AN ACT TO ESTABLISH A PENAL CODE. [Approved February 14th, 1872.] The people of the state of California, represented in senate and assembly, do enact as follows: TITLE OF THE ACT. 1. This act shall be known as The Penal Code of California, and is divided into three parts, as follows: I. Of Crimes and Punishments. II.-Of Criminal Procedure. III. Of the State Prison and County Jails. En. February 14, 1872. This act, how cited: Post, sec. 24. Construction of the codes, and of their various sections: See Pol. Code, secs. 4478 et seq. PRELIMINARY PROVISIONS. § 2. When this act takes effect. 3. Not retroactive. 4. Construction of the Penal Code. § 5. § 6. 7. Provisions similar to existing laws, how construed. Certain terms defined in the senses in which they are used in 9. Civil remedies preserved. 10. Proceedings to impeach or remove officers and others preserved. § 11. Authority of courts-martial preserved. Courts of justices to punish for contempts. 12. Of sections declaring crimes punishable. Duty of court. 13. Punishments, how determined. 14. Witness' testimony may be read against him on prosecution for perjury. 15. "Crime" and "public offense" defined. § 16. Crimes, how divided. 17. Felony and misdemeanor defined. 18. Punishment of felony, when not otherwise prescribed. 19. Punishment of misdemeanor, when not otherwise prescribed. § 21. 20. To constitute crime there must be unity of act and intent. Intent, how manifested, and who considered of sound mind. § 22. Drunkenness no excuse for crime. When it may be considered. § 23. Certain statutes specified as continuing in force. 24. This act, how cited. § 2. When this act takes effect. This code takes effect at twelve o'clock, noon, on the first day of January, eighteen hundred and seventy-three. En. February 14, 1872. Effect of codes, generally: Beq. See Pol. Code, secs. 4478 et § 3. Not retroactive. No part of it is retroactive, unless expressly so declared. En. February 14, 1872. Cal. Rep. Cit. 106, 680. Impairing vested rights: See Code Civ. Proc., sec. 8. Corresponding sections.-The same section is found in each of the other three codes. See sec. 3 of each of the other codes. § 4. Construction of the Penal Code. The rule of the common law, that penal statutes are to be strictly construed, has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its object and to promote justice. En. February 14, 1872. Cal. Rep. Cit. 45, 431; 46, 117; 49, 70; 82, 274; 88, 139; 93, 584; 93, 631; 105, 558; 127, 316; 139, 382. Rules of construction of code provisions, generally: See Pol. Code, secs. 4478 et seq. Statutes in derogation of common law: See sec. 4 of each of the codes. § 5. Provisions similar to existing laws, how construed. The provisions of this code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments. En. February 14, 1872. § 6. Effect of code upon past offenses. No act or omission commenced after twelve o'clock, noon, of the day on which this code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this code, or by some of the statutes which it specifies as continuing in force and as not affected by its provisions, or by some ordinance, municipal, county, or township regulation, passed or adopted under such statutes, and in force when this code takes effect. Any act or omission commenced prior to that time may be inquired of, prosecuted, and punished in the same manner as if this code had not been passed. En. February 14, 1872. Cal. Rep. Cit. 46, 116, 46, 119; 55, 229. Effect on past offenses.-Where, by subsequent statute, the punishment is increased it is ex post facto, and inoperative: Const. U. S., art. I, sec. 10, subd. 1. § 7. Certain terms defined in the senses in which they are used in this code. Words used in this code in the present tense include the future as well as the present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word "person" includes a corporation as well as a natural person; the word "county" includes "city and county"; writing includes printing and typewriting; oath includes affirmation or declaration; and every mode of oral statement, under oath or affirmation, is embraced by the term "testify," and every written one in the term " depose"; signature or subscription includes mark, when the person cannot write, his name being written near it, by a person who writes his own name as a witness; provided, that when a signature is made by mark it must, in order that the same may be acknowledged or serve as the signature to any sworn statement, be witnessed by two persons who must subscribe their own names as witnesses thereto. The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context: 1. The word "willfully," when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage; 2. The words "neglect," "negligence," "negligent,” and "negligently' import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own con cerns; 3. The word "corruptly" imports a wrongful design to acquire or cause some pecuniary or other advantage to the person guilty of the act or omission referred to, or to some other person; 4. The words "malice" and "maliciously' import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law; 5. The word "knowingly' imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such act or omission; 6. The word "bribe" signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his action, vote, or opinion, in any public or official capacity; 7. The word "vessel," when used with reference to shipping, includes ships of all kinds, steamboats, canal-boats, barges, and every structure adapted to be navigated from place to place for the transportation of merchandise or persons; 8. The words "peace officer" signify any one of the officers mentioned in section eight hundred and seventeen; 9. The word " "magistrate" signifies any one of the officers mentioned in section eight hundred and eight; 10. The word "property" includes both real and per sonal property; 11. The words "real property" are co-extensive with lands, tenements, and hereditaments; 12. The words "personal property" include money, goods, chattels, things in action, and evidences of debt; 13. The word "month" means a calendar month, unless otherwise expressed; the word "day-time" means the period between sunrise and sunset, and the word "night-time" means the period between sunset and sunrise; 14. The word "will" includes codicil; 15. The word "writ" signifies an order or precept in writing, issued in the name of the people, or of a court or judicial officer, and the word "process' a writ or summons issued in the course of judicial proceedings; 16. Words and phrases must be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning; 17. Words giving a joint authority to three or more public officers or other persons, are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority; 18. When the seal of a court or public officer is required by law to be affixed to any paper, the word "seal" includes an impression of such seal upon the paper alone, or upon any substance attached to the paper capable of receiving a visible impression. The seal of a private person may be made in like manner, or by the scroll of a pen, or by writing the word "seal" against his name; 19. The word "state,' ," when applied to the different parts of the United States, includes the District of Columbia and the territories, and the words "United States" the district and territories; may include 20. The word "section, ," whenever hereinafter employed, refers to a section of this code, unless some other code or statute is expressly mentioned. En. February 14, 1872. Am'd. 1873-4, 419; 1905, 635. The purpose of the amendment is to make the section conform to the corresponding sections of the Civil Code and of the Code of Civil Procedure. The changes consist in the addition of the words |