its primary canon, have made him his own protector:" 4 Bla. Com. 30; see Rex v. McGowther, 18 St. Tr. 391; Rex v. Crutchley, 5 Car. & P. 133; 1 Whart. Crim. L., 8th ed., sec. 94. The subdivision of section 26 of the Penal Code now under consideration was taken from the 27. Who are liable to punishment. rule as laid down by Blackstone, with the limitation that the threats or menaces must be such as to give the party reasonable cause to believe his life was in danger, and not such as would only cause bodily harm, other than the taking of life. SEC. 27. The following persons are liable to punishment under the laws of this state: 1. All persons who commit, in whole or in part, any crime within this state; 2. All who commit larceny or robbery out of this state, and bring to or are found with the property stolen in this state. 3. All who, being out of this state, cause or aid, advise or encourage, another person to commit a crime within this state, and are afterwards found therein. Penal laws, Operation and effect of, strictly local.-The common law considers crimes as altogether local, cognizable and punishable exclusively in the country where they are committed. No other nation, therefore, has any right to punish them, or is under any obligation to take notice of or to enforce any judgment rendered in such cases by the tribunal having authority to hold jurisdiction within the territory where they are committed: Story on Confl. L., sec. 620; The Antelope, 10 Wheat. 123; Warrender v. Warrender, 9 Bligh, 119; Ogden v. Folliott, 3 T. R. 733. Crimes are in their nature local, and the jurisdiction of crimes is local: Rafael v. Verelest, 2 W. Black. 1058. The lex loci must needs govern all criminal jurisdiction, from the nature of the thing and the purpose of that jurisdiction: Lord Brougham, in Warrender v. Warrender, supra. All persons within the state, whether residents or aliens, are amenable to the penal laws thereof, and liable to be punished for any infraction of such laws: 1 Whart. Crim. L., 8th ed., sec. 282. "Whoever," says Berner, in his authoritative work on the territorial bounds of penal jurisdiction, "enters into our territory, juridically binds himself to submit to the laws of this territory:" Id., sec. 281; United States v. Wiltberger, 5 Wheat. 97; Regina v. McCafferty, 10 Cox C. C. 603; State v. Doxtater, 47 Wis. 283; Whart. Confl. L., secs. 853, 854; see also sec. 778, post. court, who agreed with him that the prisoner could not be convicted either of larceny or of receiving. The island of Guernsey was not a part of the United Kingdom, and a larceny committed therein would be in the same position here as if it had been committed in France. Now, clearly, a larceny committed in France could not be taken cognizance of in this .country.' In several of the United States such jurisdiction is held not to exist unless conferred by statute: People v. Gardner, 2 Johns. 477; People v. Schenck, Id. 479; State v. Le Blanch, 31 N. J. L. 82; Simmons v. Commonwealth, 5 Binn. 619; State v. Reonnals, 14 La. Ann. 278. In other states this jurisdiction is held to exist as between the several United States, independent of any statute: 1 Whart. Crim. L., 8th ed., sec. 291, and cases there cited. Statutes similar to subdivision 2 of section 27 have been adopted in a number of the United States, and such enactments are held to be within the constitutional power of cach state: People v. Burke, 11 Wend. 129; La Vaul v. State, 40 Ala. 44; Hemmaker v. State, 12 Mo. 453; State v. Williams, 35 Id. 229; McFarland v. State, 4 Kan. 68; State v. Seay, 3 Stew. 123. Stolen property brought into state: See sec. 789, post. In England it was early established that when goods were stolen in one country and brought by the thief into another, the latter had no jurisdiction to punish the offender: Butler's Case, 13 Co. 55; Rex v. Prowes, 1 Moo. C. C. 349; Regina v. Debruiel, 11 Cox C. C. 207; Regina v. Madge, 9 Car. & P. 29. In Regina v. Debruiel, supra, the defendant was indicted in England for robbing a house in Guernsey and bringing the property to Eng. land. Byles, J., speaking for the court, said "that, the case being new, he had taken the opinion of the learned baron in the other 20 Crime committed by person out of state. Although the penal laws of every country are in their nature local, yet an offense may be committed in one sovereignty in violation of the laws of another; and if the offender be afterwards found in the latter state, he may be punished according to the laws thereof, and the fact that he owes allegiance to another sovereignty is no bar to the indictment: Story's Conf L., sec. 625 b. See article on "Extraterritorial Crime," 4 Southern Law Rev. 676, 690, where the right of a state to punish a person who commits a crime against the laws while out of the state, and subsequently comes within the state, is discussed at length; also State v. Grady, 34 Conn. 118; Commonwealth v. Smith, 11 Allen, 243; People v. Adams, 3 Denio, 190; S. C. affirmed on appeal, 1 N. Y. 173; Com monwealth v. Macloon, 101 Mass. 1. See sec. 778, note. Parties to crime.