c. 29, sec. 26; 1 Whart. Crim. L. (8th ed.), sec. 241; Wren's case, 26 Gratt. 956. Merely permitting a felon to escape is not sufficient to impute guilt to the party so doing. 1 Hale, 619. So if a person agree for money not to prosecute the felon; or if knowing of a felony, fails to make it known to the proper authorities, he will not be punishable as an accessory after the fact. Wren's case, 26 Gratt. 957; 1 Whart. Crim. L. (8th ed.), sec. 242. Neither will a person who receives stolen property, and aids in the disposition of it, knowing it to be stolen, be chargeable as such. People v. Stakem, 40 Cal 599. "The true test whether one is accessory after the fact, is to consider whether what he did was done by way of personal help to his principal, with the view of enabling his principal to elude punishment; the kind of help appearing to be unimportant." I Bish. Crim. L. (6th ed.), sec. 695. At the common law, the conviction of one who has committed the crime must precede that of one charged as accessory. The record of conviction of the principal was prima facie evidence of his guilt against a person charged as accessory, but he might show that the principal was not guilty. 1 Arch. Crim. Pl. and Pr. 78. By statute, however, in most of the states, the offense of an accessory is made substantive and independent, and the accessory may, under such statutes, be tried independently of the principal, though in such cases the guilt of the principal must be alleged and proved. Pettes v. Com., 126 Mass. 242; State v. Cassady, 12 Kan. 550; 1 Whart. Crim. L. (8th ed.), sec. 237. In this state, it is provided by statute that an accessory to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted. Sec. 972. See People v. Newberry, 20 Cal. 439; People v. Bearss, 10 Id. 68. It said that he may be indicted and tried with the principal or separately. Id.; People v. Campbell, 40 Id. 129. The indictment must allege that the crime of the principal was committed before it was found and presented. People v. Thrall, 50 Id. 415. 33. Except in cases where a different punishment 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. 37. Treason against this state consists only in levying war against it, adhering to its enemies, or giving them aid and com fort, and can be committed only by persons owing allegiance to the state. The punishment of treason shall be death. 1. Treason against the state shall consist only in levying war against it, adhering to its enemies, or giving them aid and comfort. No person shall be convicted of treason unless on the evidence of two witnesses to the same overt act or confession in open court. Constitution of California, sec. 20, art. 1. See also U. S. Constitution, sec. 3, art. 3; C. C. P., sec. 1968. To constitute the specific crime of treason by levying war, war must be actually levied. Conspiracy to subvert by force the government is not treason. To conspire to levy war and actually to levy war are distinct offenses. Ex parte Bollinau, 4 Cranch, 75. To constitute a levying of war, there must be an assemblage of people, with force and arms, to overthrow the government, or resist the laws. United States v. Greathouse, 2 Abb. U. S. 364. The term enemies applies only to the subjects of a foreign power in open hostility with us, and does not embrace rebels in insurrection against their own government. Id. That two witnesses are required, refers to the proof on the trial, not to proceedings on preliminary examination, or before a grand jury. 2 Wall. jun. 138. Other decisions are: Druecker v. Salomon, 21 Wis. 621; United States v. Mitchell, 2 Dall. (Pa.) 348; United States v. Hoxie, 1 Paine, 265; United States v. Fries, 2 Whart. St. Tr. 482; United States v. Wiltberger, 5 Wheat. 76; United States v. Burr, 4 Cranch, 470; United States v. Pryor, 3 Wash. C. C. 234; People v. Lynch, 11 Johns. 549. 38. Misprision of treason is the knowledge and concealment of treason, without otherwise assenting to or participating in the crime. It is punishable by imprisonment in the state prison for a term not exceeding five years. TITLE IV. OF CRIMES AGAINST THE ELECTIVE FRANCHISE. SECTION 41. Violation of election laws by certain officers a felony. 42. Fraudulent registration a felony. 43. Refusal to be sworn by or to answer questions of board of judges of election a misdemeanor. 44. Refusal to obey summons of board of registration a mis demeanor. 45. Voting without being qualified, voting twice, and other election frauds, felonies. 46. Attempting to vote without being qualified. 47. Procuring illegal voting a misdemeanor. 48. Changing ballots or altering returns by election officers, fel onies. 49. Inspectors unfolding or marking tickets guilty of a mis demeanor. SECTION 50. Forging or altering returns a felony. 51. Adding to or subtracting from votes given a felony. 52. Persons aiding and abetting or concealing guilty of felony. 54. Furnishing money for elections except for specified purposes. 56. Communicating such offer. 57. Bribing or offering to bribe members of legislative caucuses, etc. 58. Preventing public meetings. 59. Disturbance of public meetings, misdemeanor. 60. Betting on elections. 61. Violation of election laws by persons not officers. 62. Printing or circulating tickets not in conformity with the elec tion laws. 41. Every person charged with the performance of any duty, under the provisions of any law of this state relating to elections, who willfully neglects or refuses to perform it, or who, in his official capacity, knowingly and fraudulently acts in contravention or violation of any of the provisions of such laws, is, unless a different punishment for such acts or omissions is prescribed by this code, punishable by fine not exceeding one thousand dollars, or by imprisonment in the state prison not exceeding five years, or by both. 1. Corrupt Motive Necessary.-If a presiding officer at an election, acting honestly from the best judgment he can form, take a vote which turns out to be an illegal one, he is not liable. But if such officer, knowing a vote to be illegal, takes it corruptly, his position can not protect him from the just punishment of his offense. State v. McDonald, 4 Harr. 555. 