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same is proven by the prosecution, beyond a by the governor, and the record of the reasonable doubt, to have been false and county clerk showing that the notary had untrue at the time the same was so sworn taken and subscribed the oath of office in to, or testified to, to the then knowledge of due form, notwithstanding no proof was the defendant, as charged in the informa- made that the notary had given the bond tion, and that the same was material," is

required by the statute.-People v. McLeod, erroneous by reason of the fact that it 30 Cal. App. 435, 158 Pac. 506. submits to the jury the determination of the materiality of the testimony, which is a

$ 182. question of law for the court, but the giving

CONSPIRACY. of the same is not prejudicially erroneous where the jury was by another instruction

1. As to jurisdiction of offense. instructed that all of "the said testimony

2, 3. As to responsibility of each conspira

tor. ... was a material matter and was material evidence and testimony in the same pre

4-7. Indictment or information.

8, 9. Evidence. liminary examination and proceeding."

10-12. -of other crimes. People v. Senegram, 27 Cal. App. 301, 149

13-15. Venue of the crime. Pac. 786.

4. Such instruction is not erroneous in 1. As to jurisdiction of offense. In as instructing the jury that it was not neces- much as the crime is not complete until sary to a conviction that they find all of there has been an overt act, where the the testimony alleged in the indictment to conspiracy originated in the City of Los have been given by the defendant false, but Angeles where the police court has jurisdicthat if any of the matters and things so tion, but the overt acts were consummated sworn to were proven false, such fact would in Pasadena, where the justice's court does justify them in finding the defendant guilty, not have jurisdiction the superior court has in view of the fact that the indictment jurisdiction of the offense. -People v. Cory, charging the offense set forth upward of 26 Cal. App. 735, 148 Pac. 532. thirty answers to as many questions and 2. As to responsibility of each conspiraalleged that each and every one of the

tor.—If several parties conspire or combine answers SO given was false.—People v.

together to commit an unlawful act, each is Senegram, 27 Cal. App. 301, 149 Pac. 786.

criminally responsible for the acts of his 5. Evidence of.—The admission in evi

associates or confederates committed in dence in such a prosecution of a resolution

furtherance of any prosecution of the comof the corporation of which the defendant mon design for which they combine.—People was president removing him from office for

v. Creeks, 170 Cal. 368, 149 Pac. 821. wrongful appropriation of moneys of the

3. Each conspirator is responsible for corporation and otherwise ruining the com

everything done by his confederates which pany, is gross error. —People v. Senegram,

follows incidentally in the execution of the 27 Cal. App. 301, 149 Pac. 786.

common design for which they combine, but

if one member of the party departs from the § 125.

original design as agreed on by all the mem1. Perjury Statement of what not bers and does an act which was not only known to be true.-An instruction in the not contemplated by those who entered into words of this section is not prejudicial even the common purpose, but was not in furthough inapplicable when it is read in con- therance thereof, and not the natural or nection with another instruction in the lan- legitimate consequences of anything conguage of section 118.-People v. Senegram, nected therewith, the person guilty of such 27 Cal. App. 301, 149 Pac. 786.

act, if it was itself unlawful, would alone be responsible therefor.--People v. Creeks,

170 Cal. 368, 149 Pac. 821. 1. Perjury-False return under oath.-An

Indictment or information.-An inforattorney is not subject to conviction for the mation charging the crime of conspiracy as crime of perjury under an information defined in section 182 of the Penal Code, charging him with falsely denying under which alleges that the defendants "unlawoath that he had collected and received a fully and corruptly conspired together and certain sum of money on account of, and in agreed to cheat and defraud" the complainsettlement of, a judgment obtained in an ant, by falsely representing to her that in a action in favor of a client, where it appears distribution of lots for advertising purposes from the proof of the offense that the only that she had drawn a lot which was level, judgment rendered in the action was set tillable and free from rock and that they aside by reason of an error in computation would convey the same to her upon payment of the amount found to be due.--People v. of a small sum of money to cover costs of McLeod, 29 Cal. App. 537, 156 Pac, 970.

deed and abstract, states sufficient facts to 2. In a prosecution for the crime of per- constitute a public offense.—People v. Cory, jury in making false statements in

26 Cal. App. 735, 148 Pac. 532. answer filed to a complaint in a civil action, 5. It is not essential to the statement of it is sufficiently proved that the notary pub- a good charge to aver in the information lic before whom the answer was verified that the complainant was actually possessed was at least a de facto officer at the time of the money out of which she might be dethe oath was administered, by the introduc- frauded, since it is only necessary to charge tion in evidence of the commission issued the agreement of conspiracy, together with

$ 129.

an

a description of some overt act done in pursuance thereof-not that the crime agreed upon was actually accomplished.-People v. Cory, 26 Cal. App. 735, 148 Pac. 532.

