5.

When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace. [C. L. § 4461*.

Cal. Pen. C. ? 197*.

Lawful resistance, ?? 4517-4519.

SELF DEFENSE. Where the defendant seeks the deceased with the intention of having a difficulty with him, he is required to decline in good faith any further difficulty before killing the deceased, and if he does wrongfully bring on the difficulty, and does not in good faith decline any further difficulty, he cannot justify himself on the grounds of self defense. People v. Hite, 8 U. 461; 33 P. 254.

The instruction given, held to correctly state the law of self defense. People v. Callaghan, 6 P. 49.

U. 49;

SUBDV. 3. Section 4461, C. L. 1888, does not justify homicide committed after twenty-four hours' deliberation over the fact of a wife's adultery, defendant having gone a considerable distance to seek deceased. People v. Halliday, 5 U. 467; 17 P. 118.

4169. Bare fear does not justify killing. A bare fear of the commission of any of the offenses mentioned in subdivisions two and three of the preceding section, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted wholly under the influence of such fears. [C. L. § 4462.

Cal. Pen. C. 198.

4170. Justifiable or excusable homicide not punishable. When the homicide appears to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged. [C. L. § 4463.

Cal. Pen. C. 199.

Burden of proving homicide justifiable or excusable, 4856.

CHAPTER 15.

MAYHEM.

4171. Mayhem defined. Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables or renders it useless, or who cuts out or disables the tongue, puts out an eye, slits the nose, ear, or lip, is guilty of mayhem. [C. L. § 4464.

Cal. Pen. C. 203*.

Assault with intent to commit, ? 4179.

4172. Id. Penalty. Mayhem is punishable by imprisonment in the state prison not exceeding ten years. [C. L. § 4465.

Cal. Pen. C. 204*.

CHAPTER 16.

KIDNAPING.

4173. Kidnaping defined. Penalty. Every person who wilfully: 1. Seizes, confines, inveigles, or kidnaps another with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of the state, or in any way held to service or kept or detained against his will; or,

2. Leads, takes, entices away, or detains a child under the age of twelve years with intent to keep or conceal it from its parent, guardian, or other person having the lawful care or control thereof, or to extort or obtain money or reward for the return or disposition of the child, or with intent to steal any article about or on the person of the child; or,

3. Abducts, entices, or by force or fraud unlawfully takes or carries away another, at or from a place without the state, or procures or advises, aids or abets such an abduction, enticing, taking, or conveying away, and afterwards sends, brings, has, or keeps such person, or causes him to be kept or secreted within this state, is guilty of kidnaping, and is punishable by imprisonment in the state prison not less than one nor more than ten years.

Mont. Pen. C. 2 380.

Jurisdiction of indictment for kidnaping, ?4591.

4174. Consent of person kidnapped no defense. Upon a trial for a violation of the offense mentioned in the next preceding section, the consent of the person kidnapped or confined is not a defense, unless it appear that such person was above the age of twelve years, and that the consent was not extorted by threats or duress.

Mont. Pen. C. 382.

CHAPTER 17.

ROBBERY.

4175. Robbery defined. Robbery is the felonious taking of personal property in the possession of another, from his person, or immediate presence, and against his will, accomplished by means of force or fear. [C. L. § 4468.

Cal. Pen. C. 211.

Assault with intent to commit, 4179. Indictment when property taken to another county, ? 4592. Jurisdiction when committed without state and property brought within, 4072. Information or indictment may also contain a count for larceny, ? 4734.

Indictment charging a felonious taking by defendant by means of force, violence, and fear from the immediate presence of and against the will of

a party, is sufficient to charge robbery, where no objection was taken until after verdict. People v. Kerm, 8 U. 268; 30 P. 988.

Where a man under bona fide belief that the property is his own obtains it by menaces, there is trespass but no robbery. People v. Hughes, 11 U. 100; 39 P. 492.

