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the act of administering a substance which has not the capacity of destroying life. The omission of the quality or capacity from the definition of a noxious substance, as given at the request of the prosecution, rendered it erroneous." In People v. Cuddihi, 54 Cal. 53, an indictment which recited that the defendant was

accused of the crime of "assault with intent to commit murder," and then proceeded to state facts showing that the defendant had administered poison with intent to kill, etc., was held sufficient to bring the case within the provisions of this section.

217. Assault with intent to commit murder.

Administering stupefying drugs: Sec. 222.

SEC. 217. Every person who assaults another with intent to commit murder is punishable by imprisonment in the state prison not less than one nor more

than fourteen years.

Stats. 1855, 105, sec. 2.

Assault with intent to commit murder. The intent is the gist of this offense, and it must be specifically averred and satisfactorily proved: State v. Neal, 37 Me. 468; Smith v. State, 52 Ga. 88; Johnson v. State, 35 Ala. 363; Morgon v. State, 13 Smed. & M. 242; State v. Johnson, 9 Nev. 175; People v. Yslas, 27 Cal. 630; People v. Murat, 45 Id. 281; People v. Swenson, 49 Id. 388; People v. Fine, 53 Id. 264. It is incumbent upon the prosecution to prove the intent, and if it appear that the assault was made under such circumstances as would, had death ensued therefrom, have mitigated the offense from murder to manslaughter, such intent is not made out: Wright v. State, 9 Yerg. 342; Collier v. State, 39 Ga. 31; Morman v. State, 24 Miss. 54; State v. White, 41 Iowa, 316; Vandermark v. People, 47 Ill. 122. A person cannot be convicted of this offense, unless he would have been guilty of murder in the first or second degree, had death resulted from the assault: 1 Whart. Crim. L., 8th ed., sec. 641; State v. Neal, 37 Me. 468; State v. White, 41 Iowa, 316; Meredith v. State, 60 Ala. 441. Premeditation and malice aforethought are also necessary ingredients in this offense, and must be averred and proved: People v. Urias, 12 Cal. 325.

Within this offense is included the minor offense of a simple assault, and in some cases depending upon whether the assault with intent to commit murder is alleged to have been with a deadly weapon, the offense of an assault with a deadly weapon to do bodily harm: People v. Davidson, 5 Cal. 134; People v. Vanard, 6 Id. 562; People v. English, 30 Id. 214; Ex parte Ah Cha, 40 Id. 426; Ex parte Max, 44 Id. 579; People v. Fine, 53 Id. 263; sec. 1159. If the indictment charging this offense avers that the defendant committed the assault with the intent to murder, it is sufficient: People v. Swenson, 49 Id. 388. But if upon the trial the evidence fails to show an intent to murder, the defendant can only be convicted of a simple

assault, and a verdict in such case that the defendant is guilty of an assault to do bodily harm means that he is guilty of a simple assault only: People v. Vanard, 6 Id. 562; People v. English, 30 Id. 214; Ex parte Ah Cha, 40 Id. 426; Ex parte Max, 44 Id. 579. So an indictment which charges an assault with intent to do bodily harm charges a simple assault only: People v. Martin, 47 Id. 112. But if the indictment avers that the assault was committed with a deadly weapon with intent to murder, then the defendant may be convicted of either an assault with intent to murder, an assault with a deadly weapon to do bodily harm, or a simple assault: People v. Congleton, 44 Id. 92; People v. Murat, 45 Id. 281; People v. Lightner, 49 Id. 226; see sec. 1159; see State v. Robey, 8 Nev. 312. An assault upon the wrong person by mistake does not excuse the defendant: People v. Torres, 38 Cal. 141. Mere threats, antecedently made, amount to no excuse for a deadly assault, when the party assailed has made no demonstration of a hostile or equivocal character: People v. Wright, 45 Id. 260. In People v. Fine, 53 Id. 264, an instruction to the jury that if they found the defendant guilty they must convict him of the offense charged in the indictment was held erroneous, the defendant having been indicted for an assault with intent to murder. See generally, as to what evidence is admissible on the trial of an indictment for this offense, People v. Shea, 8 Id. 538; People v. Roach, 17 Id. 297; People v. Yslas, 27 Id. 630. As to proper instructions, see People v. English, 30 Id. 214; People v. Hobson, 17 Id. 424.

