Assault, how

criminal connection with her, she making no resistance, from a bona fide belief that the defendant was treating her medically, as he represented he was doing. Held, he was properly convicted of an assault, and might have been of rape.-Reg. vs. Case, 4 Cox Cr. Cas., p. 220; 1 Den. C. C., p. 580.

241. (§ 49.) An assault is punishable by fine not punished. exceeding five hundred dollars, or by imprisonment in the County Jail not exceeding three months.

Battery defined.

Battery, how punished.

Assaults with caustic chemicals.

Assaults with deadly weapons.

NOTE.-Stats. 1856, p. 219, Sec. 5.

242. (§ 51.) A battery is any willful and unlawful use of force or violence upon the person of another.

NOTE. This section is a substitute for that portion of Section 51 of the Crimes and Punishment Act of 1850, which defined assault and battery as "the unlawful beating of another." The extended definition given in the section above accords with leading authority upon the subject.-3 Black. Com., p. 120; 2 Bishop's Cr. Law, Secs. 62, 63; 17 Ala., p. 540; 9 N. H., p. 491.

243. (§ 51.) A battery is punishable by fine not exceeding one thousand dollars, or by imprisonment in the County Jail not exceeding one year.

244. Every person who willfully 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 fourteen years.

NOTE.-Stats. of 1868, p. 194, Sec. 1.

245. (§ 50.) 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 and 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 two years, or by fine not exceeding five thousand dollars, or by both.

NOTE.-Founded on portion of Act of 1855.-Stats. 1855, p. 106, Sec. 2. Slight verbal alterations have been made, but no substantial change.-People vs. Vanard, 6 Cal., p. 562; People vs. Keefer, 18 Cal., p. 636.

251. Truth may be given in evidence. Jury to determine
law and fact.

252. Publication defined.

253. Liability of editors and publishers.

254. Publishing a true report of public official proceedings

privileged.

255. Extent of privilege.

256. Other privileged communications.

257. Threatening to publish libel. Offer to prevent publica-
tion, with intent to extort money.

defined.

248. (§ 120.) A libel is a malicious defamation, Libel 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.

NOTE.-4 Black. Com., p. 150; 2 Kent Com., p. 735.

ment of

249. (§ 120.) Every person who willfully, and with Punisha malicious intent to injure another, publishes or pro- libel. cures to be published any libel, is punishable by fine not exceeding five thousand dollars, or imprisonment in the County Jail not exceeding one year.

Malice presumed.

Truth may be given in evidence.

Jury to determine law and fact.

Publication defined.

Liability of editors and

250. An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.

251. (§ 120.) In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it appears 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 have the right to determine the law and the fact.

NOTE.-Constitution of California, Sec. 9, Article I. Justification in civil cases.-Thrall vs. Smiley, 6 Cal., p. 530.

252. 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 with the immediate custody of the libel under circumstances which exposed it to be read or seen by any other person than himself.

NOTE.-Giles vs. The State, 6 Georgia, p. 276.

253. Each author, editor, and proprietor of any publishers. book, newspaper, or serial publication, is chargeable with the publication of any words contained in any part of such book, or number of such newspaper or serial.

Publishing

a true

report

of public

NOTE.-Rex vs. Gretch, 1 Moo. & M., p. 433; Commonwealth vs. Kneeland, Thatch. Cr. C., p. 846.

254. No reporter, editor, or proprietor of any newspaper is liable to any prosecution for a fair and

official pro- true report of any judicial, legislative, or other public

ceedings

privileged.

official proceedings, or of any statement, speech, argument, or debate in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication.

NOTE.-In Sanford vs. Bennett, 24 N. Y., p. 20, the question was whether a speech made by a convict at the place of execution was a speech made in the course

of a judicial or public official proceeding, within the
meaning of the statute, so that one publishing it was
protected by the statute from a civil action for injurious
words contained in it, concerning other persons. The
Court decided the question in the negative. They held
that the statute applies only to judicial and legislative
proceedings, and to transactions resembling them, and
not to an executive act to be performed by a single
person and admitting of no deliberation; and it pro-
tects only the publication of speeches which form prop-
erly a part of the proceeding.

255. Libelous remarks or comments connected with matter privileged by the last section receive no privilege by reason of their being so connected.

Extent of privilege.

privileged

cations.

256. A communication made to a person interested Other in the communication, by one who was also interested communior who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to be malicious, and is a privileged communication.

NOTE.-Eastwood vs. Holmes, 1 Fost. & F., p. 347;
Turnbull vs. Bird, 2 id., p. 524.

ing to pub

lish libel.

Offer to

257. Every person who threatens another to pub- Threatenlish a libel concerning him, or any parent, husband, wife, or child of such person, or member of his family, and every person who offers to prevent the publication of any libel upon another person, with intent to extort publicaany money or other valuable consideration from any intent person, is guilty of a misdemeanor.

NOTE. This section was intentionally confined to threats uttered directly to the person about to be libeled. The ground upon which the criminal remedy for libel is allowed is the tendency of a libel to provoke a breach of the peace. A threat to publish one uttered to third persons, and only reaching the injured party through indirect repetition, is no more calculated to create disturbance of the peace than other forms of slander, and should not be distinguished from slander in the remedy allowed. See, also, Stats. 6 and 7 Vict., Chap. 96, Sec. 3, as to offers to prevent publication of

prevent

tion, with to

money.

TITLE IX.

OF CRIMES AGAINST THE PERSON AND AGAINST PUB-
LIC DECENCY AND GOOD MORALS.

CHAPTER I. Rape, abduction, carnal abuse of children,
and seduction.

II. Abandonment and neglect of children. III. Abortions.

IV. Child stealing.

V. Bigamy, incest, and the crime against

nature.

VI. Violating sepulture and the remains of the dead.

VII. Crimes against religion and conscience, and other offenses against good morals. VIII. Indecent exposure, obscene exhibitions, books and prints, and bawdy and other disorderly houses.

Rape defined.

SECTION 261. Rape defined.

262. When physical ability must be proved.

263. Penetration sufficient.

264. Punishment of rape.

265. Abduction of women.

266. Seduction for purposes of prostitution.
267. Abduction.

261. (§ 47.) Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: