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In district courts.

In county and probate courts.

heard, tried, and determined therein, in the same manner as if originally appealed to, brought, entered, prosecuted, or had, in such supreme court; and the clerk of the said supreme court shall perform the same duties and shall be entitled to receive the same fees and emoluments which are by law established for the clerk of the present supreme court. All such as shall on the first day of January next be depending and undetermined in the district courts of this State shall be and are hereby declared to be respectively transferred, continued to, and vested in the district courts of the several counties of this State established by the present constitution, and shall be heard, tried, and determined therein, in the same manner as if originally brought, entered, prosecuted, or had, in such district courts; and the respective clerks of the said district courts shall perform the same duties and shall be entitled to receive the same fees and emoluments which are by law established for the clerks of the present district courts. All such as shall on the first day of January next be depending and undetermined in the county and probate courts of this State, except the probate court of the City and County of San Francisco, shall be and are hereby declared to be respectively transferred, continued to, and vested in the county aud probate courts established by the present constitution, and shall be heard, tried, and determined therein, in the same manner as if originally brought, entered, prosecuted, or had, in such county and probate courts; and the respective clerks of the said courts shall perform the same duties and shall be entitled to receive the same fees and emoluments which are by law established for the clerks of the present county and probate courts. In probate court All such as shall on the first day of January next be depending and undetermined in the probate court of the County of San Francisco shall be and are hereby declared to be respectively transferred, continued to, and vested in the probate court of the City and County of San Francisco, established by an act entitled an act concerning the courts of justice of this State, and judicial officers, approved April twentieth, one thousand eight hundred and sixty-three, and shall be heard, tried, and determined therein in the same manner as if originally brought, prosecuted, or had, in such probate court, established as aforesaid; and the clerk of said court shall perform the same duties and shall be entitled to receive the same fees and emoluments which are by law established for the clerk of the present probate court of the County of San Francisco. All such as shall on the first day of January next be depending and undetermined in the recorders' and other inferior municipal courts of this State, shall be and are hereby declared to be respectively transferred, continued to, and vested in the recorders' and other inferior courts established by an act concerning the courts of justice of this State, and judicial officers, approved April twentieth, one thousand eight hundred and sixty-three, and shall be heard, tried, and determined therein in the same manner as if originally brought, prosecuted, or had, in such recorders' and inferior courts; and no bailbond, or bond of any kind, or recognizance, taken in any action, suit, prosecution, proceeding, or cause, transferred to any or either of the courts mentioned in this act, shall thereby be avoided, impaired, or invalidated.

of San Francisco County.

In recorders courts.

In justices'

courts.

1397. SEC. 2. In all actions, suits, prosecutions, causes, pleas, process, and proceedings, which might have been brought and could have been cognizable in the justices' courts in the several townships and cities of this State, established by an act entitled an act concerning the courts of justice of this State, and judicial officers, approved April twentieth, one thousand eight hundred and sixty-three, that are, on the first day of January next, pending and undetermined in the present justices' courts of the several townships and cities of this State, shall be and are hereby declared to be transferred, continued to, and vested in, the said justices' courts, established by the act aforesaid; and the said justices shall proceed to hear and determine such cases according to the course of proceedings in justices' courts. And all actions of forcible entry and detainer pending and undetermined in the said justices' courts, of the several townships and cities of this State on the said first day of January next, shall be and are hereby declared to be transferred to and vested in the county courts established Duties of justices by the present constitution; and it shall be the duty of the respective justices of the entry and

as to forcible

detainer cases.

several townships and cities of this State to transmit to the said county courts all papers filed in such actions, and a certified copy of all orders made therein, and then and thereafter said county court shall proceed to hear, try, and determine such action in all respects as if the same had been originally instituted in said county court, and in all appeals in said actions of forcible entry and detainer now pending in or hereafter appealed to said county court, which shall on the first day of January next be pending and undetermined therein, the same shall be heard, tried, and determined,

in all respects as if no appeal had been taken, and the same had been transferred ander and in conformity with the provisions of this act.