Assault with intent to commit rape, etc.: Sec. 220, note.

Assault with intent to commit other felonies: Sec. 221.

Assault with deadly weapon: Sec. 245,

note.

Assault: Sec. 240, note.

Battery: Sec. 242, note.

CHAPTER VI.

ASSAULTS WITH INTENT TO COMMIT FELONY, OTHER THAN ASSAULTS WITH INTENT TO MURDER.

220. Assault with intent to commit rape.

SEC. 220. Every person who assaults another with intent to commit rape, the infamous crime against nature, mayhem, robbery, or grand larceny, is punishable by imprisonment in the state prison not less than one nor more than fourteen years.

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Stats. 1855, 105, sec. 2.

Assault with intent to rob.—For correct instructions to the jury, see People v. Cadd, 60 Cal. 640.

Assault with intent to commit murder: Sec. 217, note.

Assault with intent to commit rape, etc.-The intent to commit rape or the other offenses mentioned in this section is the essence of this crime: People v. Murat, 45 Cal. 283; People v. Woody, 48 Id. 80. The question of intent is a question of fact; and if evidence is introduced tending to prove the intent as alleged, the verdict will not be set aside on the ground that the evidence is insufficient to sustain the verdict: People v. Estrada, 53 Id. 600. An indictment alleging an assault with intent to commit an act of sexual intercourse by force and violence, and against the will of the woman, is a sufficient charge of an assault with intent to commit rape, without alleging that the force and violence was against her resistance: People v. Brown, 47 Id. 447. It need not be alleged that the person assaulted was not the wife of the defendant: People v. Estrada, 53 Id. 600. The language of the 221. Other assaults.

statute need not be followed in charging this offense; words conveying the same meaning may be employed: People v. Girr, Id. 629. An indictment which charges the defendant with feloniously assaulting a female, by throwing her on her back, and attempting to have sexual intercourse with her, with intent to outrage her person, does not charge an assault with intent to commit rape: People v. O'Neil, 48 Id. 257. A person who stands by when an attempt is made by others to commit a rape, but who does no act to aid, assist, or abet its commission, is not guilty of this offense: People v. Woodward, 45 Id. 293. Declarations of the defendant of his misconduct with other females are not admissible upon the trial of an indictment charging this offense: People v. Bowen, 49 Id. 654. An indictment charging the crime of rape and an assault with an intent to commit such offense is not demurrable on the ground that it charges two offenses: People v. Tyler, 35 Cal. 35.

Assault with intent to commit buggery: See sufficient indictment and correct instruc tions in People v. Williams, 59 Cal. 397. Rape: See sec. 261.

SEC. 221. Every person who is guilty of an assault with intent to commit any felony, except an assault with intent to commit murder, the punishment for which assault is not prescribed by the preceding section, is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both.

Assault generally: Sec. 240, and note. Assault to murder: Sec. 217, and note. Assault to commit rape: Sec. 220, and

note.

Assault with deadly weapon: Sec. 240,

222. Administering stupefying drugs.

and note. This offense does not include battery, and a conviction or acquittal of the former is no bar to a trial for the latter: People v. Helbing, 61 Cal. 620.

SEC. 222. Every person guilty of administering to another any chloroform, ether, laudanum, or other narcotic, anæsthetic, or intoxicating agent, with intent thereby to enable or assist himself or any other person to commit a felony, is guilty of felony.

Administering poison: Sec. 216.

CHAPTER VII.

225. Duel defined.

DUELS AND CHALLENGES.

SEC. 225. A duel is any combat with deadly weapons, fought between two or more persons, by previous agreement or upon a previous quarrel.

Duel defined.-At common law, a party killing another in a deliberate duel was guilty of murder; for wherever two persons in cold blood meet and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder; and cannot help himself by alleging that he was first struck by deceased, or that he had often declined to meet his adversary, and was prevailed upon by his importunity; or that it was his intent only to vindicate his reputation; or that he meant, not to kill, but only to disarm his adversary. He has deliberately engaged in an act highly unlawful, in defiance of the laws, and he must at

his peril abide the consequences; and upon this principle, wherever two persons quarrel over night, and appoint to fight the next day, or quarrel in the morning and agree to fight in the afternoon, or at any time afterward so considerable that in common intendment it must be presumed that the blood was cooled, the person killing will be guilty of murder: 1 Hawk. P. C., c. 31, sec. 22; 1 East P. C. 242; 1 Russell on Crimes, 727; 1 Whart. on Crim. L., 8th ed., sec. 482. But in this state it is held that the fighting of a duel with fatal results is not murder, but a special offense under the statute: Terry v. Bartlett, 14 Cal. 651.

