the word "code," but speaks of the way in which an "act" may be revised or amended. Art. IV, sec. 24. In Earle v. Board of Education, 55 Cal. 489, it was in effect said by Justice McKinstry, in his concurring opinion, that the proper title of what is commonly known as "The Political Code," is, "An act to establish a Political Code,"

2

PART I.

OF CRIMES AND PUNISHMENTS.

TITLE I.

OF PERSONS LIABLE TO PUNISHMENT FOR CRIME. SECTION 26. Who are capable of committing crimes.

27. Who are liable to punishment.

26. All persons are capable of committing crimes except those belonging to the following classes:

1. Children under the age of fourteen, in the absence of clear proof that at the time of committing the act charged against them they knew its wrongfulness;

2. Idiots;

3. Lunatics and insane persons;

4. Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent;

5. Persons who committed the act charged without being conscious thereof;

6. Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence;

7. Married women (except for felonies) acting under the threats, command, or coercion of their husbands;

8. Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to, and did believe their lives would be endangered if they refused. [Amendment, approved March 30, 1874; in effect July 1, 1874.

1. Subdivision 1-Infants.-The period of life at which a capacity for crime commences is not susceptible of being established by an exact rule which shall operate justly in every possible case. 1 Bish. Crim. L., sec. 368. At the common law a child under seven years of age was conclusively presumed incapable of committing any crime. 4 Bl. Com. 22; 3 Chit. Crim. L. 724; People v. Townsend, 3 Hill (N. Y.), 479; Willet v. Com., 13 Bush (Ky.),

230; Marsh v. Loader, 14 C. B. N. S. 535; 1 Whart. Crim. L. (8th ed.), sec. 68; 1 Bish. Crim. L., sec. 368. During the interval between seven and fourteen, the law presumes an infant to be destitute of criminal design; but this presumption diminishes as the age increases, and even during this interval of youth, may be repelled by evidence of a vicious and wrong intention. Godfrey v. State, 31 Ala. 323; State v. Learnard, 41 Vt. 585; State v. Guild, 5 Halst. 163; 18 Am. Dec. 404; Commonwealth v. Mead, 10 Allen, 398; People v. Davis, 1 Wheel. C. C. 230; People v. Teller, Id. 231; State v. Goin, 9 Humph. 174; Rex v. Owen, 4 Car. & P. 236; Rex v. Groombridge, 7 Id. 582. Tenderness of years will not excuse a maturity in crime. The power of contracting guilt is measured rather by the strength of the delinquent's understanding than by days and years. 3 Chit. Crim. L. 724. The question to be determined is, was there a guilty knowledge of wrong-doing. The capacity for crime in persons above the age of seven years is always a question of fact for the determination of the jury.

From observation and experience, the law assumes, prima facie, that persons over fourteen years of age are capable of crime, but allows this presumption to be controlled by proof of the real fact. During the intermediate period, from seven to fourteen, which is called by Blackstone "the dubious stage of discretion," the law makes no presumption in reference to capacity to commit crime, but leaves it to be determined by the jury upon the evidence. 1 Whart. Crim. L. (8th ed.), sec. 58; 1 Bish. Crim. L. 368.

The presumption of law in favor of infants under fourteen, and the necessity of satisfying the jury that the child, when committing the act, must have known that he was doing wrong, is well illustrated by the case of R. v. Owen, 4 Car. & P. 236, where a girl ten years of age was indicted for stealing coals. It was proved that she was standing by a large heap of coals belonging to the prosecutor, and that she had a basket upon her head containing a few coals which the girl herself said she had taken from the heap. Littledale, J., in summing up to the jury, remarked: "In this case, there are two questions: First, did the prisoner take the coals? and second, if she did, had she at the time a guilty knowledge that she was doing wrong? The prisoner is only ten years of age, and unless you are satisfied by the evidence that, in committing this offense, she knew that she was doing wrong, you ought to acquit her. Whenever a person committing a felony is under fourteen years of age, the presumption of law is that he or she has not sufficient capacity to know that it is wrong, and such person ought not to be convicted, unless there be evidence to satisfy the jury that the party, at the time of the offense, had a guilty knowledge that he or she was doing wrong." The jury returned a verdict of "Not guilty," adding: "We do not think the prisoner had any guilty knowledge." So in People v. Davis, 1 Wheel. C. C. 230, in an indictment for larceny, the defendant being not yet fourteen years old by a few weeks. The taking was clearly proved, but no evidence was offered of his capacity to commit crime, and the jury was instructed that the law presumes an infant under fourteen incapable of committing crimes, "and in order to show his liability, it was necessary to prove his capacity;" and there being no evidence either way upon the point, the defendant was acquitted. This doctrine was again distinctly affirmed in The Queen v. Smith, 1 Cox C. C. 260. In Willet v. Com., 13 Bush, 230, it was held that

a sense of moral guilt only on the part of an infant twelve years of age, in the absence of a knowledge of his legal responsibility for his wrongful act, will not authorize a conviction.

2. Confessions 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 v. Wild, 2 Moo. 452; Rex v. Upchurch, 1 Moo. C. C. 465; Mather v. Clark, 2 Aik. 209; Commonwealth v. Zard, cited Ros. Crim. Ev. 31, note; State v. Bostick, 4 Harr. 563. This question seems to have received more consideration in this country than in England. Thus in the State v. Aaron, 1 South. 231, 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, and corroborated by circumstances, and made understandingly. One of the most striking criminal trials to be found on record was that of The State v. Guild, 5 Halst. 163; 18 Am. Dec. 404. There the prisoner, aged twelve years and five months, was indicted for the murder of Catherine 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.

By section 1880, C. C. P., subd. 2, children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, are not entitled to be witnesses. See People v. Bernal, 10 Cal. 66.

3. Subdivision 2-Idiots. --See n. 4.

4. Subdivision 3-Insanity.-Definition and Classifications. This word, in modern times, has been used to designate all mental impairments and deficiencies, and includes in it the terms lunacy, idiocy, and unsoundness of mind. The common law originally recognized but two kinds of insanity, idiocy, and lunacy, the subjects of which were designated by the term non compotes mentis, which was used as a generic term. In addition to this old division, the modern cases often employ a classification originating with Esquirol, and which, as restated by Dr. Hammond, is substantially as follows: Melancholia.-Perversion of the understanding in regard to an object or a small number of objects, with the predominance of sadness and depression of mind. Monomania.-Perversion of understanding limited to a single object, or a small class of objects, with predominance of mental excitement. Mania. A condition in which the perversion of understanding embraces all kinds of objects, and is attended with mental excitement. Dementia.-A condition in which those affected are incapable of reasoning, from the fact that the organs of thought have lost their energy, and the force necessary for performing their functions. Imbecility or Idiocy.-A condition in which the organs have never been sufficiently well conformed to permit those affected to reason correctly.