juror may have voted on a matter before them, is guilty of a misdemeanor.

170. Every person who maliciously and without probable cause procures a search warrant or warrant of arrest to be issued and executed, is guilty of a misdemeanor.

171. Every person, not authorized by law, who, without the consent of the warden, or other officer in charge of the state prison, communicates with any convict therein, or brings into or conveys out of the state prison any letter or writing to or from any convict, is guilty of a misdemeanor.

172. Every person who, within two miles of the land belonging to this state, upon which the state prison is situated, or within one mile of the insane asylum at Napa, or within one mile of the grounds belonging and adjacent to the university of California, in Alameda county, or in the state capitol, or within the limits of the grounds adjacent and belonging thereto, sells, gives away, or exposes for sale any vinous or alcoholic liquors, is guilty of a misdemeanor. [Amendment, approved April 3, 1876; in effect immediately.

173. Every captain, master of a vessel, or other person, who willfully imports, brings, or sends, or causes or procures to be brought or sent, into this state, any person who is a foreign convict of any crime which, if committed within this state, would be punishable therein (treason and misprision of treason excepted), or who is delivered or sent to him from any prison or place of confinement in any place without this state, is guilty of a misdemeanor.

174. Every person bringing to or landing within this state any person born either in the empire of China or Japan, or the islands adjacent to the empire of China, without first presenting to the commissioner of immigration evidence satisfactory to such commissioner that such person desires voluntarily to come into this state and is a person of good character, and obtaining from such commissioner a permit describing such person and authorizing the landing, is punishable by a fine of not less than one nor more than five thousand dollars, or by imprisonment in the county jail not less than two nor more than twelve months.

175. Every individual person of the classes referred to in the two preceding sections, brought to or landed within this state contrary to the provisions of such sections, renders the person bringing or landing liable to a separate prosecution and penalty.

176. Every willful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.

177. When an act or omission is declared by a statute to be a public offense, and no penalty for the offense is prescribed in any statute, the act or omission is punishable as a misdemeanor. [Amendment, approved March 30, 1874; in effect July 1, 1874.

178. Any officer, director, manager, member, stockholder, clerk, agent, servant, attorney, employee, assignee, or contractor of any corporation now existing, or hereafter formed under the laws of this state, who shall employ in any manner or capacity, upon any work or business of such corporation, any Chinese or Mongolian, is guilty of a misdemeanor, and is punishable by a fine of not less than one hundred, nor more than one thousand dollars, or by imprisonment in the county jail of not less than fifty nor more than five hundred days, or by both such fine and imprisonment; provided, that no director of a corporation shall be deemed guilty under this section who refuses to assent to such employment, and has such dissent recorded in the minutes of the board of directors.

1. Every person who, having been convicted for violating the provisions of this section, commits any subsequent violation thereof, after such conviction, is punishable as follows:

2. For each subsequent conviction, such person shall be fined not less than five hundred, nor more than five thousand dollars, or by imprisonment not less than two hundred and fifty days nor more than two years, or by both such fine and imprisonment. [New section, approved February 13, 1880; in effect immediately.

1. In Conflict with Chinese Treaty.-See sec. 179, n.

179. Any corporation now existing or hereafter formed under the laws of this state, that shall employ, directly or indirectly, in any capacity, any Chinese or Mongolian, shall be guilty of a misdemeanor, and upon conviction thereof shall, for the first offense, be fined not less than five hundred nor more than five thousand dollars, and upon the second conviction shall, in addition to said penalty, forfeit its charter and franchise, and all its corporate rights and privileges, and it shall be the duty of the attorney-general to take the necessary steps to enforce such forfeiture. [New section, approved February 13, 1880; in effect immediately.

1. In Conflict with Chinese Treaty.-The last two sections were enacted by the legislature for the purpose of giving effect to section two of article nineteen of the constitution of California. This section of the constitution, and the two sections mentioned, were held, In re Tiburcio Parrot, 5 Pac. C. L. J., supplement, by the circuit court of the United States, to be in conflict with the treaty of the United States with China (16 Stat. 7401), and therefore void.

SECTION 182. Criminal conspiracy defined and punishment fixed. 183. No other conspiracies punishable criminally.

184. Overt act, when necessary.

185. Wearing mask or disguise, when unlawful.

182. If two or more persons conspire: 1. To commit any crime;

2. Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime; 3. Falsely to move or maintain any suit, action, or proceeding;

4. To cheat and defraud any person of any property by any means which are in themselves criminal, or to obtain money or property by false pretenses; or,

5. To commit any act injurious to the public health, to public morals, or for the perversion or obstruction of justice or due administration of the laws;

They are punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or both. [Amendment, approved March 30, 1874; in effect July 1, 1874.