1398. SEO. 3. All proceedings in cases of insolvency, or arson, pending and undeter- Cases transferred mined in the district courts of the several counties of this State on the first day of Jan- to county cou uary next, shall be and the same are hereby declared to be transferred to the county courts of this State established by the present constitution; and it shall be the duty of the clerks of the said district courts to transmit to the said county courts all papers filed in such proceedings, and a certified copy of all orders made therein, and then and thereafter said county court shall proceed to hear and determine such cases as if said proceedings in insolvency or arson had been originally instituted and prosecuted in said county court.

dispute is less

1399. SEC. 4. In all cases which on the first day of January next shall be pending Cases when and undetermined in any district court, when the amount in dispute is less than three amount in hundred dollars, and of which a justice's court may have jurisdiction, said district than $800. court, on motion of either party, after due notice, shall, by an order entered on the minutes, transfer such cases to a proper justice's court for trial; and the clerk of said district court shall thereupon immediately transmit to said justice's court all papers filed in such cases, and a certified copy of all orders made therein; and then and thereafter said justice's court shall have full jurisdiction thereof, and shall proceed, upon at least two days' notice to the parties, to hear and determine such cases according to the course of proceeding in justices' courts, reserving to parties all rights in regard to changes of venue and other proceedings to which they would be entitled in cases originally commenced in justices' courts.

old returnable to

1400. SEC. 5. That all writs and process which have issued or may issue before Writs and pro the first day of January next, returnable to the said courts superseded as aforesaid, shall cess issued be be returned to the aforesaid courts established by the present constitution, and shall be new courts. proceeded on therein in the same manner as they could had they been originally returnable to the said courts established as aforesaid. And all cases which may have been appealed, or in which notice of appeal has been or shall have been given, before the first day of January next, though the transcripts may not have reached the appellate court before said day, shall, within the meaning of this act, be considered as pending and undetermined on the said first day of January next in the court to which they were to be appealed under the law and constitution as they have hitherto been in force, and shall be heard, tried, and determined, or disposed of, in conformity with the intention and provisions of this act; provided, that in all cases where the tran- Proviso. script may not, on the said first day of January next, have reached the appellate court, which, if such transcript had so reached such court, such appellate court would have no jurisdiction under the present constitution to hear, try, and determine the same, then, in such case, the last-mentioned provision, shall have no application, but all such cases shall be transferred or otherwise disposed of as provided by this act. 1401. SEC. 6. It is hereby declared to be the true intent and meaning of this act Act defined. that no suit, cause, or proceeding of any kind, civil or criminal, which may be pending and undetermined on the first day of January next in any or either of the courts of this State, shall by the change from the old to the new judicial system, as established by the present constitution, be abated, ended, terminated, or otherwise discontinued, but that the same shall in all respects be proceeded in as though no change nad taken place; and in all cases where by the present constitution a change of jurisdiction is made, the said courts are hereby clothed with full power and authority to make such disposition of all cases not otherwise provided for by this act as will best tend to carry into effect the intent and meaning as aforesaid expressed.

1402. SEC. 7. It shall be the duty of the secretary of State to deliver or send by Duty of secretary mail, forthwith, a printed copy of this act to every justice of the supreme court, and of State.

to every district judge, and a sufficient number of copies to every county clerk to supply one copy to the district attorney and to every judicial officer in the county. SEO. 8. This act shall take effect and be in force on and after the first day of January next.

An Act to provide for the suing and transfer of causes pending in the district court in and for the County of Contra Costa.

Approved April 4, 1864; 1863-4, 500.

1403. SECTION 1. The district court of the third judicial district, and the judge Saving of causes. thereof, shall continue to have and exercise jurisdiction in all cases, proceedings, and business that may arise or be pending in the district court in and for the County of

Transfer of causes.

Contra Costa until a district judge for the fifteenth judicial district shall have been duly appointed and qualified, the same in all respects as if said county had remained attached to the third judicial district; and the judge of said third district court may at any time within forty days after the appointment and qualification of a judge for the fifteenth judicial district as aforesaid, proceed to try and determine any cases that have already been by consent of parties agreed or ordered to be tried at chambers, and may determine and order judgment to be entered in any cases heretofore tried, reserved, or submitted, and may hear and decide all motions for new trials and all other motions necessarily arising in said causes, and may make all proper orders therein.

1404. SEC. 2. With the exceptions and limitations specified in the preceding seetion, all actions, causes, motions, and proceedings that may be pending in the district court in and for said county at the time when the district court of the fifteenth judicial district shall become fully organized by the due appointment and qualification of a judge for said district, shall be immediately transferred to and continued in the said district court of the fifteenth judicial district, and may be further prosecuted therein without abatement or prejudice by reason of such transfer.

SEC. 3. This act shall take effect immediately.

Essence of crime.

Intent.

Sound mind.

Infants.

Idiots.

Counselling

or idiots.

Crimes and Punishments.

An Act concerning crimes and punishments.

Passed April 16, 1850, 229.

FIRST DIVISION.

PERSONS CAPABLE OF COMMITTING CRIMES.

1405. SECTION 1. In every crime or public offense there must be an union or joint operation of act and intention, or criminal negligence.

1406. SEC. 2. Intention is manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused. 1407. SEC. 3. A person shall be considered of sound mind who is neither an idiot, nor lunatic, nor affected with insanity, and who hath arrived at the age of fourteen years; or before that age, if such person knew the distinction between good and evil. 1408. SEC. 4. An infant, under the age of fourteen years, shall be deemed incapable of knowing the distinction between good and evil, unless the contrary be clearly shown.() [Amendment, approved April 19, 1856, 219.

1409. SEC. 5. An idiot shall not be found guilty or punished for any crime with which he or she may be charged.

1410. SEC. 6. Any person counselling, advising, or encouraging an infant under infants, lunatics the age of fourteen years, a lunatic or idiot, to commit any offense, shall be prosecuted for such offense, when committed, as principal, and if found guilty shall suffer the same punishment that would have been inflicted on such person counselling, advising, or encouraging, as aforesaid, had he or she committed the offense directly, without the intervention of such idiot, lunatic, or infant.

Married woman.

Proviso.

Drunkenness no

excuse.

1411. Sec. 7. A married woman, acting under the threats, command, or coercion of her husband, shall not be found guilty of any crime not punishable with death; provided, it appear from all the facts and circumstances of the case that violent threats, command, or coercion, were used; and in such case the husband shall be prosecuted as principal, and receive the punishment which would have otherwise been inflicted on the wife if she had been found guilty.

1412. SEC. 8. Drunkenness shall not be an excuse for any crime, unless such drunkenness be occasioned by the fraud, contrivance, or force of some other person or persons, for the purpose of causing the perpetration of an offense, in which case the person or persons so causing said drunkenness for such malignant purpose shall be considered principal or principals, and suffer the same punishment as would have been inflicted on the person or persons committing the offense, if he, she, or they had been possessed of sound reason and discretion.

(") Original section:

SHO. 4. An infant under the age of fourteen years shall not be found guilty of any crime.

accident.

1413. SEC. 9. All acts committed by misfortune or accident shall not be deemed Misfortune and criminal when it satisfactorily appears that there was no evil design or intention or culpable negligence.

threats or menaces.

1414. SEC. 10. A person committing a crime not punishable with death, under threats Duress by or menaces which sufficiently show that his or her life was in danger, or that he or she had reasonable cause to believe and did believe that his or her life was in danger, shall not be found guilty, and such threats or menaces being proved and established, the person or persons compelling by such threats or menaces the commission of the offense, shall be considered as principal or principals, and suffer the same punishment as if he or she had perpetrated the offense.

SECOND DIVISION.

ACCESSORIES IN CRIMES.

deemed

10 Cal. 68.

1415. SEC. 11. An accessory is he or she who stands by and aids, abets, or assists; Accessories or who not being present aiding, abetting, or assisting, hath advised and encouraged principals. the perpetration of the crime. He or she who thus aids, abets or assists, advises or 5 Cal. 133. encourages, shall be deemed and considered as principal, and punished accordingly. 1416. SEC. 12. An accessory after the fact is a person who, after full knowledge Accessories after that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime. Any person being found guilty of being an accessory after the fact shall be imprisoned for any term not exceeding two years, and fined in a sum not exceeding five thousand dollars, to be regulated by the circumstances of the case and the enormity of the crime.

THIRD DIVISION.

WHO MAY BE A WITNESS IN CRIMINAL CASES.

fact.

1417. SEC. 13. The party or parties injured, shall in all cases be competent wit- Party injured. 7 Cal. 184. nesses; the credibility of all such witnesses shall be left to the jury as in other cases. 17 Cal. 68. In all cases where two or more persons are jointly or otherwise concerned in the Co-defendants. commission of any crime or misdemeanor, either of such persons may be sworn as a witness against another, in relation to such crime or misdemeanor; but the testimony given by such witness shall in no instance be used against himself, in any criminal prosecution, and any person may be compelled to testify as provided in this section.(") [Amendment, approved April 10, 1855, 105.

Indians, Mongols

and Chinese.

1418. SEC. 14. No Indian, or person having one-half or more of Indian blood, or Mongolian, or Chinese, shall be permitted to give evidence in favor or against any 4 Cal. 399. white person.() Amendment, approved March 18, 1863, 69.