6. An indictment charging that defendant acting with others "did unlawfully, willfully, and fraudulently conspire, coinbine, confederate, and agree to obtain the release and discharge from custody" of a prisoner confined in jail and charged with a felony “by presenting to the superior court of the State of California in and for the City and County of San Francisco a fraudulent, worthless, and void bail bond" states facts sufficient to constitute the offense denounced herein.-People v. Ambrose, 31 Cal. App. 460, 160 Pac. 840.

7. In charging a conspiracy to commit an offense, the offense so to be committed need not be set forth with all the particularity that might be required in an indictment charging its commission as a substantive offense, but this does not mean that no particulars whatever need be given.-United States v. Bopp, 230 Fed. 723.

8. Evidence.-A charge of conspiracy may be sustained by circumstantial evidence.People v. Cory, 26 Cal. App. 735, 148 Pac. 532.

9. The prosecution need not prove all the false pretenses alleged; proof of any one of the material matters charged will support a conviction, where the other essential facts are established.--People v. Cory, 26 Cal. App. 735, 148 Pac. 532.

10. of other crimes.-Evidence of similar transactions between the defendant and other persons is admissible in a prosecution for conspiracy to defraud through false representations as to the value of property.People v. Cory, 26 Cal. App. 735, 148 Pac. 532.

11. It is not prejudicial error in such a prosecution to allow proof of statements of one of the conspirators made outside of the presence

of his co-conspirator after proof of the existence of the conspiracy.People v. Cory, 26 Cal. App. 735, 148 Pac. 532.

12. A conviction hereunder is unwarranted where the only evidence adduced as to a defendant to connect him with the conspiracy was that he advised one of his codefendants to become surety on a bond and to swear that he was the owner of property which was recorded in his name but which in fact belonged to the defendant.—People v. Ambrose, 31 Cal. App. 460, 160 Pac. 840.

13. Venue of the crime.--A prosecution may be brought against conspirators in the county where the alleged combination or agreement was entered into. On the other hand, if an overt act in pursuance of the conspiracy is committed in a jurisdiction other than that where the combination was made, the conspirators may be prosecuted in the place where the overt act was committed.-People v. Cory, 26 Cal. App. 735, 148 Pac. 532.

14. The law considers that wherever the conspirators act, there they continue their agreement, and this agreement is continued as to all whenever any one of them does an act in furtherance of the conspiracy.--People v. Cory, 26 Cal. App. 735, 148 Pac. 532.

15. In a conspiracy case, it is sufficient to charge that some of the overt acts occurred at a place within the jurisdiction of the court.-United States v. Aviles, 222 Fed. 474.

TITLE VIII.

OF CRIMES AGAINST THE PERSON.

8 187.

inal act, and the defendant's guilty partici

pation in the perpetration thereof.-People MURDER.

v. Wagner, 29 Cal. App. 363, 155 Pac. 649. 1-4. Corpus delicti.

3. It is not necessary that proof of the 5-9. Evidence-Admissibility.

corpus delicti should be of that conclusive 10. -A memorandum used in framing

and convincing character required to supquestions.

port a conviction, in order to justify the re11-16. -Confessions.

ception in evidence of the extrajudicial 17-19. -Results of experiments.

statements of the defendant, but prima facie 20. -Restrictions on cross-examination.

proof is sufficient for that purpose; nor is 21-26. Instructions.

it essential to such proof and purpose to 1. Corpus delicti.-Before defendant

a

show that the crime charged was comcan be found guilty of murder, the facts

mitted by the defendant.-People v. Wagner, must first be established that the death in

29 Cal. App. 363, 155 Pac. 649. question was brought about by a criminal 4. Where there is evidence, apart from agency other than the act of the deceased. the extrajudicial confessions or admissions of -People v. Tugwell, 28 Cal. App. 348, 152 the defendant, sufficient to fully establish Pac. 740.

the corpus delicti, the refusal to charge the The phrase "corpus delicti" means the jury upon that subject will not constitute body of the offense, the essence of the reversible error.-People v. Wagner, 29 Cal. crime.-People v. Wagner, 29 Cal. App. 363, App. 363, 155 Pac. 649. 155 Pac. 649.

