THE PENAL CODE

OF

THE STATE 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.

SECTION 1. Title and Divisions of this Code.

1. This Act shall be known as THE PENAL CODE OF CALIFORNIA, and is divided into Three Parts, as follows:

Part I.-OF CRIMES AND PUNISHMENTS.

Part II.-OF CRIMINAL PRocedure.

Part III.-OF THE STATE PRISON AND COUNTY JAILS.

PRELIMINARY PROVISIONS.

SECTION 2. When this Act takes effect.

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. Words, what included in definition.

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

punish for contempts.

12. Of sections declaring crimes punishable. Duty of Court.

13. Punishments, how determined.

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

15. "Crime" and "public offense" defined.

16. Crimes, how divided.

SECTION 17. Felony and misdemeanor defined.

18. Punishment of felony, when not otherwise prescribed.

19. Punishment of misdemeanor, when not otherwise prescribed. 20. To constitute crime there must be unity of act and intent.

21. Intent, how manifested, and who considered of sound mind.

22. Drunkenness no excuse for crime. When it may be considered. 23. Certain statutes specified as continuing in force.

24. This Act, how cited.

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

1. Applies to what. This section only applies to this code as originally passed. The date of the approval, and taking effect of the different amendments thereto, will be found at the end of each section amended or added.

3. No part of it is retroactive, unless expressly so declared. 1. Constitutional Prohibition.-The enactment of ex post facto laws is expressly forbidden by the federal constitution. Art. 1, secs. 9, 10. And by the constitution of California. Art. 1, sec. 16. A like provision is found in the constitutions of the several states.

2. Ex Post Facto Laws, What are.—Justice Chase thus defines ex post facto laws:

"1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

"2. Every law that aggravates a crime, or makes it greater than when committed.

"3. Every law which changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed.

"4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender." Calder v. Bull, 3 Dall. 390. The expression "ex post facto" is technical, and is applied exclusively to penal statutes. Id. Such a law is one which punishes for an act not punishable when committed. Cummings v. Missouri, 4 Wall. 326. Or imposes additional punishment. Id. Or changes the rules of evidence so that less or different testimony is sufficient to convict. Id. Or which changes the punishment after conviction. Hartung v. The People, 22 N. Y. 106. Or changes the kind and character of punishment which attached to the offense when it was committed. Shepherd v. The People, 25 Id. 415; Hartung v. The People, 26 Id. 169.

But it has been held that a statute which makes the breach of a pre-existing contract criminal, though not so prior to the passage of the act, is constitutional, though the soundness of this decision may well be doubted. Blann v. State, 39 Ala. 353.

3. Laws not Ex Post Facto.-Laws creating new tribunals, or conferring new jurisdiction, or enlarging or diminishing the powers of existing courts, are not ex post facto. State v. Sullivan, 14 Rich. 281; Com. v. Phillips, 11 Pick. 28. Nor are laws changing the place of trial. Gut v. The State, 9 Wall. 35. Nor laws changing criminal procedure. People v. Mortimer, 46 Cal. 114; Walston v. Com., 16 B. Mon. 15; Perry v. Com., 3 Gratt. 632. A

law which provides that one convicted of a second offense shall receive greater punishment than for a first offense, is not ex post facto, even when applied to the case of one who committed the first offense prior to the enactment of the law. Ex parte Gutierrez, 45' Cal. 429; People v. Stanley, 47 Id. 113; Ross' case, 2 Pick. 165; Rand v. Com., 9 Gratt. 738.

4. Rule of Construction.-A law will not be so construed as to give it a retroactive operation, unless it is clearly apparent that such was the intention of the legislature. Gates v. Salmon, 28 Cal. 320; Von Schmidt v. Huntington, 1 Id. 55; Hibernia S. & L. Society v. Jordan, 6 Pac. C. L. J., 686.

5. Corresponding Sections.-The same section is found in each of the other three codes.

4. 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.

1. Construction of this Code.-By this section the common law rule, that all penal statutes are to be strictly construed, and never extended by implication, has been abrogated in this state, and one adopted more likely to give effect to the provisions of this code and promote justice. Ex parte Gutierrez, 45 Cal. 431; People v. Soto, 49 Id. 68; People v. West, Id. 610; People v. Tisdale, 6 Pac. C. L. J. 727. "The established rule of the common law undoubtedly was, that statutes of the character of the one now under consideration should receive a strict construction in favor of him upon whom a penalty was to be inflicted; but this rule has been abrogated by the code, which has constituted itself in this respect its own interpreter." Ex parte Gutierrez, supra; see People v. Tisdale, 6 Pac. C. L. J. 727.