42. Every person who willfully causes, procures, or allows himself to be registered in the great register of any county, knowing himself not to be entitled to such registration, is punishable by fine not exceeding one thousand dollars, or by imprisonment in the county jail or state prison not exceeding one year, or by both. In all cases where, on the trial of a person charged with any offense under the provisions of this section, it appears in evidence that the accused stands registered in the great register of any county, without being qualified for such registration, the court must order such registration to be canceled. 43. Every person who, after being required by the board of judges at any election, refuses to be sworn, or, being sworn, refuses to answer any pertinent question, propounded by such board, touching the right of another to vote, is guilty of a mis demeanor. [Amendment, approved March 30, 1874; in effect July 1, 1874. 44. Every person summoned to appear and testify before any board of registration, who willfully disobeys such summons, is guilty of a misdemeanor. 45. Every person not entitled to vote,, who fraudulently votes, and every person who votes more than once at any one election, or knowingly hands in two or more tickets folded together, or changes any ballot after the same has been deposited in the ballot-box, or adds, or attempts to add, any ballot to those legally polled at any election, either by fraudulently introducing the same into the ballot-box before or after the ballots therein have been counted, or adds to or mixes with, or attempts to add to or mix with, the ballots lawfully polled, other ballots, while the same are being counted or canvassed, or at any other time, with intent to change the result of such election; or carries away or destroys, or attempts to carry away or destroy, any poll list, or ballots, or ballot-box, for the purpose of breaking up or invalidating such election, or willfully detains, mutilates, or destroys any election returns, or in any manner so interferes with the officers holding such election or conducting such canvass, or with the voters lawfully exercising their rights of voting at such election, as to prevent such election or canvass from being fairly held and lawfully conducted, is guilty of felony. 1. Not Entitled to Vote.-A minor can not be convicted of illegal voting if he honestly believed that he was twenty-one years of age when he voted. Carter v. State, 55 Ala. 181; Gordon v. State, 52 Id. 308. But ignorance of the law is no defense. Where a female voted, under the belief that the constitution gave her the right, when in fact it did not, it was held no defense, that she believed she had a right to vote, and voted in reliance on that belief. United States v. Anthony, 11 Blatchf. C. C. 200. If, however, one states the facts to the election judges, and they decide in favor of his right to vote, their decision would rebut the presumption of guilty knowledge on his part, that he had no such right. State v. Boyett, 10 Ired. 336. 2. Voting Twice. The act of voting more than once at the same election is not a crime, unless it is done knowingly and with wrong intent. People v. Harris, 29 Cal. 678. See note of this case under section 22. 46. Every person not entitled to vote, who fraudulently attempts to vote, or who, being entitled to vote, attempts to vote more than once at any election, is guilty of a misdemeanor. 47. Every person who procures, aids, assists, counsels, or advises another to give or offer his vote at any election, knowing that the person is not qualified to vote, is guilty of a misde meanor. 48. Every officer or clerk of election who aids in changing or destroying any poll list or in placing any ballots in the ballot-box, or taking any therefrom, or adds, or attempts to add, any ballots to those legally polled at such election, either by fraudulently introducing the same into the ballot-box before or after the ballots therein have been counted, or adds to or mixes with, or attempts to add to or mix with the ballots polled, any other ballots, while the same are being counted or canvassed, or at any other time, with intent to change the result of such election, or allows another to do so, when in his power to prevent it, or carries away or destroys, or knowingly allows another to carry away or destroy any poll list, ballot-box, or ballots lawfully polled, is punishable by imprisonment in the state prison for not less than two nor more than seven years. 49. Every inspector, judge, or clerk of an election, who, previous to putting the ballot of an elector in the ballot-box, attempts to find out any name on such ballot, or who opens or suffers the folded ballot of any elector which has been handed in to be opened or examined previous to putting the same into the ballot-box, or who makes or places any mark or device on any folded ballot with the view to ascertain the name of any person for whom the elector has voted, or who, without the consent of the elector, discloses the name of any person which such inspector, judge, or clerk has fraudulently or illegally discovered to have been voted for by such elector, is punishable by fine, not less than fifty nor more than five hundred dollars. 50. Every person who forges or counterfeits returns of an election, purporting to have been held at a precinct, town, or ward where no election was in fact held, or willfully substitutes forged or counterfeit returns of election in the place of the true returns, for a precinct, town, or ward where an election was actually held, is punishable by imprisonment in the state prison for a term not less than two nor more than ten years. 1. Fraudulent Intent.To warrant the conviction of an election inspector for making a false certificate of the result of the election, it must appear that such certificate was made by him fraudently, and the fact that a fraud upon the ballot box was committed by some unknown person, no agency of the inspector being shown, is not sufficient to warrant a conviction. United States v. Hayden, 52 How. Pr. 471. 51. Every person who willfully adds to or subtracts from the votes actually cast at an election, in any returns, or who alters such returns, is punishable by imprisonment in the state prison for not less than one nor more than five years. |