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An Act to establish a Penal Code.

[Approved February 14, 1872]


1. Title and divisions of this act.

SECTION 1. This act shall be known as THE PENAL, CODE OF CALIFORNIA, and is divided into three parts, as follows:

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SEO. 2. This code takes effect at twelve o'clock, noon, on the first day of January, eighteen hundred and seventy-three.

Effect of codes, generally: See Pol. Code, secs. 4478 et seq.

Laws passed at the same session at which the codes were adopted prevail over the codes: Babcock v. Goodrich, 47 Cal. 488; and see Ex parte Newton, 53 Id. 572. But under section 3891 of the Political Code, declar3. Not retroactive.

SEC. 3. No part of it is retroactive, Retroactive effect: See supra, note to section 2. Not only is the code to have a future operation, except where otherwise expressly declared, but amendments to the code receive a similar construction, and are not retroactive: C. P. R. R. v. Shackelford, 63 Cal. 261; Sharp v. Blackenship, 59 Id. 268; Hibernia §. & L. Soc. v. Jordan, 6 Pac. C. L. J. 686.

What is an express declaration of an intention to give a section or amendment a retroactive operation must often rest on construction, as in applying a measure of damages to conversion committed before the measure was provided: Tulley v. Tranor, 53 Cal. 274; or deter

ing that with respect to provisions concerning the revenue the code is to be considered as if passed on the last day of the session, all acts passed during that session are repealed except acts amendatory of or carrying into effect the codes: Mitchell v. Crosby, 46 Id. 97.

unless expressly so declared.

mining what rate of interest prevailed upon the adoption of the code: Dunne v. Mastic, 50 Id. 244.

Cited and applied to requirements in sections 1493 and 1500 of the Code of Civil Procedure, in regard to presentation of claims against decedents, in Hibernia S. & L. Soc. v. Hayes, 56 Cal. 297; so also in regard to the amendment to section 325 of that code requiring payment of taxes to make a good adverse holding: Sharp v. Blankenship, 59 Id. 288; C. P. R. R. v. Shackelford, 63 Id. 261.

Impairing vested rights: Sco Code Civ. Proc., sec. 8.

Ex post facto laws, what are.-Justice Chase thus defines ex post facto laws:

"1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

2. Every law that aggravates a crime, or makes it greater than when committed.

"3. Every law which changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender:" Calder v. Bull, 3 Dall. 390.

the act, is constitutional, though the soundness of this decision may well be doubted: Blann v. State, 39 Ala. 353.

See a valuable article on ex post facto laws and bills of attainder in 5 Crim. Law Mag. 325. Laws not ex post facto.-Laws creating new tribunals, or conferring new jurisdiction, or enlarging or diminishing the powers of existing courts, are not ex post facto: State v. Sullivan, 14 Rich. 281; Commonwealth v. Phillips, 11 Pick. 28; nor are laws changing the place of trial: Gut v. State, 9 Wall. 35; nor laws changing criminal procedure: People v. Mortimer, 46 Cal. 114; Walston v. Commonwealth, 16 B. Mon. 15; Perry v. Commonwealth, 3 Gratt. 632. A law which provides that one convicted of a second offense shall receive greater punishment than for a first offense is not ex post facto, even when applied to the case of one who committed the first offense prior to the enactment of the law: Ex parte Gutierrez, 45 Cal. 429; People v. Stanley, 47 Id. 113; Ross's Case, 2 Pick. 165; Rand v. Commonwealth, 9 Gratt. 738.

The expression "ex post facto" is technical, and is applied exclusively to penal statutes: Calder v. Bull, 3 Dall. 390. Such a law is one which punishes for an act not punishable when committed: Cummings v. Missouri, 4 Wall. 326; or imposes additional punishment: Id.; or changes the rules of evidence so that less or different testimony is sufficient to convict: I; or which changes the punishment after convic Rule of construction.-A law will not be tion: Hartung v. People, 22 N. Y. Hod; or so construed as to give it a retroactive operachanges the kind and character of punishment tion unless it is clearly apparent that such was which attached to the offense when it was com- the intention of the legislature: Gates v. Salmitted: Shepherd v. People, 25. Id. 415; Harmon, 28 Cal. 320; Von Schmidt v. Huntington, tung v. People, 26 Id. 169. 1 Id. 55; Hibernia S. & L. Society v. Jordan, 6 Pac. C. L. J. 686.

But it has been held that a statute which makes the breach of a pre-existing contract criminal, though not so prior to the passage of 4. Construction of the Penal Code.

Corresponding sections.-The same section is found in each of the other three codes.

SEC. 4. The rule of the common law, that penal statutes are to be strictly construed; 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 objects and to promote justice.

