13. Whenever in this code the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case must be determined by the court authorized to pass sentence, within such limits as may be prescribed by this code.

1. Sec. 12, n. In People v. Riley, 48 Cal. 549, a judgment sentencing the defendant for a longer period than the statute prescribed, was held erroneous, and was reversed and the proper judgment ordered entered.

14. The various sections of this code which declare that evidence obtained upon the examination of a person as a witness can not be received against him in any criminal proceeding, do not forbid such evidence being proved against such person upon any proceedings founded upon a charge of perjury committed in such examination.

15. A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punish

ments:

1. Death;

2. Imprisonment;

3. Fine;

4. Removal from office; or,

5. Disqualification to hold and enjoy any office of honor, trust, or profit in this state.

1. Crime, Definitions of. —“An act committed or omitted in violation of a public law forbidding or commanding it." 4 Bl. Com. 5.

A breach and violation of the public rights and duties due to the whole community considered as a community, in its several aggregate capacity." Id "An act of disobedience to a law, forbidden under pain of punishment. Steph. Crim. L. 1; Harris Crim. L. 1.

An act which the state absolutely prohibits, or a forbearance from an act which the state absolutely commands to be done, the state making use of such a kind and measure of punishment as may seem needed to render such prohibition or command effectual." Amos on Jurisprudence, 286.

"An act or omission forbidden by law, under threat of punishment." Abbott's Law Dict., title "Crime." See sec. 20, n. 1.

2. Subd. 1. See secs. 37, 190.

3. Subd. 4. See secs. 737-772 inclusive; Constitution, Art. IV, secs. 18, 21; Art. XII, sec. 18.

4. Subd. 5. Constitution, Art. XX, secs. 10, 11.

16. Crimes are divided into:

1. Felonies; and,

2. Misdemeanors.

1. Sec. 17, n. 1.

17. A felony is a crime which is punishable with death, or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime punishable by imprisonment in the state prison is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. [Amendment, approved March 7, 1874; in effect sixtieth day after passage.

1. Felonies and Misdemeanors.-At the common law a felony was a public offense, which occasioned a total forfeiture of either lands or goods, or both, and to which capital or other punishment might have been superadded, according to the degree of guilt. 4 Bl. Com. 95, 96. As distinguished from misdemeanors, felonies comprised originally every species of crime which occasioned the forfeiture of lands and goods. Misdemeanors comprised all other offenses, lower than felonies, which were the subject of indictment. 1 Whart. Crim. L. (8th ed.) secs. 22, 23.

This distinction, although recognized to a limited extent, has generally fallen into disuse, and will, no doubt, in course of time, be entirely abolished. "In modern English legislation, any affected demarcation of crimes by the sort of moral or social significance anciently implied in a felony as contrasted with a misdemeanor, is practically abandoned, though a memory of the distinction is preserved in certain judicial forms. The tendency of all modern legislation is to arrange crimes on no more logical or abstruse principle than that based on either the gravity of the punishment with which they are visited, or the dignity and constitution of the courts of justice in which they are investigated." Amos on Jurisprudence, 302. The intent of this section was to do away with the common law definition of a felony, and to substitute one in its stead which should have significance, and be readily understood. The proper meaning of the section is to declare all crimes (not denominated misdemeanors by statutes creating them) which are punishable by death or imprisonment in the state prison, to be felonies. The definitions here given were adopted at an early date in this state (Stats. 1851, 212); and are the ones generally adopted in most of the United States. Under sections four and five of the act last cited, the question was presented to the supreme court of this state, whether certain acts that were to be punished by impris onment in the state prison or by fine, in the discretion of the court, were to be designated and prosecuted as felonies or as misdemeanors. In the determination of this question, the court referred to the sections cited as follows: "The real objection to this indictment, if there be any, is that the facts set forth do not constitute a public offense, because the punishment prescribed being either imprisonment in the state prison or a fine, it does not appear whether it is a felony or a misdemeanor, and hence it does not necessarily fall within any class of crimes known to the law. The discretion given as to the punishment certainly does not make the same act two offenses, and it would be a singular consequence if the fixing alternative punishments belonging to different classes of crimes should prevent a criminal act from being indictable as any crime. We think, however, there is no uncertainty as to the grade of the crime charged. A felony is a public offense, punishable by death or

by imprisonment in a state prison. Every other public offense is a misdemeanor.' (Act to regulate proceedings in criminal cases, secs. 4, 5.) Under these definitions, any offense which may be or is liable to be punished by death or imprisonment in the state prison is a felony. Any offense which is not liable to such punishment-that is, for which that grade of punishment can not under any circumstances be inflicted-is a misdemeanor. Although the offense charged in this indictment may, in the discretion of the court in any particular case, be only punished by a fine, yet the offense is one which is punishable, which is liable to be punished, by imprisonment in the state prison, and hence it must be prosecuted with the forms and solemnities of a crime of the grade of a felony." People v. War, 20 Cal. 119. To the same effect is People v. Van Steenburgh, 1 Park. Crim. R. 39. When the Penal Code was adopted, sections four and five, just referred to, were re-enacted as section seventeen of that code. At the session of the legislature of 1873-4, section seventeen was amended by adding the following thereto: "When a crime punishable by imprisonment in the state prison is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison." Under section seventeen, as thus amended, it was held, that where a person had been convicted of an offense that was punishable by imprisonment in the state prison or by confinement in the county jail, and a judgment had been rendered sentencing him to the latter, the crime of which he was convicted was only a misdemeanor. People v. Aubrey, 53 Cal. 427. See, also, People v. Cornell, 16 Cal. 187. In Pillsbury v. Brown, 47 Id. 480, a misdemeanor is defined to be, "an act or omission for which a punishment other than death or imprisonment in the state prison is denounced by law-that is, by the will of the supreme power, expressed by statute."

