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CHAPTER VII.

OF CRIMES AGAINST RELIGION AND CONSCIENCE, AND OTHER OFFENSES

AGAINST GOOD MORALS.

$310. United States flag. Desecration, mutilation, or improper use of. Penalty. 8310. UNITED STATES FLAG. DESECRATION, MUTILATION, OR IMPROPER USE OF. PENALTY. Any person, firm or corporation, who, in any manner, for exhibition or display, puts, places, or causes to be placed, an inscription, picture, device, design, symbol, name, advertisement, word, letter, character, mark or notice of any kind whatsoever, upon any flag of the United States, or ensign evidently purporting to be such flag, or who in any manner appends, annexes or affixes to any such flag any inscription, picture, device, symbol, name, advertisement, word, letter, character, mark or notice whatsoever, or who displays or exhibits, or causes to be displayed or exhibited, any flag of the United States or ensign purporting to be such flag, upon which is put, attached, annexed, affixed or placed in any manner, any inscription, picture, design, device, symbol, name, advertisement, word, letter, mark or notice whatsoever, or who mutilates, tramples upon, or otherwise defaces or defiles any such flag, said flag being public or private property, or who places or causes to be placed on any manufactured or prepared article or covering of said article, such flag or indication of such flag, or who uses or causes to be used for purposes of a commercial or other trade-mark, such flag or indication of such flag, shall be fined not more than two hundred dollars or imprisoned not more than one year, or both, for each and every offense, in the county jail of the county in which the trial is held; provided, however, that flags or ensigns, the property of and used in the service of the United States, or any state, territory or District of Columbia, may have inscriptions, names of actions, battles, skirmishes, or words, marks or symbols, which are placed thereon pursuant to law or authorized regulations.

History: Enactment approved March 18, 1909, Stats. and Amdts. 1909, p. 401; amended April 5, 1917, Stats, and Amdts. 1917, p. 43.

in effect July 27, 1917. § 311.

8 315. 1. Indecent exposure - Construction-In- 1. Keeping, etc., house of ill-fame-Initiajunctive relief.--Although the acts described tion of proceedings, by whom.-There is no in the complaint when committed would provision of law imposing upon a constable constitute the offense designated herein for the duty of instituting proceedings for a which the law prescribes a penalty upon violation of this and section 316. Such proconviction, courts of equity are vested with ceedings are instituted by the filing of a jurisdiction, when the threatened acts in verified complaint with a magistrate, and a addition to being an indictable offense con- constable has no greater duty in this regard stitute a public nuisance under section 731 than a private citizen. His failure to act of the Code of Civil Procedure to interpose upon common repute in making an arrest is injunctive process to prevent injury which not a neglect of official duty.-Ferguson v. will result from the maintenance thereof.- Superior Court, 26 Cal. App. 554, 147 Pac. Weis v. Superior Court, 30 Cal. App. 730, 159 603. Pac. 464.

CHAPTER X.

GAMING.

$ 331. Permitting gambling in house owned or rented.

8 331. PERMITTING GAMBLING IN HOUSE OWNED OR RENTED. Every person who knowingly permits any of the games mentioned in section three hundred thirty and section three hundred thirty a of this code to be played, conducted, or dealt in any house owned or rented by such person, in whole or in part, is punish able as provided in the preceding sections.

History: Enacted February 14, 1872, founded on § 4, Act March 7, 1860, Stats. 1860, p. 70; amended June 1, 1917, Stats. and Amdts. 1917,

p. 1661. In effect July 31, 1917. 8 339.

render the transaction whereby he charged

and received a rate of interest in excess of 1. Pawnbrokers-Construction of section.