226. Punishment for fighting a duel, when death ensues.

SEC. 226. Every person guilty of fighting any duel, from which death ensues within a year and a day, is punishable by imprisonment in the state prison not less than one nor more than seven years.

227. Punishment for fighting a duel, sending or accepting a challenge.

SEC. 227. Every person who fights a duel, or who sends or accepts a challenge to fight a duel, is punishable by imprisonment in the state prison or in a county jail not exceeding one year. [Amendment, approved March, 30, 1874; Amendments 1873-4, 428; took effect July 1, 1874.]

228. Persons fighting duels disfranchised.

SEC. 228. Any citizen of this state who shall fight a duel with deadly weapons, or send or accept a challenge to fight a duel with deadly weapons, either within this state or out of it, or who shall act as second, or knowingly aid or assist in any manner those thus offending, shall not be allowed to hold any office of profit, or to enjoy the right of suffrage, and shall be declared so disqualified in the judgment, upon conviction. [Amendment, approved April 6, 1880; Amendments 1880, 8 (Ban. ed. 129); took effect immediately.]

This section follows section 2 of article 20 of the constitution.

229. Posting for not fighting.

SEC. 229. Every person who posts or publishes another for not fighting a duel, or for not sending or accepting a challenge to fight a duel, or who uses any reproachful or contemptuous language, verbal, written, or printed, to or concerning another, for not sending or accepting a challenge to fight a duel, or with intent to provoke a duel, is guilty of a misdemeanor.

230. Duties of officers to prevent duels.

SEC. 230. Every judge, justice of the peace, sheriff, or other officer bound to preserve the public peace, who has knowledge of the intention on the part of any persons to fight a duel, and who does not exert his official authority to arrest the party and prevent the duel, is punishable by fine not exceeding one thousand dollars.

231. Leaving the state with intent to evade laws against dueling.

SEC. 231. Every person who leaves this state with intent to evade any of the provisions of this chapter, and to commit any act out of this state such as is prohibited by this chapter, and who does any act, although out of this state, which would be punishable by such provisions if committed within this state, is punishable in the same manner as he would have been in case such act had been committed within this state.

232. Witness's privilege.

SEC. 232. No person shall be excused from testifying or answering any question upon any investigation or trial for a violation of either of the provisions of this chapter, upon the ground that his testimony might tend to convict him of a crime. But no evidence given upon any examination of a person so testifying shall be received against him in any criminal prosecution or proceeding. "The sections relating to duels are founded of deadly weapons, was by the act of 1850, apon the provisions of an act of 1855, Stats. Stats. 1850, 229, made a felony, yet there was 1855, 152, sec. 1, and of sections 43 and 44 of no punishment affixed to the offense of dueling, the crimes and punishment act of 1850, and unless death ensued. The code supplies these sections 293, 294, 300, 301, and 303 of the New omissions. Sections 2 and 3 of the act of 1855, York penal code. No provision has ever been giving remedies by action for injuries, etc., made for carrying into effect the constitutional arising from dueling, are inserted in the Civil provisions on the subject, and although fight- Code. See Civ. Code, secs. 3347, 3348:" Coming by previous appointment, without the use missioners' note.

§§ 236-241

CRIMES AND PUNISHMENTS.

CHAPTER VIII.

FALSE IMPRISONMENT.

236. False imprisonment defined.

SEC. 236. False imprisonment is the unlawful violation of the personal liberty of another.

