TITLE V. OF CRIMES BY AND AGAINST THE EXECUTIVE POWER OF THE STATE. SECTION 65. Acting in a public capacity without having qualified. 66. Acts of officers de facto not affected. 67. Giving or offering bribes to executive officers. 68. Asking or receiving bribes. 69. Resisting officers. 70. Extortion. 71. Violation of laws prohibiting certain officers from dealing in scrip, etc., and from being interested in contracts. 72. Fraudulently presenting bills or claims to public officers for allowance or payment. 73. Buying appointments to office. 74. Taking rewards for deputation. 75. Exercising functions of office wrongfully. 76. Refusal to surrender books, etc., to successor. 77. Preceding sections to apply to administrative and ministerial officers. 65. Every person who exercises any function of a public office without taking the oath of office, or without giving the required bond, is guilty of a misdemeanor. [Amendment, approved March 30, 1874; in effect July 1, 1874. 1. Oath of Office.-"I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of the office of according to the best of my ability." Cal. Const., sec. 3, art. 20. 2. De Facto Officers, acts of, are not affected by this section. See Sec. 66, n. 66. The last section shall not be construed to affect the validity of acts done by a person exercising the functions of a public office in fact, where other persons than himself are interested in maintaining the validity of such acts. 1. De Facto Officers. See, for a discussion of who are such officers, and the extent to which their acts are valid, the note to Hildreth v. McIntire, 19 Am. Dec. 63; also, Griffin v. Cunningham, 20 Gratt. 43. 67. Every person who gives or offers any bribe to any executive officer of this state, with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer, is punishable by imprisonment in the state prison not less than one nor more than fourteen years, and is disqualified from holding any office in this state. 1. Bribery in criminal law is the offense of giving or taking any undue reward by a person concerned in the administration of justice, or by a public officer, to influence his behavior in his office. 4 Chit. Bl. Com. 139 and note; 1 Russ. on Crimes, 154. See definition of "bribe," ante, sec. 7, subd. 6. The payment, or offer of payment, of any money, emolument, or thing of value by any person to a sheriff for the release of a prisoner in his custody, is bribery. O'Brien v. State, 6 Tex. App. 665. Any attempt to influence an officer in his official conduct, whether in the executive, legislative, or judicial department of the government, by the offer of a reward or pecuniary consideration, is an indictable offense. State v. Ellis, 33 N. J. L. 102. An offer to bribe is sufficient to constitute the crime; an actual tender or production of money is not necessary. People v. Ah Fook, 6 Pac. C. L. J. 1021; Walsh v. The People, 65 Ill. 60. The gift, advantage, or emolument must be bestowed for the purpose of inducing the officer to do a particular act in violation of his duty, or as an inducement to favor, or in some manner aid the person offering it, or some other person in a manner forbidden by law. Hutchinson v. State, 36 Tex. 293. 68. Every executive officer, or person elected or appointed to an executive office, who asks, receives, or agrees to receive any bribe, upon any agreement or understanding that his vote, opinion, or action upon any matter then pending, or which may be brought before him in his official capacity, shall be influenced thereby, is punishable by imprisonment in the state prison not less than one nor more than fourteen years; and, in addition thereto, forfeits his office, and is forever disqualified from holding any office in this state. 69. Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding five years. 1. Resisting Officers.-The obstructing the execution of lawful process an offense against public justice of a very high and presumptuous nature; and more particularly so when the obstruction is of an arrest upon criminal process. So that it has been held that the party opposing an arrest upon criminal process becomes thereby particeps criminis; that is, an accessory in felony and a principal in high treason. 4 Bl. Com. 128; 2 Hawk. P. C., c. 17, sec. 1. In an indictment for resisting an officer, it must be distinctly charged that the person resisted was an officer, and was opposed while acting in such capacity, both of which facts must be proved at the trial. McQuoid v. People, 3 Gilman, 76. The nature of the official duty, the manner of its execution, and the mode of the resistance should be set forth. State v. Burt, 25 Vt. 373. An indictment for assaulting and obstructing an officer in the discharge of his duties as such, averring that the defendant made an assault upon the officer, and, while the latter was in the due and lawful execution of his office, did “unlawfully, knowingly, and designedly hinder and oppose him," etc., was held to be sufficient to show that the defendant knew the person assaulted was an officer. Com. v. Kirby, 2 Cush. 577. A mere allegation that the defendant "resisted" the officer is insufficient, being but a conclusion of law. Lamberton v. State, 11 Ohio, 282; but see United States v. Batchelder, 2 Gall. 15: State v. Hooker, 17 Vt. 658. To constitute the offense, it must appear that the process under which the officer is acting is legal. Com, v. Tobin, 108 Mass. 426; Com. v. Newton, 123 Id. 420; State v. Zeibart, 40 Iowa, 169; People v. Muldoon, 2 Park. Crim. R. 13. The officer must be at the time engaged in executing his duties, and the defendant must be notified thereof; and unless there be notification or knowledge, the killing of the officer in resisting the arrest will not be murder. 1 Whart. Crim. L. (8th ed.), sec. 648; Yates v. People, 32 N. Y. 509. If the defendant can prove that he was ignorant that the party resisted was an officer, this is a defense to the indictment. People v. Muldoon, 2 Park. Crim. R. 13; Yates v. People, 32 N. Y. 509; State v. Belk, 76 N. C. 10; Johnson v. State, 26 Tex. 117. 2. See sec. 148. 