-At the common law, persons engaged in the commission of crime were chargeable either as principals in the first degree, principals in the second degree, or as 31. Who are principals. accessaries before or after the fact: 4 Bla. Com. SEC. 31. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics, or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed. Principals. In criminal law, a principal is "the actor in the commission of a crime: At the Bouv. Law Dict., tit. "Principal.' common law, principals were of the first or second degree. A principal of the first degree was one who did the act himself, or by the means of an innocent agent. But to constitute him such, it was not necessary that he should be actually present when the offense was consummated; thus in case of murder by poisoning, a man may have been a principal felon by preparing and laying the poison: 1 Ch. Crim. L. 257; 4 Bla. Com. 34. So if the offense was committed in his absence, through the medium of an innocent agent, as where he incited a madman to commit a crime, such person, though absent when the crime was committed, was liable as principal in the first degree: 1 Hale P. C. 514; 1 Ch. Crim. L. 257. Principals in the second degree were those who were present aiding and abetting the commission of the fact. They were generally termed aiders and abetA person to be a principal in the second degree need not have been actually present as an eye-witness or ear-witness of the transaction. His presence may have been constructive, as if with the intention of giving assistance he was near enough to afford it should the occasion arise. As where a person waited outside of a house to prevent surprise, while his companions were in the house committing a felony, such presence was sufficient to make him a principal in the second degree: 1 Russ. Crim. L. 27; Commonwealth v. Knapp, 9 Pick. 496; 20 Am. Dec. 491. By sections 11 and 255 of the criminal practice act, all distinctions between principals in the first and in the second degree, and between principals and accessaries before the fact, was done away with in this state, and all such are punishable as principals: Hittell's Gen. Laws, secs. 1415, 1842; People v. Cryder, 6 Cal. 23; People v. Bearss, 10 Id. 68; People v. Outeveras, 48 Id. 19; People v. Ah tors. 21 tions 11 and 255 just referred to have been re- as though his own hand had intentionally given the fatal blow, and is guilty of murder in the first degree;" and it was held that such instruction was correct. See also People v. Leith, 52 Id. 251; People v. Woody, 45 Id. 289; People v. Pool, 27 Id. 573. In People v. Jamarillo, 57 Cal. 111, the accused was not shown to have fired the shot that killed the deceased. He and another, one Ortego, both fired, the defendant's pistol snapping the first time. The court say: "The evidence was sufficient to justify the jury in finding that the defendant may have fired the fatal 32. Who are accessaries. shot; but if it were otherwise, and it showed only that the fatal shot was fired by Ortego, and that the defendant had urged and encouraged and aided and assisted him to kill the deceased, the legal presumption from such conduct and acts would be that he himself intended to kill the deceased, and in executing that intention by the guilty means which he followed he is considered in law as guilty of the crime which may have been committed in the death of the deceased as though he had actually slain the deceased with his own hand." Section cited and applied in People v. Anthony, 56 Id. 395. SEC. 32. All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are accessaries. Accessaries. An accessary is one who is not the chief actor in the perpetration of the offense, nor present at its performance, but who is in some way concerned therein. At the common law, there were certain crimes to the commission of which there could not be an accessary, but all persons engaged in the commission thereof were chargeable as principals. Of these were treason, and all offenses below a felony: 1 Ch. Crim. L. 261. An accessary before the fact is one that, being absent at the time of the actual perpetration of the felony, procures, counsels, commands, incites, or abets another to commit it: Id. 262. The distinction between accessaries before the fact and principals has been abolished in this state: See note to last section. An accessary after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon: 4 Bla. Com. 37. In order to charge a person as accessary after the fact, the felony must be completed, he must know the felon to be guilty, and he must receive, relieve, comfort, or assist him: 1 Ch. Crim. L. 264; 1 Whart. Crim. L., 8th ed., sec. 241; Wren v. Commonwealth, 26 Gratt. 