The defendant may testify that at the time of the alleged robbery he thought the money was his own, and that he had a right to take it. Id.

4176. Id. Punishment. Robbery is punishable by imprisonment in the state prison for a term not less than three years nor more than twenty years. [C. L. § 4469*; '90, p. 95.

Cal. Pen. C. 213*.

CHAPTER 18.

ATTEMPTS TO KILL.

4177. Administering poison. Every person who, with intent to kill, administers, or causes or procures to be administered to another, any poison or other noxious or destructive substance or liquid, but by which death is not caused, is punishable by imprisonment in the state prison not less than five nor more than twenty years. [C. L. § 4470*.

Cal. Pen. C. 216*.

food or drink, penalty, 4268. "Attempt" defined, penalty, 4495, 4496.

Homicide, 4159-4170. Mingling poison with 4178. Assault' with intent to murder. 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 twenty years. [C. L. § 4471*.

CHAPTER 19.

FELONIOUS ASSAULTS.

4179. Assault with intent to commit rape, etc. Every person who assaults another with intent to commit rape, the infamous crime against nature, mayhem, or robbery, is punishable by imprisonment in the state prison not less than one nor more than ten years. [C. L. § 4472.

Cal. Pen. C. ? 220*.

Assault with intent to commit murder, 4178. Assault, 4190. Assault with deadly weapon, 4195. 4180. Assault with intent to commit other felony. Exceptions. Every person who is guilty of an assault with intent to commit any felony, except an assault with intent to commit murder, and except assaults enumerated in the next 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 three hundred dollars, or by both. [C. L. § 4473.

Cal. Pen. C. 221*.

Attempts, penalties, ?? 4495, 4496.

4181. Administering narcotics to further felony. 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. [C. L. § 4474.

Cal. Pen. C. ? 222*.

Administering narcotics, etc., to accomplish rape, ? 4217.

CHAPTER 20.

DUELS AND CHALLENGES.

4182. Duel defined. A duel is any combat with deadly weapons fought between two or more persons, by previous agreement or upon a previous quarrel. [C. L. § 4475.

Cal. Pen. C. 225.

Leaving state to engage in duel, jurisdiction, ?? 4582, 4583.

4183. Murder, when death ensues. Every person guilty of fighting any duel, from which death ensues within a year and a day, is guilty of murder in the first degree. [C. L. § 4476.

Cal. Pen. C. 226*.

4184. Dueling punishable though no death or wound ensues. Every person guilty of fighting any duel, although no death or wound ensues, is punishable by imprisonment in the state prison not exceeding one year. [C. L. $ 4477.

Cal. Pen. C. 22 227*, 228*.

4185. Sending or accepting challenge, etc. Seconds. Every person guilty of sending or accepting a challenge to fight a duel, or who acts as a second therein, or 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. [C. L. § 4478.

Cal. Pen. C. 227*. 228*, 229*.

4186. Officer failing to prevent a duel. 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 a fine not exceeding five hundred dollars. [C. L. § 4479.

Cal. Pen. C. 230*.

4187. Testimony must be given though incriminating. 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. [C. L. § 4480.

Cal. Pen. C. 232*.

CHAPTER 21.

FALSE IMPRISONMENT.

4188. False imprisonment defined. False imprisonment is the unlawful violation of the personal liberty of another. [C. L. § 4481.

Cal. Pen. C. 236.

4189. Id. Penalty. False imprisonment is punishable by fine not exceeding three thousand dollars, or by imprisonment in the county jail not more than one year, or by both. [C. L. § 4482.

Cal. Pen. C. 237*.

4190.

CHAPTER 22.

ASSAULT AND BATTERY.

Assault defined. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. [C. L. § 4483.

Cal. Pen. C. 240.

Felonious assaults, 22 4178-4181.

4191. Id. Penalty. An assault is punishable by fine in any sum less than three hundred dollars, or by imprisonment in the county jail not exceeding three months. [C. L. § 4484.