2 per cent so wholly void as to entitle the -The failure of the pawnbroker to deliver to the plaintiff a copy of his register entries

pledgor to recover his property without as required by section 339 of the Penal Code

paying or offering to pay the amount of his

several loans. The does not render the contracts for the loans

agreements between

plaintiff and defendant as to their loans and invalid, as the only penalty imposed by the section is a fine not exceeding a specified

pledges were legal as to the principal sum amount:--Innes v. Goldwater, 30 Cal. App.

of the loans and security were concerned

and only illegal as to the interest to be 101, 157 Pac. 18.

charged. The question as to whether plain

tiff is required to make an additional tender 8 340.

of any sum as interest up to or less than 1. Interest pawnbrokers may charge- the 2 per cent is mentioned, but not decided, Construction. The violation of this section -Innes v. Goldwater, 30 Cal. App. 101, 157 by the defendant as a pawnbroker does not Pac. 18.

CHAPTER XII.

OTHER INJURIES TO PERSONS.

$ 35la. Falsely representing goods kept for sale [new]. 8 3512. FALSELY REPRESENTING GOODS KEPT FOR SALE. Any person who sells, attempts to sell, offers for sale or assists in the sale of any goods, product or output, and who wilfully and falsely represents such goods, product or output to be the goods, product or output of any dealer, manufacturer or producer other than the true dealer, manufacturer or producer, or any member of a firm or any officer of a corporation, who knowingly permits any employee of such firm or corporation to sell, offer for sale or assist in the sale of any goods, product or output or to falsely represent such goods, product or output to be the goods, product or output of any dealer, manufacturer or producer, other than the true dealer, manufacturer or producer, is guilty of a misdemeanor and punishable by a fine of not less than fifty dollars or more than three hundred dollars, or by imprisonment in the county jail for not less than twenty or more than ninety days, or both;

[Written consent.] provided, however, that this section shall not apply to any person who sells or offers for sale under his own name or brand the product or output of another manufacturer or producer with the written consent of such manufacturer or producer.

History: Enactment approved May 17, 1917, Stats, and Amdts. 1917,

p. 570. In effect July 27, 1917. 8 367c.

an automobile colliding with another vehicle 1. Collision of vehieles-Construction re- to stop and render assistance to a person pealed in part.--The provisions of section who may have been injured by the collision, 367c of the Penal Code, which denounce as a and, if required, to carry such person to a felony the willful failure of the driver of physician or surgeon for medical or surgical treatment, were not repealed by the Motor Vehicle Act of 1913, which went into effect some five months subsequently to the time when such section became law, but only those provisions of such section were repealed which denounce as a felony the failure of the driver under such circumstances to stop and give his name and address and the number of his automobile, which by such act were reduced to the grade of a

misdemeanor.–People v. Finley, 27 Cal. App. 291, 149 Pac. 779.

2. —Indictment, objection to.-Where an information charges both offenses under the code section, and no demurrer is interposed by the defendant thereto, he will not be heard to complain on appeal that the information charged both a misdemeanor and a felony.-People v. Finley, 20 Cal. App. 710, 149 Pac. 779.

TITLE X.

OF CRIMES AGAINST THE PUBLIC HEALTH AND SAFETY.

$ 373. Establishing and keeping pesthouses within cities, towns, or villages (repealed). 8 373. ESTABLISHING AND KEEPING PESTHOUSES WITHIN CITIES, TOWNS, OR VILLAGES [repealed).

History: Enacted February 14, 1872, founded upon $$ 1, 2, Act
March 10, 1853, Stats. and Amdts. 1853, p. 35; repealed April 5, 1917,
Stats. and Amdts. 1917, p. 40. In effect July 27, 1917.

TITLE XII.

OF CRIMES AGAINST THE REVENUE AND PROPERTY OF THIS STATE.

§ 439. Effecting insurance on account of foreign companies that have not complied with the

laws of this state (repealed).

§ 435.