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False imprisonment.-Mr. Archbold, in speaking of the term "false imprisonment,' says that though technically it does not convey any sufficiently definite meaning, it means in law any illegal imprisonment, either without any process whatever or under color of process, wholly illegal, without regard to any question To whether any crime has been committed or not or a debt due: 1 Archb. Crim. Pl. 946. constitute this offense, there must be a detention of the person, and such detention must be unlawful. It is not necessary that the person should be confined in a prison; confinement in a private house, or a forcible detention on the street, is sufficient: Floyd v. State, 12 Ark. 43; Johnson v. Tompkins, 1 Baldw. 571. Any detention will be unlawful unless there be sufficient authority for it, arising either from some process from a court of justice, or from some warrant of a legal officer having power to commit, or arising from some other special cause sanctioned, for the necessity of the thing, either by common law or by statute: 1 Archb. Crim. Pl. 646; Crowell v. Gleason, 10 Me. 325. In some cases the detention may be unlawful though the warrant or process upon which it is made is regular, as on a Sunday, or in a place privileged from arrests: 4 Bla. Com. 218; 1 Hawk. P. C., c. 60, sec. 7; Prentis v. Common

237. False imprisonment, how punished.

SEC. 237.

Gold, 19 Id. 485. Words are sufficient to con-
wealth, 16 Am. Dec. 782, note 784; Bissell v.
stitute an imprisonment if they impose a re-
straint upon the person. Where, for instance,
a party refused to pay a delinquent tax until
she was arrested, and the officer then said, “I
arrest you," but did not touch her, and she
amounted to a false imprisonment: Id. 488. See
thereupon paid the tax, it was held this
Emery v. Chesley, 18 N. H. 198; Courtoy v.
Dozier, 20 Ga. 369; Searls v. Viets, 2 Thomp. &
C. 224. False imprisonment is a mixed ques-
tion of law and fact: whether there was a de-
tention of the party, against his will, amount-
ing to an imprisonment, is a question of fact;
and whether the authority under which it was
effected was lawful, or was such as did not jus-
is a question of law, depending upon the cir-
tify the officer or jailer, etc., in the detention,
cumstances of each particular case. The prose-
cution must prove the imprisonment, and the
trary is shown. It is for the defendant to jus-
law then presumes it unlawful, until the con-
tify it by proving that it was lawful: 1 Archb.
Crim. Pl. 949. In this state, false imprison-
ment is only a misdemeanor: People v. Ebner,
23 Cal. 158.

Reconfining person discharged on habeas corpus: Sec. 363, post.

False imprisonment is punishable by fine not exceeding five thousand dollars, or by imprisonment in the county jail not more than one year, or both.

CHAPTER IX.

ASSAULT AND BATTERY.

240. Assault defined.

SEC. 240. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

241. Assault, how punished.

SEC. 241. An assault is punishable by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding three months.

Section cited People v. Helbing, 61 Cal. 620. Assault with deadly weapon: Sec. 245. Assault. The definition here given is substantially that of the common law: People v. Yslas, 27 Cal. 630. It is cited in People v. Helbing, 61 Id. 620. To constitute an assault, there must be an intentional attempt by violence to do an injury to the person of another. It must be intentional. If there is no present purpose to do an injury there is no assault. The present ability to carry the party's intention into effect is not, however, in all cases necessary. It will be sufficient if the aggressor, by his conduct, lead another to suppose that he will do what he apparently attempts to do.

68

ple v. Yslas, supra.
There must also be an unlawful attempt: Peo-

A purpose not accompanied by an effort to carry into immediate execution falls short of an assault. The mere use of words can But rushing never amount to an assault.

towards another with menacing gestures, and
with an intent to strike, is an assault, though
the accused is prevented from striking before
he comes near enough to do so: State v. Davis,
But mere threatening gestures, unaccompa
1 Ired. L. 125; People v. Yslas, 27 Cal. 630.
cause a person to believe that he was about
nied by such intent, although sufficient to
to be struck, do not amount to an assault,

Thus, when the defendant shook his whip at the prosecutor, saying at the same time, "If you were not an old man I would knock you down:" Held, no assault, unless the jury should be satisfied that there was a present purpose to strike: State v. Crow, 1 Ired. 375. See also Commonwealth v. Eyre, 1 Serg. & R. 347; United States v. Hand, 2 Wash. 435. Threatening another with a weapon to compel him to submit to a demand, intending to strike if he refuses, but not to strike if he submits, is an assault, although the other party may submit to the demand: State v. Morgan, 3 Ired. 186; People v. McMankin, 8 Cal. 547. Holding a pistol which purports to be loaded so near another person as would endanger life if it were fired, although the pistol is not in fact loaded, is an assault: State v. Smith, 2 Humph. 457; Rex v. Parfait, 1 Leach, 4th ed., 19; 1 East P. C. 416; Rex v. Thomas, 1 Leach, 4th ed., 330; 1 East P. C. 417.

If the party suffering the violence has consented to it, there is no assault. Thus, although a child of tender years cannot legally consent to a rape upon her, yet she may consent to an attempt to commit it; and such an attempt, if committed with her consent, is not an assault: Regina v. Cockburn, 3 Cox C. C. 543; Regina v. Read, Id. 266; 1 Denio, 377; Regina v. Mehegan, 7 Cox C. C. 145. Mere failure to resist

242. Battery defined.

is not enough: Regina v. McGavaran, 6 Id. 64. So where a medical man had criminal connec. tion with a girl fourteen years of age, she consenting from a bona fide belief that the defendant was treating her medically, as he represented he was doing, he was held properly convicted of an assault: Regina v. Case, Id. 220. The administering of poison is also an assault. Also, the malicious application of injurious drugs: 1 Whart. Crim. L., 8th ed., sec. 610; Commonwealth v. Stratton, 114 Mass. 303; but see Garnet v. State, 1 Tex. App. 605; see also secs. 216, note, and 221. In this state a defendant indicted for an assault to commit murder, and found guilty of an "assault with intent to do bodily injury,' is only guilty of a simple assault, and can only be punished for that offense, and not for a felony: People v. Vanard, 6 Cal. 562; People v. English, 30 Id. 214; Ex parte Ah Cha, 40 Id. 426; Ex parte Max, 44 Id. 579.

Assault with intent to commit murder: Sec. 217, note.

Assault with attempt to commit rape, etc.: Sec. 220, note.

Assault with deadly weapon: Sec. 245, note.

Assault with intent to commit crime against nature: Sec. 220, and note. Assault with intent to rob: See sec. 220. and note.

SEC. 242. A battery is any willful and unlawful use of force or violence upon the

person of another.

Battery. The definition here given of battery is substantially the same as that given to the crime of assault and battery by the act concerning crimes and punishments, passed April 16, 1850, Stats. 1850, 234, sec. 51. As defined in that section, "assault and battery is the unlawful beating of another." This is the definition given to battery by Blackstone: 3 Com. 120. The least touching of another's person willfully or in anger is sufficient to complete this offense, as the taking hold of the coat, or laying the hands on the person of another, in a rude and insolent manner: United States v. Ortega, 4 Wash. 531. So the spitting in another's face; sprinkling paint on him; holding him by the arm; pushing another against him; striking a horse upon which he is riding, whereby he is thrown; or throwing water upon him—are all acts of violence which constitute battery: Wheel. 410; 6 Mod. 142; Id. 172; Bull. N. P. 16; 1 Mod. 24; 3 Nev. & P. 564. It is not necessary, however, in order to constitute this offense, that the act complained of should be actually accompanied with violence, provided it be improper in itself, and be done against the free-will of the

243. Battery, how punished. ·

party complaining, or without his consent, whether such party be in a condition to assent or not: Seesec. 240, note. A person may be guilty of battery by aiding, abetting, or procuring the act, although he does not actively participate in it: 1 Archb. Crim. Pl. 912, and cases there cited. An assault or battery is justifiable when committed in self-defense, or in defense of one's wife, child, servant, or property: Id. 920, 921. Since the adoption of the Penal Code the crime of "assault and battery" has not existed in this state, and to charge a defendant with such an offense is to charge him with two separate and distinct offenses, to wit, an assault, and a battery. Advantage of such misjoinder must be taken by demurrer or it is waived. It cannot be taken advantage of on an application to release the defendant on habeas corpus, on the ground that he is charged with no crime known to the law: Ex parte Balch, reported in San Francisco Examiner, January 16, 1877.

Battery includes assault, but assault does not include battery: People v. Helbing, 61 Cal. 620.

SEC. 243. A battery is punishable by fine of not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding six months, or by both. [Amendment, approved February 26, 1881; Statutes and Amendments 1881, 11.] Punishment of battery.-After a prisoner three years, he is entitled to his discharge: Ex had served six months in the house of correc- parte Bulger, 60 Cal. 438. tion, under a sentence that he be imprisoned 244. Assaults with caustic chemicals.

SEO. 244. Every person who willfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corro

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