14 Cal. 144.

A Affirmation.

1419. SEC. 15. The solemn affirmation of witnesses shall be deemed sufficient. false and corrupt affirmation shall subject the witness to all the penalties and punishments provided for those who commit wilful and corrupt perjury.

FOURTH DIVISION.

CRIMES AGAINST THE GOVERNMENT AND PEOPLE.

1420. SEC. 16. Crimes against the government and people shall consist in treason Crimes against and misprison of treason, and can be committed only by persons owing allegiance to government, &c.

the State.

1421. SEC. 17. Treason against the State shall consist only in levying war against Treason. 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. The punishment of treason shall be death. When the overt act of treason shall be committed without the limits of this State, the person charged therewith may be arrested, tried, and punished in any county of this State within the limits of which he may be found, and the offense may be charged to have been committed in the county where he may be arrested.

1422. SEC. 18. Misprison of treason shall consist in the knowledge and conceal

() The original section consisted of the first sentence above. () Original section:

SEC. 14. No black or mulatto person, or Indian, shall be permitted to give evidence in favor of, or against, any white person.

Every person who shall have one-eighth part or more of negro blood shall be deemed a mulatto, and every person who shall have one-half of Indian blood shall be deemed an Indian.

Misprison of treason.

Murder.

9 Cal. 576. 10 Cal. 309.

Express malice.

Implied malice.
6 Cal. 637. 8 Cal.

90. 9 Cal. 576. 17
Cal. 283. 17 Cal.

394. 20 Cal. 164,

21 Cal. 400.

21 Cal. 544.

Murder of second degree.

ment of treason, without otherwise assenting to, or participating in the crime. Any person being found guilty thereof shall be punished by confinement in the State prison for any term not exceeding five years.

FIFTH DIVISION.

OFFENSES AGAINST THE PERSONS OF INDIVIDUALS.

1423. SEC. 19. Murder is the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned.

1424. SEC. 20. Express malice is that deliberate intention unlawfully to take away the life of a fellow-creature, which is manifested by external circumstances capable of proof.

1425. SEC. 21. Malice shall be implied when no considerable provocation appears or when all the circumstances of the killing show an abandoned and malignant heart. All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or Murder of first burglary, shall be deemed murder of the first degree; and all other kinds of murder degree. shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree; but if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly. Every person convicted of murder of the first degree, shall suffer death, and every person convicted of murder of the second degree shall suffer imprisonment in the State prison for a term not less than ten years and which may extend to life.(") [Amendment, approved April 19, 1856, 219.()

Jury to
designate.

Proceeding on
confession.
15 Cal. 38.

Punishment.

Manslaughter.

Voluntary manslaughter

Irresistible passion.

Involuntary manslaughter.

Proviso.

Punishment.

Death within year and day.

Place of trial.

1426. SEC. 22. Manslaughter is the unlawful killing of a human being without malice expressed or implied, and without any mixture of deliberation. It must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible; or involuntary in the commission of an unlawful act, or a lawful act without due caution or circumspection.

1427. SEC. 23. In cases of voluntary manslaughter there must be a serious and highly-provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.

1428. SEC. 24. The killing must be the result of that sudden violent impulse of passion supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given and the killing, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and punished as murder.

1429. SEC. 25. Involuntary manslaughter shall consist in the killing of a human being, without any intent so to do; in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence in an unlawful manner; provided, that where such involuntary killing shall happen in the commission of an unlawful act, which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder.

1430. SEC. 26. Every person convicted of the crime of manslaughter shall be punished by imprisonment in the State prison for a term not exceeding ten years.(^) [Amendment, approved April 19, 1856, 219.

1431. SEC. 27. In order to make the killing either murder or manslaughter, it is requisite that the party die within a year and a day after the stroke received, or the cause of death administered; in the computation of which the whole of the day on which the act was done shall be reckoned the first.

1432. SEC. 28. If the injury be inflicted in one county, and the party die within another county or without the State, the accused shall be tried in the county where

(4) Original section: SEC. 21. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart. The punishment of any person convicted of the crime of murder shall be death.

() The proviso, contained in section 106 of this act as amended,

concerning offenses committed prior to April 19, 1856, applies also to this section as amended.

(c) Original section:

SEC. 26. Every person convicted of the crime of manslaughter shall be punished by imprisonment in the State prison for a term not exceeding three years, and fined not exceeding five thousand dollars.

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