1. Indictable Conspiracy has been defined to be a confederation by two or more persons to commit an indictable offense; or by deceit or falsehood or other fraudulent means to defraud the public generally, or a particular individual, though in a way which might not expose a single person to indictment if the fraud was undertaken by him alone. 2 Whart. Crim. L. (8th ed.), sec. 1337. Any definition of what constitutes conspiracy is necessarily somewhat uncertain and general. At common law, the list of acts which were considered conspiracies is quite extensive. Thus, a confederation to commit a felony, or a misdemeanor, or to cheat, or defraud, to personate another, to marry under a feigned name, to injure a man in his trade or profession, to charge a man as the reputed father of a bastard, to manufacture spurious goods with intent to sell them as genuine, to file a fraudulent bond, to extort a deed by means of a peace warrant, to sell fraudulent railroad tickets, to act in fraud of bankrupt or insolvency laws, to violate lottery laws, to commit assault or any breach of the peace, to falsely imprison, to excite sedition, etc., have each been held to constitute an indictable conspiracy. But a conspiracy to commit a mere civil trespass, as to kill game,

is not indictable. For a full discussion of the law on this subject, see 2 Whart. Crim. L. (8th ed.), secs. 1337, 1406. See sec. 1104.

2. Indictment for Conspiracy.-Sec. 1104, n. 2.

3. Evidence of Conspiracy.-Sec. 1104, n. 3.

183. No conspiracies, other than those enumerated in the preceding section, are punishable criminally.

184. No agreement, except to commit a felony upon the person of another, or to commit arson, or burglary, amounts to a conspiracy, unless some act, beside such agreement, be done to effect the object thereof, by one or more of the parties to such agreement.

1. The Common Law Rule is changed by this section, for by the common law the conspiracy was complete when the confederacy was made, and any act done in pursuance of the confederacy is simply an aggravation of the offense. Com. v. Judd, 2 Mass. 329; Rex v. Edwards, 8 Mod. 320; Rex v. The Journeymen Tailors, Id. 11; Rex v. Robinson, 1 Leach C. C. (4th ed.) 37. 185. It shall be unlawful for any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of:

1. Evading or escaping discovery, recognition, or identification in the commission of any public offense;

2. Concealment, flight, or escape, when charged with, arrested for, or convicted of, any public offense. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor. [New section, approved March 30, 1874; in effect July 1, 1874.

TITLE VIII.

OF CRIMES AGAINST THE PERSON.

CHAPTER I. HOMICIDE, §§187-199.

II. MAYHEM, §§203-204.

III. KIDNAPING, §§207-208.

IV. ROBBERY, §§211-213.

V. ATTEMPTS TO KILL, §§216-217.

VI. ASSAULTS WITH INTENT TO COMMIT FELONY, OTHER THAN

ASSAULTS WITH INTENT TO MURDER, §§220-222.

VII. DUELS AND CHALLENGES, §§225-232.

VIII. FALSE IMPRISONMENT, §§236–237.

IX. ASSAULT AND BATTERY, §§240-245.

X. LIBEL, §§248–257.

192. Manslaughter defined. Voluntary and involuntary manslaughter.

193. Punishment of manslaughter.

194. Deceased must die within a year and a day.

195. Excusable homicide.

196. Justifiable homicide by public officers.

197. Justifiable homicide by other persons.

198. Bare fear not to justify killing.

199. Justifiable and excusable homicide not punishable.

187. Murder is the unlawful killing of a human being with malice aforethought.

1. Murder is the killing of any person under the king's peace, with malice prepense or aforethought, either express or implied by law. 1 Russ. on Crimes, 421. Or as defined by Sir Edward Coke, the offense is committed "when a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied." 3 Inst. 47. This definition is accepted by Blackstone, 4 Com. 196. This definition has, however, been severely criticised. Livingston, Pen Law, 186. Another definition is, that the crime consists in "the willful killing of any subject whatsoever, through malice aforethought." 1 Hawk. P. C., sec. 3. But "a better definition," says a learned writer on criminal law, "is the following: murder is any act committed from what the law deems a depraved mind, fully bent on evil, the result of which act is the death of a human being within a year and a day from the time of its commission." 2 Bish. Crim. L., sec. 652. The term "murder" has not two meanings, nor can it be construed in two different ways. It means simply, as it has always meant in this state, the unlawful killing of a human being with malice aforethought, either express or implied. People v. Haun, 44 Cal. 96. It is murder to kill a person, though he be already mortally wounded by another. People v. Ah Fat, 48 Cal. 61. If the wound be inflicted with felonious intent and death ensue from the effects of the wound at any time within a year and a day, it is murder. People v. Steventon, 9 Cal. 273. See sec. 194. A child in its mother's womb is not a "human being" within the meaning of that term as used to define murder. The rule is that the child must be born, and that every part of it must have come from the mother before the killing, otherwise it will not be murder. Rex v. Brain, 6 Car. & P. 349; Rex v. Crutchley, 7 Id. 814; Rex v. Poulton, 5 Id. 329.

2. Murder and Manslaughter.-Whether a homicide amounts to murder, or to manslaughter merely, does not depend upon the presence or absence of the intent to kill. In either case there may be a present intention to kill