5. Evidence-Admissibility.In a prose2. Proof of the corpus delicti involves cution of a husband for the murder of his two distinct but nevertheless interdependent wife, proof of the pendency of divorce profactors, namely, the commission of a crim- ceedings between them is admissible

as

tending in a measure to show the state of that he voluntarily appeared at the corofeeling existing at and prior to the homi- ner's inquest and confessed his guilt.-Peocide, but it is error to admit in evidence ple v. Burns, 27 Cal. App. 227, 149 Pac. 605. for all purposes the interlocutory decree for

14.

In a prosecution for murder, a statethe deceased on the ground of the defend- ment of guilt made by the defendant to the ant's extreme cruelty. Such error, however, sheriff after arrest is admissible as a volis harmless where there is an abundance of

untary confession, notwithstanding the acother evidence of repeated acts of physical cused was informed by the officer prior to cruelty.--People v. Holloway, 28 Cal. App. the making of the statement that he had in214, 151 Pac. 975.

terviewed other persons also under arrest, 6. It is not prejudicially erroneous in

and had been informed by them that the such a prosecution to admit in evidence the defendant did the killing, and that he aljudgment obtained by the defendant sub- ready had sufficient evidence to convict him, sequent to the death of the wife vesting in and that he ought to tell the truth.--People him the title to the homestead.-People v. v. Burns, 27 Cal. App. 227, 149 Pac. 605. Holloway, 28 Cal. App. 214, 151 Pac. 975.

15. An appellate court will assume that a 7. In a homicide case the defendant may confession was properly admitted where the introduce evidence of declarations made by evidence as to whether it was voluntarily the deceased indicating that suicide was in- made is conflicting.–People v. Tugwell, 28 tended or was in contemplation.—People v. Cal. App. 348. 152 Pac. 740. Tugwell, 28 Cal. App. 348, 152 Pac. 740.

16. A confession made by one accused of 8. Letters from a woman since deceased a homicide to the sheriff may be properly to her husband are not admissible in the

admitted in evidence when it has been deprosecution of another person for her mur- termined by the court that the confession der.-People v. Pitisci, 29 Cal. App. 727, 157 was made voluntarily and without any imPac. 502.

proper inducement.-People v. Andrade, 29 9. Where in a prosecution for homicide Cal. App. 1, 154 Pac. 283. the state was permitted over objection to 17. -Results of experiments.-While the impeach the testimony of the defendant as admission of evidence showing the results of to his age, and at a later stage in the trial experiments is largely within the discretion such impeaching testimony was stricken of the trial court, nevertheless the admisout, any prejudicial effect in admitting such sion of such evidence is regulated, and testimony, conceding its admission to have

must be controlled by the well-settled rule been erroneous, was rendered harmless by that it must first be shown that the experithe later ruling.--People v. Ponchetta, 30 ments were made under conditions and cirCal. App. 399, 158 Pac, 338.

cumstances essentially the same as those 10. -A memorandum used

in

asking which existed when the alleged occurrence questions. It is not error for the court to took place.-People v. Wagner, 29 Cal. App. refuse to order the district attorney to file 363, 155 Pac. 649. as an exhibit the paper which he has been 18. Evidence of the result of experiments using as a memorandum in framing his in shooting at blocks of wood representing questions to the defendant concerning con- the deceased might be material in a proseversation held shortly after the latter's ar- cution for homicide. -People v. Wagner, 29 rest, where the writing is stated to contain Cal. App. 363, 155 Pac. 649. the officer's private memoranda of the in

The question whether the conditions terview and it is offered to opposing counsel and circumstances attending the making of for inspection.-People v. Coutcure, 171 Cal. experiments were substantially similar to 44, 151 Pac. 659.

those attending the commission of the crime 11. -Confessions.--The rule respecting is in the first instance a question of facts extrajudicial confessions is that evidence of to be determined by the trial judge before such confessions is never admissible unless ruling upon the admissibility of the exthe prosecution shows, previously to its re- periments, but the court's determination of ception, that they were freely and volun- that question is not conclusive upon the tarily made and without any previous in- jury.-People v. Wagner, 29 Cal. App. 363, ducement or offer of leniency in punishment 155 Pac. 649. or by reason of any intimidation or threat. 20. -Restriction of cross-examination.- People v. Burns, 27 Cal. App. 227, 149 Pac. In a homicide case it is not prejudicial 605.

error to restrict the cross-examination of a As to confessions and their admissibility witness for the people, who testified to havin evidence, see post, Pen. C. pt., $ 1102, note ing witnessed the shooting, as to how near pars, 1-4.