952; Tully v. Commonwealth, 11 Bush, 154; People v. Hawkins, 34 Cal. 182. Knowledge of the commission of the felony must be brought home to the accused; and whether he had such knowledge is always a question of fact for the jury: Wren v. Commonwealth, 26 Gratt. 956. Any assistance given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to make a man accessary after the fact; as that he concealed him in his house, or shut the door against his pursuers until he should have an opportunity to escape; or took money from him to allow him to escape; or supplied him with money, a horse, or other necessaries, in order to enable him to escape; or that the principal was in prison, and the jailer was bribed to let him escape; or conveyed instruments to him to enable him to break prison. This and like assistance to one known to be a felon will constitute one an accessary after the fact: 2 Hale P. C. 619, 621; 2 33. Punishment of accessaries. Hawk. P.C., c. 29, sec. 26; 1 Whart. Crim. L., 8th ed., sec. 241; Wren v. Commonwealth, 26 Gratt. 956. Merely permitting a felon to escape is not sufficient to impute guilt to the party so doing: 2 Hale P. C. 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 accessary after the fact: Wren v. Commonwealth, 26 Gratt. 957; 1 Whart. Crim. L., 8th ed., sec. 242. Neither will a person who receives stolen property, and aids in the disposi tion of it, knowing it to be stolen, be chargeable as such: People v. Stakem, 40 Cal. 599. "The true test whether one is accessary 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:" 1 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 accessary. The record of conviction of the principal was prima facie evidence of his guilt against a person charged as accessary, but he might show that the principal was not guilty: I Archb. Crim. Pl. 78. By statute, however, in most of the states, the offense of an accessary is made substantive and independent, and the accessary 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. Commonwealth, 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 accessary 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 is 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. SEO. 33. Except in cases where a different punishment is prescribed, an accessary is punishable by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding two years, or by fine not exceeding five thousand dollars. Aiding in misdemeanor is a misdemeanor: See sec. 659. TITLE III. OF OFFENSES AGAINST THE SOVEREIGNTY OF THE STATE. 37. Treason, who only can commit. SEC. 37. Treason against this state consists only in levying war against it, adhering to its enemies, or giving them aid and comfort, and can be committed only by persons owing allegiance to the state. The punishment of treason shall be death. 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: Const. Cal., sec. 20, art. 1; see also Const. U. S., sec. 3, art. 3; Code Civ. Proc., 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. 38. Misprision of treason. Greathouse, 2 Abb. 364. The term "enemies" SEC. 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. 41. Violation of election laws by certain officers a felony. SEC. 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. 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. 42. Fraudulent registration a felony. But if such officer, knowing a vote to be illegal, SEC. 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 offence under the provisions of this section, it appears in evidence that the accused stands registered in the great register of any county, without being 23 qualified for such registration, the court must order such registration to be canceled. Stats. 1866, 299, sec. 34. 43. Refusal to be sworn by or answer questions of judges of election a misdemeanor. SEC. 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 misdemeanor. [Amendment, approved March 30, 1874; Amendments 1873-4, 423; took effect July 1, 1874.] Stats. 1866, 511, sec. 5. The amendment consisted in omitting after "touching" the words "his right or." 44. Refusal to obey summons of board of registration a misdemeanor. SEC. 44. Every person summoned to appear and testify before any board of registration who willfully disobeys such summons is guilty of a misdemeanor. Stats. 1865, 652, sec. 15. 45. Voting without qualification, voting twice, and other election frauds, felonies. SEC. 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 ballotbox, 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. Stats. 1855, 296, sec. 1; 1858, 165, sec. 1. Not entitled to vote.-A minor cannot 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. 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. 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. Attempting to vote without being qualified. SEC. 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. Stats. 1850, 111, sec. 101. 47. Procuring illegal voting a misdemeanor. SEC. 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 misdemeanor. Stats. 1866, 511, sec. 8. |