Cal. Pen. C. 2 241*.

4192. Battery defined. A battery is any wilful and unlawful use of force or violence upon the person of another. [C. L. § 4485.

Cal. Pen. C. 242.

sault and shooting with a pistol, charges a battery. People v. Chalmers, 5 U. 201; 14 P. 131.

Indictment alleging unlawful and felonious as4193. Id. Penalty. A battery is punishable by a fine in any sum less than three hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both. [C. L. § 4486.

Cal. Pen. C. 243*.

4194. Assault with caustic chemical. Every person who wilfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of such person, is punishable by imprisonment in the state prison not less than one nor more than ten years. [C. L. § 4487.

Cal. Pen. C. 244*.

4195. Assault with deadly weapon. Every person who, with intent to do bodily harm, and without just cause or excuse, or when no considerable provocation appears, or when the circumstances show an abandoned or malignant heart, commits an assault upon the person of another, with a deadly weapon, instrument, or other thing, is punishable by imprisonment in the state prison not exceeding five years, or by fine not exceeding one thousand dollars, or by both. [C. L. § 4488*.

Cal. Pen. C. 245.

Having deadly weapon with intent to assault another, 4340. Exhibiting deadly weapon in angry and threatening manner, 4312.

Indictment under section 4488, C. L. 1888, must allege act to have been committed "without just cause or excuse." People v. Fairbanks, 7 U. 3; 24 P. 538. People v. Parman, 7 U. 7; 24 P. 539.

CHAPTER 23.

CRIMINAL LIBEL AND SLANDER.

4196. Libel defined. A libel is a malicious defamation, expressed either by printing, or by signs, or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation, or publish the natural defects, of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule. [C. L. § 4489.

Cal. Pen. C. 248*.

Imputing unchastity to females, ?? 4206, 4207.

A candidate for a public office is amenable to public and private criticism made in good faith and based upon a reasonable and practical cause,

and when he becomes such a candidate he is regarded in law as putting his character in issue in respect to his qualifications and fitness for the office for which he is a candidate. People v. Glasmann, 12 U. 238; 42 P. 956.

4197. Id. Penalty. Every person who wilfully, and with a malicious intent to injure another, publishes or procures to be published any libel, is punishable by fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year. [C. L. § 4490.

Cal. Pen. C. ? 249*.

4198.

Libel presumed malicious. An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown. [C. L. § 4491:

Cal. Pen. C. 250.

4199. Truth may be given in evidence. Jury to determine law and fact. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and, if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. The jury shall have the right to determine the law and the fact. [C. L. § 4492.

Cal. Pen. C. 251.

Constitutional provisions, Con. art. 1, sec. 15. In a prosecution for criminal libel of a candidate for public office, the evidence upon which the publication was made is admissible to rebut malice. People v. Glasmann, 12 U. 238; 42 P. 956.

the jury, the court said: "If the matter is false and not shown to be true there can be no justification for it; there is none in a case of this character"; held, error. Id.

When a grand jury is investigating as to whether a libel has been published, the facts as to whether the publication was true or false and the motive for its publication are "material matters" hereunder. People v. Greenwell, 5 U. 112; 13 P. 89.

Where a publication referred to the record in s criminal case to support certain defamatory statements, the testimony given in said case is admissible in a prosecution for libel to show that the publication was a fair report of said testimony. People v. Glasmann, 12 U. 238; 42 P. 956.

In a prosecution for criminal libel during the proceedings of the trial the court said: "Now then, the defendants in this case are charged with publishing certain matter with respect to a citizen of this town which is libel. It is libelous by its terms and charges not only crimes but charges matters which are intended to make a man infamous and ridiculous in the eyes of the community," to which defendants took exception, and in the charge to 4200. Libel need not be seen or read. To sustain a charge of publishing a libel it is not needful that the words or things complained of should have been read or seen by another. It is enough that the accused knowingly parted