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same is proven by the prosecution, beyond a reasonable doubt, to have been false and untrue at the time the same was so sworn to, or testified to, to the then knowledge of the defendant, as charged in the information, and that the same was material," is erroneous by reason of the fact that it submits to the jury the determination of the materiality of the testimony, which is a question of law for the court, but the giving of the same is not prejudicially erroneous where the jury was by another instruction instructed that all of "the said testimony ... was a material matter and was material evidence and testimony in the same preliminary examination and proceeding."People v. Senegram, 27 Cal. App. 301, 149 Pac. 786.

4. Such instruction is not erroneous in instructing the jury that it was not necessary to a conviction that they find all of the testimony alleged in the indictment to have been given by the defendant false, but that if any of the matters and things so sworn to were proven false, such fact would justify them in finding the defendant guilty, in view of the fact that the indictment charging the offense set forth upward of thirty answers to as many questions and alleged that each and every one of the answers SO given was false. People v. Senegram, 27 Cal. App. 301, 149 Pac. 786.

5. Evidence of. The admission in evidence in such a prosecution of a resolution of the corporation of which the defendant was president removing him from office for wrongful appropriation of moneys of the corporation and otherwise ruining the company, is gross error.-People v. Senegram, 27 Cal. App. 301, 149 Pac. 786.

§ 125.

1. Perjury -Statement of what not known to be true.-An instruction in the words of this section is not prejudicial even though inapplicable when it is read in connection with another instruction in the language of section 118.-People v. Senegram, 27 Cal. App. 301, 149 Pac. 786.

§ 129.

1. Perjury-False return under oath.-An attorney is not subject to conviction for the crime of perjury under an information charging him with falsely denying under oath that he had collected and received a certain sum of money on account of, and in settlement of, a judgment obtained in an action in favor of a client, where it appears from the proof of the offense that the only judgment rendered in the action was set aside by reason of an error in computation of the amount found to be due.-People v. McLeod, 29 Cal. App. 537, 156 Pac. 970.

2. In a prosecution for the crime of perjury in making false statements in an answer filed to a complaint in a civil action, it is sufficiently proved that the notary public before whom the answer was verified was at least a de facto officer at the time the oath was administered, by the introduction in evidence of the commission issued

by the governor, and the record of the county clerk showing that the notary had taken and subscribed the oath of office in due form, notwithstanding no proof was made that the notary had given the bond required by the statute.-People v. McLeod, 30 Cal. App. 435, 158 Pac. 506.

§ 182.

CONSPIRACY.

1. As to jurisdiction of offense.

2, 3. As to responsibility of each conspirator.

4-7. Indictment or information. 8, 9. Evidence.

10-12. Of other crimes. 13-15. Venue of the crime.

1.

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As to jurisdiction of offense. much as the crime is not complete until there has been an overt act, where the conspiracy originated in the City of Los Angeles where the police court has jurisdiction, but the overt acts were consummated in Pasadena, where the justice's court does not have jurisdiction the superior court has Jurisdiction of the offense.-People v. Cory, 26 Cal. App. 735, 148 Pac. 532.

2. As to responsibility of each conspirator. If several parties conspire or combine together to commit an unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine.-People v. Creeks, 170 Cal. 368, 149 Pac. 821.

3. Each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of the common design for which they combine, but if one member of the party departs from the original design as agreed on by all the members and does an act which was not only not contemplated by those who entered into the common purpose, but was not in furtherance thereof, and not the natural or legitimate consequences of anything connected therewith, the person guilty of such act, if it was itself unlawful, would alone be responsible therefor.-People v. Creeks, 170 Cal. 368, 149 Pac. 821.

4. Indictment or information.—An information charging the crime of conspiracy as defined in section 182 of the Penal Code, which alleges that the defendants "unlawfully and corruptly conspired together and agreed to cheat and defraud" the complainant, by falsely representing to her that in a distribution of lots for advertising purposes that she had drawn a lot which was level, tillable and free from rock and that they would convey the same to her upon payment of a small sum of money to cover costs of deed and abstract, states sufficient facts to constitute a public offense.-People v. Cory, 26 Cal. App. 735, 148 Pac. 532.

5. It is not essential to the statement of a good charge to aver in the information that the complainant was actually possessed of the money out of which she might be defrauded, since it is only necessary to charge the agreement of conspiracy, together with

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, combine, 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.

§ 187.

TITLE VIII.

OF CRIMES AGAINST THE PERSON.

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inal act, and the defendant's guilty participation in the perpetration thereof.-People v. Wagner, 29 Cal. App. 363, 155 Pac. 649.

3. It is not necessary that proof of the corpus delicti should be of that conclusive and convincing character required to support a conviction, in order to justify the reception in evidence of the extrajudicial statements of the defendant, but prima facie proof is sufficient for that purpose; nor is it essential to such proof and purpose to that the crime charged was committed by the defendant.-People v. Wagner, 29 Cal. App. 363, 155 Pac. 649.

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1. Corpus delicti.-Before a can be found guilty of murder, the facts must first be established that the death in question was brought about by a criminal agency other than the act of the deceased. -People v. Tugwell, 28 Cal. App. 348, 152 Pac. 740.

The phrase "corpus delicti" means the body of the offense, the essence of the crime. People v. Wagner, 29 Cal. App. 363, 155 Pac. 649.

2. Proof of the corpus delicti involves two distinct but nevertheless interdependent factors, namely, the commission of a crim

4. Where there is evidence, apart from the extrajudicial confessions or admissions of the defendant, sufficient to fully establish the corpus delicti, the refusal to charge the jury upon that subject will not constitute reversible error.-People v. Wagner, 29 Cal. App. 363, 155 Pac. 649.

5. Evidence-Admissibility. In a prosecution of a husband for the murder of his wife, proof of the pendency of divorce proceedings between them is admissible as

tending in a measure to show the state of feeling existing at and prior to the homicide, but it is error to admit in evidence for all purposes the interlocutory decree for the deceased on the ground of the defendant's extreme cruelty. Such error, however, is harmless where there is an abundance of other evidence of repeated acts of physical cruelty. People v. Holloway, 28 Cal. App. 214, 151 Pac. 975.

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6. It is not prejudicially erroneous such a prosecution to admit in evidence the judgment obtained by the defendant subsequent to the death of the wife vesting in him the title to the homestead.-People v. Holloway, 28 Cal. App. 214, 151 Pac. 975.

7. In a homicide case the defendant may introduce evidence of declarations made by the deceased indicating that suicide was intended or was in contemplation.-People v. Tugwell, 28 Cal. App. 348, 152 Pac. 740.

8. Letters from a woman since deceased to her husband are not admissible in the prosecution of another person for her murder.-People v. Pitisci, 29 Cal. App. 727, 157 Pac. 502.

9. Where in a prosecution for homicide the state was permitted over objection to impeach the testimony of the defendant as to his age, and at a later stage in the trial such impeaching testimony was stricken out, any prejudicial effect in admitting such testimony, conceding its admission to have been erroneous, was rendered harmless by the later ruling.-People v. Ponchetta, 30 Cal. App. 399, 158 Pac. 338.

10. -A memorandum used in asking questions. It is not error for the court to refuse to order the district attorney to file as an exhibit the paper which he has been using as a memorandum in framing his questions to the defendant concerning a conversation held shortly after the latter's arrest, where the writing is stated to contain the officer's private memoranda of the interview and it is offered to opposing counsel for inspection.-People v. Coutcure, 171 Cal. 44, 151 Pac. 659.

11. -Confessions.-The rule respecting extrajudicial confessions is that evidence of such confessions is never admissible unless the prosecution shows, previously to its reception, that they were freely and voluntarily made and without any previous inducement or offer of leniency in punishment or by reason of any intimidation or threat. -People v. Burns, 27 Cal. App. 227, 149 Pac. 605.

As to confessions and their admissibility in evidence, see post, Pen. C. pt., § 1102, note pars. 1-4.

12. Whether a confession is free and voluntary is a preliminary question addressed to the trial court to be determined by it, and a considerable measure of discretion must be allowed that court in determining it.-People v. Burns, 27 Cal. App. 227, 149 Pac. 605.

13. The defendant in a prosecution for murder is not prejudiced by the admission in evidence of a confession made by him, even if it is voluntary, where it is shown

that he voluntarily appeared at the coroner's inquest and confessed his guilt.-People v. Burns, 27 Cal. App. 227, 149 Pac. 605.

14. In a prosecution for murder, a statement of guilt made by the defendant to the sheriff after arrest is admissible as a voluntary confession, notwithstanding the accused was informed by the officer prior to the making of the statement that he had interviewed other persons also under arrest, and had been informed by them that the defendant did the killing, and that he already had sufficient evidence to convict him, and that he ought to tell the truth.-People v. Burns, 27 Cal. App. 227, 149 Pac. 605.

15. An appellate court will assume that a confession was properly admitted where the evidence as to whether it was voluntarily made is conflicting.-People v. Tugwell, 28 Cal. App. 348, 152 Pac. 740.

16. A confession made by one accused of a homicide to the sheriff may be properly admitted in evidence when it has been determined by the court that the confession was made voluntarily and without any improper inducement.-People v. Andrade, 29 Cal. App. 1, 154 Pac. 283.

17. -Results of experiments.-While the admission of evidence showing the results of experiments is largely within the discretion of the trial court, nevertheless the admission of such evidence is regulated, and must be controlled by the well-settled rule that it must first be shown that the experiments were made under conditions and circumstances essentially the same as those which existed when the alleged occurrence took place.-People v. Wagner, 29 Cal. App. 363, 155 Pac. 649.

18. Evidence of the result of experiments in shooting at blocks of wood representing the deceased might be material in a prosecution for homicide.-People v. Wagner, 29 Cal. App. 363, 155 Pac. 649.

19. The question whether the conditions and circumstances attending the making of experiments were substantially similar to those attending the commission of the crime is in the first instance a question of facts to be determined by the trial judge before ruling upon the admissibility of the experiments, but the court's determination of that question is not conclusive upon the jury. People v. Wagner, 29 Cal. App. 363, 155 Pac. 649.

20. -Restriction of cross-examination.— In a homicide case it is not prejudicial error to restrict the cross-examination of a witness for the people, who testified to having witnessed the shooting, as to how near the witness was to the defendant when he passed him, after the witness had been subjected to an extended cross-examination as to the direction in which the defendant ran immediately after the shooting.-People v. Lim Foon, 29 Cal. App. 270, 155 Pac. 477.

21. Instructions.-An instruction that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, are principals in the crime, is a correct statement of law, as is also an

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 of 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 Kromphold, 172 Cal. 512, 157 Pac. 599.

V.

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.

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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.

§ 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 by 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.

§ 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.

§ 207.

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.

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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.

$ 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.

§ 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.

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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.

§ 259. NEWSPAPER ARTICLES OF PERSONAL CHARACTER MUST

BE SIGNED. PENALTY FOR VIOLATION.
NEWS AGENCY SUFFICIENT [repealed].

NAME OF AUTHOR OF BOOK OR

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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