70. Every executive or ministerial officer who knowingly asks or receives any emolument, gratuity, or reward, or any promise thereof, excepting such as may be authorized by law, for doing any official act, is guilty of a misdemeanor. [Amendment, approved March 30, 1874; in effect July 1, 1874. 1. Official Extortion. The act of 1850 defined extortion to be the willful or corrupt receiving by any officer of a reward or fee for the discharge of duty other than that allowed by law, or the act of demanding such reward or fee as a condition precedent to the performance of official duty. Stats. 1850, 242, sec. 107. The offense implies the existence of a corrupt mind, and it is not committed when the fee comes voluntarily in return for real benefits conferred by extra exertions put forth. 2 Bish. Crim. L., secs. 326-337. At common law, a proposal by an official to receive a bribe was an indictable offense. Walsh v. People, 65 Ill. 58. If an officer exacts payment of his fee before it is due, it is extortion. Com. v. Bagley, 7 Pick. 279. 71. Every officer or person prohibited by the laws of this state from making or being interested in contracts, or from becoming a vendor or purchaser at sales, or from purchasing scrip, or other evidences of indebtedness, who violates any of the provisions of such laws, is punishable by a fine of not more than one thousand dollars, or by imprisonment in the state. prison not more than five years, and is forever disqualified from holding any office in this state. 72. Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, town, city, ward, or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of felony. 73. Every person who gives or offers any gratuity or reward, in consideration that he or any other person shall be appointed. to any public office, or shall be permitted to exercise or discharge the duties thereof, is guilty of a misdemeanor. 1. Constitutional Provision.-Every person shall be disqualified from holding any office of profit in this state, who shall have been convicted of having given or offered a bribe to procure his election or appointment. Cal. Const., sec. 10, art. 20. 2. Offering Reward for Appointment.-Rex v. Vaughan, 4 Burr. 2494; Rex v. Pollman, 2 Camp. 229; Com. v. Callaghan, 2 Va. Cas. 460; 2 Bish. Crim. L., secs. 190, 191. See sec. 54, n. 1. 74. Every public officer who, for any gratuity or reward, appoints another person to a public office, or permits another person to exercise or discharge any of the duties of his office, is punishable by a fine not exceeding five thousand dollars, and, in addition thereto, forfeits his office and is forever disqualified from holding any office in this state. 75. Every person who willfully and knowingly intrudes himself into any public office to which he has not been elected or appointed, and every person who, having been an executive officer, willfully exercises any of the functions of his office after his term has expired, and a successor has been elected or appointed and has qualified, is guilty of a misdemeanor. 76. Every officer whose office is abolished by law, or who, after the expiration of the time for which he may be appointed or elected, or after he has resigned or been legally removed from office, willfully and unlawfully withholds or detains from his successor, or other person entitled thereto, the records, papers, documents, or other writing appertaining or belonging to his office, or mutilates, destroys, or takes away the same, is punishable by imprisonment in the state prison not less than one nor more than ten years. 77. The various provisions of this chapter apply to administrative and ministerial officers, in the same manner as if they were mentioned therein. An Act relating to the intoxication of officers. SEC. 1. Any officer of a town, village, city, county, or state, who shall be intoxicated while in discharge of the duties of his office, or by reason of intoxication is disqualified for the discharge of or neglects his duties, shall be guilty of a misdemeanor, and on conviction of such misdemeanor shall forfeit his office; and in such case the vacancy occasioned thereby shall be filled in the same manner as if such officer had filed his resignation in the proper office, and it had been accepted by the proper authority; provided, such acceptance shall have been necessary to make the office vacant. SEC. 2. This act shall take effect immediately. [Approved April 15, 1880; Statutes 1880, 77. TITLE VI. OF CRIMES AGAINST THE LEGISLATIVE POWER. SECTION 81. Preventing the meeting or organization of either branch of the legisture. 82. Disturbing the legislature while in session. 83. Altering draft of bill or resolution. 84. Altering enrolled copy of bill or resolution. 85. Giving or offering bribes to members of the legislature. 86. Receiving bribes by members of the legislature. 87. Witnesses refusing to attend, testify, or produce papers before the legislature or committees thereof. 88. Members of the legislature, in addition to other penalties, to forfeit office and be disqualified, etc. 89. Obtaining money or property to influence vote of legislator, a felony. 81. Every person who willfully, and by force or fraud, prevents the legislature of this state, or either of the houses composing it, or any of the members thereof, from meeting or organizing, is guilty of felony. 82. Every person who willfully disturbs the legislature of this state, or either of the houses composing it, while in session, or who commits any disorderly conduct in the immediate view and presence of either house, tending to interrupt its proceedings or impair the respect due to its authority, is guilty of a misdemeanor. 83. Every person who fraudulently alters the draft of any bill or resolution which has been presented to either of the houses composing the legislature, to be passed or adopted, with intent to procure it to be passed or adopted by either house, or certified by the presiding officer of either house, in language different from that intended by such house, is guilty of felony. 84. Every person who fraudulently alters the enrolled copy of any bill or resolution which has been passed or adopted by the legislature of this state, with intent to procure it to be approved by the governor, or certified by the secretary of state, |