This rule of strict construction was not limited to statutes that were penal in their nature, but it extended to all statutes in derogation of the common law; and the uniform rule in this state, prior to the adoption of this section, was, that all such statutes, penal or otherwise, should be strictly construed, and limited in their operations to the strict letter of the law. Hotaling v. Cronise, 2 Cal. 60; People v. Buster, 11 Id. 221; Turner v. Tuolumne Co. Water Co., 25 Id. 400; Pina v. Peck, 31 Id. 362. The object of the legisla ture in passing this section was to do away with this rule of statutory construction and to adopt a more liberal one in its stead, with the view of furnishing the courts with a rule of procedure more conformable to the purposes of justice. Statutes, however, in affirmance of the common law, are to be construed as was the rule by that law. Baker v. Baker, 13 Cal. 95.

In the construction and interpretation of all laws, resort is frequently had to the title of the act for assistance in arriving at the true meaning thereof. It can not be used for the purpose of restraining or controlling any positive provision, but in cases of doubt it is often resorted to as a means of ascertaining the intent of the legislature, and when considered with other parts of the law, may materially aid in removing ambiguities therein. Flynn v. Abbott, 16 Cal. 365; State v. Conkling, 19 Id. 512; People v. San Francisco, 36 Id. 602; Matter of Boston M. & M. Co., 51 Id. 624; Weed v. Maynard, 52 Id. 459; Harris v. Sup. of S. F., Id. 554; see Hagar v. Sup. of Yolo County, 47 Id. 232. The Codes of California, divided, as they are, into titles, chapters, and sections, and the subject-matter of each chapter being designated ly

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head-notes, more consideration is due to the latter, in the construction of the several chapters and sections, than is generally given to the title of an act. In considering this question, the following views were expressed by the supreme court of this state: "The practice act is divided into titles, chapters, and sections; the head of each chapter in the several titles is a note indicating generally the subjects to which the chapter is devoted. While the rule is well settled, that the title of an act will not control the language in the body of the statute, but may be referred to as tending to explain the intention when the language is doubtful, we are of opinion that these headnotes, indicating the particular subjects treated of in the several chapters, are entitled to more consideration than the title to the entire act. The revised statutes of New York (passed as one act) were also divided into titles, chapters, and sections, with similar head-notes to the chapters; and in discussing the effect to be given to these head-notes, the supreme court of that state say: 'The inscription to chapter five is not in any sense a title to a statute. It forms a part of the body of the act quite as much as the section cited, and it was inserted for the purpose of controlling and limiting the scope and application of the general words used in the chapter.' People v. Molineux, 53 Barb. 15. On appeal to the court of appeals, this ruling was approved and affirmed. [40 N. Y. 113.] If the head-note of the chapter is to be consulted in the interpretation of section two hundred and fifty-one, it becomes apparent that it was intended to apply to willful trespasses only." Barnes v. Jones, 51 Cal. 306; see State v. Vowels, 4 Ore. 326.

When the codes were adopted by the legislature at its session of 1871–2, certain rules were incorporated in the Political Code, establishing the effect of the different codes, and providing the manner in which they were to be construed. "If the provisions of any law passed at the present session of the legislature contravene or are inconsistent with the provisions of either of the four codes, the provisions of such law must prevail." Political Code, sec. 4479. "With relation to each other, the provisions of the four codes must be construed (except as in the next two sections provided) as though all such codes had been passed at the same moment of time, and were parts of the same statute." Id. 4480. "If the provisions of any title conflict with or contravene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject-matter of such title." Id. 4481. "If the provisions of any chapter conflict with or contravene the provisions of another chapter of the same title, the provisions of each chapter must prevail as to all matters and questions arising out of the subject-matter of such chapter." Id. 4482. "If the provisions of any article conflict with or contravene the provisions of another article of the same chapter, the provisions of each article must prevail as to all matters and questions arising out of the subjectmatter of such article." Id. 4483. "If conflicting provisions are found in different sections of the same chapter or article, the provisions of the sections last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article." Id. 4484; see also Code Civil Procedure, secs. 4 and 1858; Political Code, sec. 4, and Civil Code, sec. 4.

In Gonzales v. Wasson, 51 Cal. 295, it was held, that when the provisions of the different codes conflict with each other, such a construction must be given to them that all may, if possible, have effect. The provisions of the codes regulating judicial remedies, apply only to proceedings in the state courts, and not to proceedings in the federal courts. Majors v. Cowell, 51 Cal. 478.

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 enactments.

1. Rev. Laws of Mass., 1858, c. 182, sec. 9.

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.

1. Common Law Offenses Abolished.-Section four thousand four hundred and sixty-eight of the Political Code provides that the common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, is the rule of decision in all the courts of this state. The same provision was contained in the statutes prior to the adoption of the codes. Stats. 1850, 219. The above section of the Penal Code, however, when read with section four, would seem to substantially exclude the common law as a rule of decision on all questions relating to crimes or criminal procedure in this state, so that no act or omission is now punishable in this state unless expressly made so by the provisions of this code, or of some existing statute.

2. Construction. The provisions of this section have no reference to the forms of criminal procedure. People v. Mortimer, 46 Cal. 114.

7. 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; writing includes printing; 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 can not write, his name being written near it, and witnessed by a person who writes his own name as a witness. The following words, also, have in this code the signification attached to them in this section, unless otherwise apparent from the context:

One-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.