the witness was to the defendant when he 12. Whether a confession is free and passed him, after the witness had been subvoluntary is a preliminary question ad- jected to an extended cross-examination as dressed to the trial court to be determined to the direction in which the defendant ran by it, and a considerable measure of dis- immediately after the shooting.–People v. cretion must be allowed that court in deter- Lim Foon, 29 Cal. App. 270, 155 Pac. 477. mining it.-People v. Burns, 27 Cal. App. 21. Instructions.—An instruction that all 227, 149 Pac. 605.

persons concerned in the commission of a 13. The defendant in a prosecution for crime, whether they directly commit the act murder is not prejudiced by the admission constituting the offense, or aid and abet in in evidence of a confession made by him, its commission, are principals in the crime, even if it is voluntary, where it is shown is a correct statement of law, as is also an

19.

of

instruction that one who aids, abets and assists a convict confined in the state prison for a term less than life to escape therefrom is guilty a felony.-People v. Creeks, 170 Cal. 368, 149 Pac. 821.

22. An instruction that in dividing murder into two degrees, the legislature intended to assign to the first, as deserving of greater punishment, "all murders of a cruel and aggravated character," and to the second all other kinds which are murder at common law, and to prescribe a test by which the degree of every case of murder may be readily ascertained, is not subject to the objection that it in effect defines murder of the first degree as including ail murders of a cruel and aggravated character, where the test is subsequently stated, and it is made to appear that the defendant could not be convicted of murder in the first degree, unless the killing was willful. deliberate and premeditated. - People V. Kromphold, 172 Cal. 512, 157 Pac. 599.

23. An instruction that the plea of selfdefense is not available to a defendant who has sought a quarrel with a design to force a deadly issue and thus by his own wrongful acts creates a real or apparent necessity for killing his adversary, is a correct abstract statement of law.-People v. Burns, 27 Cal. App. 227, 149 Pac. 605. 24.

In a prosecution for murder, the refusal of requested instructions correctly stating the law of circumstantial evidence is not error where the record discloses that the prosecution did not rely upon circumstantial evidence alone or chiefly to obtain the defendant's conviction.-People v. Gorman, 31 Cal. App. 762, 161 Pac. 757.

25. In such a prosecution it is not error to refuse to instruct upon the subject of conspiracy where there was little or no evidence to support the instruction.-People v. Gorman, 31 Cal. App. 762, 161 Pac. 757.

26. An instruction that if the evidence fails to show any motive on the part of the defendant consistent with reason and soundness of mind to commit the crime charged, such is a circumstance in favor of his innocence, and should be considered by the jury in connection with the other evidence in the case, is properly refused.-People v. Gorman, 31 Cal. App. 762, 161 Pac. 757.

of the execution of that crime.- People v. Bostic, 167 Cal. 754, 141 Pac. 380.

2. Where death results from the performance of an unlawful abortion the crime is murder in the second degree.-People v. Wright, 167 Cal. 1, 138 Pac. 349.

3. An instruction that where the killing is done in the perpetration or attempt to perpetrate one of the felonies specified in section 189 of the Penal Code, the jury has no option but to find the killing to be murder in the first degree, is proper.-People v. Witt, 170 Cal. 104, 148 Pac. 928.

§ 190.

1. Determining punishment for murder.The determination of the jury under the provisions of section 190 of the Penal Code as to whether the punishment of a defendant convicted of murder shall be that of death or of life imprisonment is to be made solely on such evidence as is admissible on the issues made by the indictment or information and the plea of the defendant, and evidence not otherwise relevant or material, such as the character and habits of the defendant, is not admissible for such purpose. -People v. Witt, 170 Cal. 104, 148 Pac. 928.

8 192.

1. Manslaughter defined.- Manslaughter is the unlawful killing of a human being without malice.--People v. Wilson, 29 Cal. App. 563, 156 Pac. 377.

2. While involuntary manslaughter may be committed in two different ways there is no distinction in the degree of turpitude characterizing the crime. In other words the crime is the same whether the killing be committed in the execution of an unlawful act, etc., or in the execution of a lawful act, etc., or where death, not willfully or intentionally produced, is nevertheless caused hy the gross or culpable negligence of the defendant-negligence which, in degree, goes far beyond that negligence merely which suffices to impose a civil liability for damages as to constitute it criminal negligence for which the party guilty of it may be held criminally liable.-People v. Sidwell, 29 Cal. App. 12, 154 Pac. 290.

$ 188.
1. Malice defined-Construction of

section.—The malice defined here is that neces. sary to constitute murder, and is not the same malice as defined in subdivision 4 of section 7. There can, however, be no prejudicial error in giving both definitions in a prosecution for murder.--People v. Harris, 169 Cal. 53, 145 Pac. 520.

§ 197.