18. Except in cases where a different punishment is prescribed by this code, every offense declared to be a felony is punishable by imprisonment in the state prison, not exceeding five years.

19. Except in cases where a different punishment is prescribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or by both.

20. In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.

1. Union of Act and Intent.—" All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human action either praiseworthy or culpable. Indeed, to make a complete crime, cognizable by human laws, there must be both a will, and an act.

As a vicious will without a vicious act is no civil crime, so, on the

other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will, and secondly, an unlawful act consequent upon such vicious will.' 4 Bl. Com. 20. It is the universal doctrine that to constitute a crime there must concur both an evil act and an evil intent. Actus non reum facit nis. meus sit rea. 1 Bish. Crim. L., secs. 227, 229; 3 Greenl. Ev., sec. 13; People v. Collins, 53 Cal. 185. This maxim, however, applies only to criminal cases in civil matters the rule is otherwise. Vaughan v. Menlove, 3 Bing. N. C. 468. The intent with which a homicide was committed may be proved by di rect or circumstantial evidence tending to establish the fact. People v. Pool. 27 Cal. 572; see sec. 1102, n. 15.

2. Intoxication, Effect of. Sec. 22, n. 1, 2.

3. Insanity. .Sec. 26, n. 4.

21. The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots nor lunatics, nor affected with insanity.

1. Conclusive Presumption.—It is provided in the Code of Civil Procedure that a malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another, shall be conclusively presumed. Sec. 1962, post.

2. Other Presumptions.-By section 1963, Code of Civil Procedure, it is enacted that the following presumptions are to be held satisfactory if uncontradicted, but that they may be controverted by other evidence, viz.: 1. That an unlawful act was done with an unlawful intent; 2. That a person intends the ordinary consequence of his voluntary act. The effect of these statutory rules of evidence is that when the doing of an act which if coupled with a guilty intent would be a violation of law, is proven, the burden of proving the act to have been done without a guilty intent is, in most cases, thrown on the accused. People v. Harris, 29 Cal. 678. These presump

tions, however, are not to be arbitrarily applied. The jury are to accept certain general principles of probable reasoning, which it is the duty of the court to announce, not as binding rules of law, but as logical processes of great value in all questions of evidential induction. Whart. Crim. Ev., sec. 734, et seq.

22. No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.

1. Intoxication, Effect of, on Responsibility for Crime.—The law in this connection may be summed up as follows:

1. Settled insanity, produced immediately by intoxication, affects the responsibility in the same way as insanity produced by any other cause.

2. Insanity immediately produced by intoxication does not destroy responsibility, where the patient, when sane and responsible, made himself voluntarily intoxicated.

3. While intoxication per se is no defense to the fact of guilt, yet when the question of intent or premeditation is concerned, evidence of it is material for the purpose of determining the precise degree. 1 Whart. Crim. L. (7th ed.), sec. 32. An exception to the second rule above given will be found in those cases where the law requires, as it does in some offenses, a specific intent as distinguished from mere general malevolence to render a person guilty. In such cases, the intent to drink, and the drunkenness following, can not supply the place of the specific intent. 1 Bish. Crim. L. sec. 408. Where one passing counterfeit money is too drunk to know it to be counterfeit, and consequently to entertain the intent to defraud, he is not liable criminally. Pigman v. The State, 14 Ohio, 555; United States v. Roudenbush, Baldw. C. C. 514. And where the offense charged was that of assault with intent to commit murder, it was said to be a proper instruction to the jury, that if the defendant's mental faculties were so overcome by intoxication that he was not conscious of. what he was doing; or if he did know what he was doing, but did not know why he was doing it; or did not know that his actions and the means he was using were naturally adapted or calculated to endanger life or produce death, then he had not sufficient capacity to entertain the intent, and in that event they could not infer the intent from his acts. Roberts v. The People, 19 Mich. 401. The following has been stated by the supreme court of California, as a correct exposition of the law applicable to most cases:

"It is a well-settled rule of law that drunkenness is no excuse for the commission of a crime. Insanity, produced by intoxication, does not destroy responsibility, when the party, when sane and responsible, made himself voluntarily intoxicated; and drunkenness forms no defense whatever to the fact of guilt, for when a crime is committed by a party while in a fit of intoxication, the law will not allow him to avail himself of his own gross vice and misconduct to shelter himself from the legal consequences of such crime. Evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of the crime, and for this purpose it must be received with great caution." People v. Lewis, 36 Cal. 531; People v. Williams, 43 Id. 344; People v. Ferris, 55 Cal. 588.

2. People v. Harris, 29 Cal. 678.—The defendant was indicted for voting twice at the general election held Sept. 6, 1865. The evidence showed that the defendant voted at the election polls of the fifth district of San Francisco at about ten o'clock in the forenoon, when, his right to vote was challenged, on the ground that he was not a resident of the district. The challenge being withdrawn, the defendant voted. About two or three o'clock in the afternoon, he returned to the same polls very much intoxicated, and again offered to vote. The same person who had challenged his right to vote at that place in the morning, informed him that he had voted before, and that he would get himself in trouble if he voted again. The defendant, in reply, vehemently protested that he had not voted, and declared his willingness to so make oath. The oath prescribed by the statute was then administered to him by the proper officer, to which he responded in the affirmative, and then voted the second time. Upon trial, defendant was found guilty, and sentenced to imprisonment in the state prison for one year.

The supreme court said: " The theory upon which it was sought to excul