Construction of this code. The code commissioners give the following explanation for this section. After referring to the old rule that penal statutes are to be strictly construed, they say: "However sound may be the arguments in favor of this rule, when applied to ordinary acts of the legislature, it is apparent that it would be improper to apply it in all its severity to a system of laws intended, in a great measure, to take the place of the common law, and having in view, as its leading object, the furtherance of justice and a disregard of technical strictness. The provisions of such a system ought to be construed in the same manner, and with like force and effect, as they would be were the principles enunciated resting in the unwritten law, and it was to this end that a section of similar import has been made a part of each of the codes," meaning section 4 of the other codes. By this section the common-rule law, that all penal statutes are to be strictly construed, and never extended by implication, has been abrogated in this state, and one adopted more likely to give effect to the provisions of this code and promote justice: Ex parte Gutierrez, 45 Cal. 431; People v. Soto, 49 Id. 68; People v. West, Id. 610; People v. Tisdale, 57 Id. 104. "The established rule of the common law undoubtedly was that statutes of the character of the one now under consideration should receive a strict construction in favor of him upon whom a penalty was to be inflicted; but this rule has been abrogated by the code, which has constituted itself in

this respect its own interpreter: " Ex parte Gutierrez, supra; see People v. Tisdale, supra.

This rule of strict construction was not limited to statutes that were penal in their nature, but it extended to all statutes in derogation of the common law; and the uniform rule in this state, prior to the adoption of this section, was that all such statutes, penal or otherwise, should be strictly construed, and limited in their operations to the strict letter of the law: Hotaling v. Cronise, 2 Cal. 60; People v. Buster, 11 Id. 221; Turner v. Tuolumne Co. Water Co., 25 Id. 400; Pina v. Peck, 31 Id. 362. The object of the legislature in passing this section was to do away with this rule of statutory construction, and to adopt a more liberal one in its stead, with the view of furnishing the courts with a rule of procedure more conformable to the purposes of justice. Statutes, however, in affirmance of the common law, are to be construed as was the rule by that law: Baker v. Baker, 13 Id. 95.

In the construction and interpretation of all laws, resort is frequently had to the title of the act for assistance in arriving at the true meaning thereof. It cannot be used for the purpose of restraining or controlling any positive provision, but in cases of doubt, it is often resorted to as a means of ascertaining the intent of the legislature, and when considered with other parts of the law, may materially aid in removing ambiguities therein: Flynn v. Abbott, 16 Cal. 365; State v. Conkling, 19 Id. 512; People v. San Francisco, 36 Id. 602; Matter of Boston M.

&M. Co., 51 Id. 624; Weed v. Maynard, 52 Id. 459; Harris v. Sup. of S. F., Id. 554; see Hagar v. Sup. of Yolo County, 47 Id. 232. The codes of California, divided, as they are, into titles, chapters, and sections, and the subject-matter of each chapter being designated by headnotes, more consideration is due to the latter, in the construction of the several chapters and sections, than is generally given to the title of an act. In considering this question, the following views were expressed by the supreme court of this state: "The practice act is divided into titles, chapters, and sections; the head of each chapter in the several titles is a note indicating generally the subjects to which the chapter is devoted. While the rule is well settled that the title of an act will not control the language in the body of the statute, but may be referred to as tending to explain the intention when the language is doubtful, we are of opinion that these head-notes, indicating the particular subjects treated of in the several chapters, are entitled to more consideration than the title to the entire act. The revised statutes of New York (passed as one act) were also divided into titles, chapters, and sections, with similar head-notes to the chapters; and in discussing the effect to be given to these headnotes, the supreme court of that state say: "The inscription to chapter 5 is not in any sense a title to a statute. It forms a part of

the body of the act quite as much as the section cited, and it was inserted for the purpose of controlling and limiting the scope and application of the general words used in the chapter:' People v. Molineux, 53 Barb. 15. On appeal to the court of appeals this ruling was approved and affirmed: 40 N. Y. 113. If the head-note of the chapter is to be consulted in the interpretation of section 251, it becomes apparent that it was intended to apply to willful trespasses only:" Barnes v. Jones, 51 Id. 306; and see Ex parte Koser, 60 Id. 192; see State v. Vowels, 4 Or. 326.

In Gonzales v. Wasson, 51 Cal. 295, it was held that when the provisions of the different codes conflict with each other, such a construction must be given to them that all may, if possible, have effect. The provisions of the codes regulating judicial remedies apply only to proceedings in the state courts, and not to proceedings in the federal courts: Majors v. Cowell, Id. 478.

Construction of penal statutes generally: See an article by Heard in 2 Crim. Law Mag. 1. Rules of construction of code provisions generally: See Pol. Code, sec. 4478 et seq. Statutes in derogation of common law: See supra, third paragraph of this note, and section 4 of each of the codes, and the notes thereto.