1. Selling intoxicating liquors without license.-One who has kept within the terms of a prior ordinance and holds a license issued by the authorities thereunder can not be punished on the ground that the acts done by him are in violation of an initiative ordinance prohibiting the sale of intoxicat: ing liquors in any portion of the county

outside the corporate limits of a city or town, but which neither provides for a license nor makes it a misdemeanor nor provides a punishment for its violation; neither can the person be punished under this section because he has a license, and again, the initiative ordinance contains no provision for the issuance of a license to sell intoxicants.-Matter of Ellsworth, 165 Cal. 677, 133 Pac. 272.

8 439. EFFECTING INSURANCE ON ACCOUNT OF FOREIGN COMPANIES THAT HAVE NOT COMPLIED WITH THE LAWS OF THIS STATE [repealed).

History: Enacted February 14, 1872; repealed April 20, 1917, Stats. and Amdts. 1917, p. 150. In effect July 27, 1917.

TITLE XIII.

OF CRIMES AGAINST PROPERTY.

an

§ 447.

fire.--People v. Abrams, 174 Cal. 172, 162 1. Arson-What constitutes.-In order to Pac. 395. constitute the crime of arson of the first de- 3. --Evidence. Under information gree it is essential that "some human being" charging a husband and wife with the crime other than the person or persons doing the of arson, in the willful, malicious and feloforbidden act be present in the building at nious setting fire to and burning with inthe time of the burning.-People v. Abrams, tent to destroy, a certain building, the prop174 Cal. 172, 162 Pac. 395.

erty of another, occupied by them as tenants 2. To constitute arson, it is not necessary as a dwelling-house, a verdict finding the that a person other than the accused should husband guilty of arson in the first degree, have had ownership in the building set on is unwarranted, where the evidence clearly

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$ 459.

BURGLARY. 1, 2. Elements of offense. 3, 4. Effect of possession of stolen property. 5, 6. Harmless error.

1. Elements of offense.--A breaking is not an essential element of burglary; an entry of any character made for the purpose and with the intent to commit the crime of grand or petty larceny, is sufficient.—People v. Ferns, 27 Cal. App. 285, 149 Pac. 802.

2. The failure to show in such a prosecution that the property taken was of sufficient value to make the taking thereof a felony is immaterial, for the reason that the statute defining the offense provides that every person who enters a room with intent to commit grand or petty larceny or any felony is guilty of burglary.--People v. Ferns, 27 Cal. App. 285, 149 Pac. 802.

3. Effect of possession of stolen property. -Where goods have been feloniously taken by means of a burglary, and they are immediately or soon thereafter found in the possession of a person who gives a false account, or refuses to give any account, of the manner in which he came into the possession, proof of such possession and guilty conduct is presumptive evidence not only that he stole the goods, but that he made use of the means by which access to them was obtained.-People v. Morrell, 28 Cal. App. 729, 153 Pac. 977.

4. While the mere possession of stolen property unexplained by the defendant is not of itself and standing alone sufficient to justify a conviction of burglary, even if it is shown to a moral certainty and beyond a reasonable doubt that by some one the alleged burglary was committed, yet such possession is a circumstance which, taken in connection with other incriminating evidence, may be considered by the jury in determining the question of the guilt or innocence of a defendant so charged.—People v. Keko, 27 Cal. App. 351, 149 Pac. 1003.

5. Harmless error.In a prosecution for the crime of burglary, it is error to admit in evidence incriminating statements made by the accused, over his objection, without a showing first being made that the same were voluntarily made, but it is error, without prejudice, where the voluntary character thereof is made to appear during the further progress of the examination of the witnesses testifying thereto.-People v. Clark, 28 Cal. App. 735, 153 Pac. 980.

6. The failure of the court to include in his instructions the words added by amend. ment "mine or any underground portion thereof" in defining the offense, was not prejudicial error where the defendant was not charged with entering a mine or portion thereof.—People v. Morrell, 28 Cal. App. 729, 153 Pac. 977.

8 464. BURGLARY WITH EXPLOSIVES. 1. Any person who, with intent to commit crime, breaks and enters, either by day or by night, any building, whether inhabited or not, and opens or attempts to open any vault, safe or other secure place by use of nitroglycerine, dynamite, gunpowder or any other explosive, shall be deemed guilty of burglary with explosives.

2. [Penalty.] Any person duly convicted of burglary with explosives shall be punished by imprisonment for a term of not less than twenty-five nor more than forty years.

History: Enactment approved May 5, 1917, Stats, and Amdts. 1917, p. 273. in effect July 27, 1917.

CHAPTER IV.

FORGERY AND COUNTERFEITING.

$ 483. Selling tickets, etc., to person not entitled to use [new].

by the complainant from the appellant on the date charged.-People v. Freeman, 29 Cal. App. 545, 156 Pac. 995.

§ 470.

1. Forgery-Evidence in prosecution for. -In a prosecution for forging and negotiating a note and mortgage it is error to admit in evidence a statement made by the defendant that he and a person by the name of the person named as mortgagee in the instrument had participated in another transaction whereby a sum of money had been procured upon a purported sale of realty consummated by means of a forged instrument.People v. Canfield, 173 Cal. 309, 159. Pac. 1046.

§ 476.

1. Making, etc., fictitious bills-Construction of section.-A check drawn to "cash or bearer" is such an instrument as is described in section 476 of the Penal Code. People v. Freeman, 29 Cal. App. 545, 156 Pac. 995. 2.

-Variance, when Immaterial.-In a prosecution for the crime of passing a check without having sufficient funds in the bank upon which it was drawn to pay the amount specified therein, a variance between the date line of the check as set out in the information and the date line of the check itself, consisting of the omission in the former of the figure "1" before the figure "2" in describing the date of the month, is immaterial, where it appears from the evidence that such omission was a clerical error, and that no other check was received

$ 476a.

ISSUING CHECK TO DEFRAUD. 1. Elements of the offense—Want of funds. 2. Evidence. 3. Of other similar offenses. 1. Elements of

the offense — Want of funds.—The want of funds in or credit with the bank upon which the draft or check is drawn constitutes one of the essential elements of the crime herein denounced.-People v. Frey, 165 Cal. 140, 131 Pac, 127.

2. Evidence.—The information need not allege that the check drawn by the person charged with the offense was presented to the bank and hence such fact need not be proved.-People v. Weir, 30 Cal. App. 766, 159 Pac. 442.

3. of other similar offenses.—The criminal intent of the defendant when making and drawing the check was an essential element of the offense, and where he admits the act but defends it upon the ground that it was free from felonious intent, proof of the commission of similar acts, independent and disconnected and whether before or after the commission of the act charged, are relevant and competent for the purpose of showing guilty intent.—People v. Weir, 30 Cal. App. 766, 159 Pac. 442.

$ 483. SELLING TICKETS, ETC., TO PERSON NOT ENTITLED TO USE. Any person, firm, corporation, partnership, or association that shall sell to another any ticket, pass, scrip, mileage or commutation book, coupon, or other instrument for passage on a common carrier, for the use of any person not entitled to use the same according to the terms thereof, or of the book or portion thereof from which it was detached, shall be guilty of a misdemeanor.

History: Enactment approved May 31, 1917, Stats. and Amdts. 1917, p. 1401. In effect July 30, 1917.

CHAPTER V.

LARCENY.

$ 499a. Stealing electricity a misdemeanor.

$ 484.

charge of the clothing or the money therein

of a person who takes a bath, the relation LARCENY.

of bailor and bailee does not arise, and if 1. As to what amounts to.

the proprietor thereafter appropriates the 2, 3. Distinction between larceny and em

money, his act amounts to larceny.-People bezzlement.

v. Dye, 29 Cal. App. 169, 154 Pac. 875. 4. Of lottery ticket.

Distinction between larceny and emAs to what amounts to.—Where the bezzlement.-One is guilty of embezzlement proprietor of a bathing place does not take where he honestly receives goods upon trust,

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