1. Justifiable homicide Self-defense. Self-defense need only be established by a preponderance of the evidence; it need not be proved beyond a reasonable doubt.—People v. Pitisci, 29 Cal. App. 727, 157 Pac. 502.

8207.

1. Kidnapping-Elements of offense.--It is not necessary that the purpose charged in the information be accomplished in order to make it effectual as an element of the crime; all that is required is that some overt act be done toward the execution of the purpose and the fulfillment of the intent.—People v. Fisher, 30 Cal. App. 135, 157 Pac. 7.

$ 189.

1. Degrees of murder-Construction of section. This is not meant to apply only to such a murder as would be included in the scheme of robbery and planned as a part

8 211.

ROBBERY. 1-3. Evidence.

4. Instructions.

1. Evidence.-In a prosecution for robbery it is prejudicial error to refuse to permit the defendant in surrebuttal to recall a witness for the prosecution who had testified to the presence of the defendant at a certain place on the day of the crime, for the purpose of permitting the witness to modify her former testimony by admitting that she had been mistaken as to the date. -People v. Renwick, 31 Cal. App. 774, 161 Pac. 1002.

2. In a prosecution for the crime of robbery of a butcher shop, it is error to permit testimony showing that the defendant or some of his associates had stolen the automobile of the witness and were using it at the time of the robbery of the butcher shop.—People v. Renwick, 31 Cal. App. 774, 161 Pac. 1002.

3. In a prosecution for robbery the defendant is not prejudiced by the sustaining of objections to questions asked a witness for the defense, who was jointly charged as a participant in the crime, as to whether or

not the district attorney's office had promised the witness immunity from prosecution, if he changed his testimony from that given at the two former trials of the case, in the absence of any showing that the witness' testimony was influenced in any way or that he testified other than truthfully.People v. Allen, 32 Cal. App. 110, 162 Pac. 401. 4. Instructions.—Where

the

indictment alleged the offense to have been committed by means of force and fear, an instruction that the jury could find a verdict of guilty if they found that the crime was committed by means of "force or fear" (the latter being the statutory words used in defining the offense) is not erroneous.-People V. Ferrara, 31 Cal. App. 1, 159 Pac. 621.

8 220.

1. Assault to rob -Proof necessary Under an information charging the crime of assault with intent to commit robbery by means of a loaded revolver, it is not essential to a conviction that the prosecution should prove that the assault was made with that particular weapon.-People v. McInerney, 30 Cal. App. 283, 158 Pac. 128.

CHAPTER X.

LIBEL,

8 259. Newspaper articles of personal character must be signed. Penalty for violation. Name

of author of book or news agency sufficient (repealed].

$ 248.

1. Libel-Impeaching reputation. The publication of an article in a newspaper charging the members of the fourth degree of a fraternal organization known and called the Knights of Columbus with the taking of an oath which is in itself a violation of their oath of allegiance and of the essential duties and bonds of American citizenship impeaches the reputation of such members and exposes them to those attitudes of public feeling defined in section 248 of the Penal Code.—People v. Turner, 28 Cal. App. 766, 154 Pac. 34.

2. -Libel of a class.-The fact that such libel is applicable to a class or generally to all of the members of the degree and has no individual application does not render it not libelous.—People v. Turner, 28 Cal. App. 766, 154 Pac. 34.

other citizen, and a public journal or an individual who indulges in defamatory assertions about candidates for office is equally responsible for his acts with those who commit the same offense against private individuals; such libelous matter published against a candidate for a public office is not a privileged communication.-People v. Turner, 28 Cal. App. 766, 154 Pac. 34.

2. -Instructions. The fact that such publication was made for the purpose of enabling the voters at an approaching election to cast their ballots more intelligently, and that the publication was therefore privileged, under section 256 of the Penal Code, is not a sufficient ground for reversal of the judgment of conviction in a prosecution for such a libel, where no instruction was requested or given upon the subject of privileged communications of the sort defined by that section, and the defendant relied upon such form of privilege in presenting his defense.—People v. Turner, 28 Cal. App 766, 154 Pac. 34.

$ 256. 1. Libel-Against candidate for public office.- A candidate for office is as much entitled to protection from defamation as any

8 259. NEWSPAPER ARTICLES OF PERSONAL CHARACTER MUST BE SIGNED. PENALTY FOR VIOLATION. NAME OF AUTHOR OF BOOK OR NEWS AGENCY SUFFICIENT [repealed].

History: Enactment approved March 20, 1899, Stats. and Amdts. 1899, p. 155; repealed April 24, 1917, Stats. and Amdts. 1917, p. 174. In effect July 27, 1917.

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