5. Provisions similar to existing laws, how construed.

SEC. 5. 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.

New enactments.-The codes were framed with a view to a complete system of law, designed, however, to disturb the existing state of things as little as possible, and not to impair vested rights. The foregoing section is one of several expressive of this design. It has been considered in connection with the succeeding section with reference to the effect of the codes upon tenure of office: People v. Bis

6. Effect of code upon past offenses,

sell, 49 Cal. 407, the inspector of gas-meters


Revival by repeal.-"The Political Code contains a general provision that the repeal of existing statutes shall not revive any law heretofore repealed or suspended, nor any office heretofore abolished, and therefore such a provision has not been incorporated herein:" Commissioners' note. The section referred to is section 18.

SEC. 6. 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.

Construction. The provisions of this section have no reference to the forms of criminal procedure: People v. Mortimer, 46 Cal. 114.

Code commissioners' note.-The code commissioners give the following as a statement of the effect and plan of this code upon commonlaw and past offenses. It illustrates the design of framing a new body of laws for the state.

"Abolition of common-law offenses.-Section 143 of the crimes and punishment act of 1850, Stats. 1850, 229, as amended March 31, 1866, Stats. 1866, 468, among other things, declares that 'every act or offense not defined by statute which is a misdemeanor at common

law is a misdemeanor in this state.' This amendment added to the confusion already existing in our criminal laws, so that at the time of the adoption of this code an examination of more than six thousand statutes, and the whole body of the common law, was necessary before it could be determined what acts or omissions were penal. Every one is presumed to know the law; yet, under the system then existing in this state, such knowledge was as unattainable by the masses as it would have been were the laws 'written in small charac ter upon high pillars.' It may well be doubted whether a state has the moral right to hold the

citizen responsible for an act or omission not evil within itself, which act or omission it is impossible for the citizen to know is prohibited by law. At least, it is clearly the duty of the state to give to every citizen ready means by which a knowledge of the penal laws may be attained. To this end, under the title of 'Crimes and Punishments,' has been brought every act or omission made punishable. The difficulties encountered may be illustrated by the following instances: The revenue laws contain more than fifty penal clauses; the election laws more than thirty; the corporation laws more than twenty; and at least seven out of ten of the general acts contain provisions of a penal character. Through all these various acts the commissioners extended their examination, drew from them their penal clauses, and inserted them-pruned of redundant and contradictory matter-in the Penal Code, under appropriate subdivisions.

"Effect of the code upon anterior of fenses. In so far as this code declares acts criminal which heretofore have not been so regarded, or increases the severity or changes the kind of punishment inflicted for a crime defined by our former laws, the familiar provision of the federal constitution prohibiting ex post facto laws forbids that it be made applicable to acts committed before it takes effect: U. S. Const., art. 1, sec. 10, subd. 1; Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch, 87, 138. In so far as it diminishes the severity of the punishment by prescribing a less amount or duration of penalty of the same kind with that inflicted under the common law, there may be no constitutional reason to prevent its being made applicable to all offenses, irrespective of the date of commission: Hartung v. People, 22 N. Y. 95; Commonwealth v. Mott, 21 Pick. 492; Keene v. State, 3 Chand. 109. Ameliorations of


7. Words, what included in definition

ishment introduced by statute are often expressly extended to prior offenses. No natural right arises, however, in behalf of an offender to claim the benefit of a subsequent statute mitigating the penalty for offenses like his own, though clemency readily awards it to him. Convenience and simplicity in the administration of penal justice should control upon this point. The commissioners were of opinion that any attempt by general words to render such miti-gations of punishment as are introduced by the code applicable to antecedent offenses is calculated to raise nice and embarrassing questions as to whether a given modification is a mitigation or not. They observe that it has been held that the judiciary cannot determine whether a provision that no person convicted of a capital offense shall be executed until after a year's confinement, nor then except upon special warrant from the governor-is or is not less severe than a former law imposing abso. lutely the punishment of death: Hartung v. People, 22 N. Y. 95, 106. Also, that a substitution of imprisonment, not exceeding seven years, for whipping, has been held not an increase of punishment: Strong v. State, 1 Blackf. 193; Herber v. State, 7 Tex. 69. They therefore recommended that, as it is necessary to retain the former system of prohibitions and penalties to a great extent, as respects acts already committed, it be retained complete, and applied to all acts committed before the hour at which this code takes effect. If a criminal statute is changed between the time of the commission of an offense and conviction, but contains a saving clause to the effect that the change shall not apply to the trial of offenses committed prior to such change, the punishment is regulated by the old law: People v. Gill, 7 Cal. 356."

SEC. 7. 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; writing includes printing; 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, and witnessed by a person who writes his own name as a witness. The following words, also, 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. Neglect, negligence, etc.

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


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