public in its nature, and requires the exercise of deliberation, discretion, or judgment, whether it be judicial or quasi-judicial in its character, the rule is otherwise, and while all the trustees, agents, or officers, except where the law makes a less number a quorum, must be present to deliberate, or, what is the same thing, must be duly notified and have an opportunity to be present, yet, except where the law clearly requires a joint action of all, a majority of them, where the number is such as to admit of a majority, if present, may act, and their act will be deemed an act of the body. Coffey v. Superior Court, 2 Cal. App. 453, 459, 83 Pac. 580. 80. Subdivision 17-Words giving 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.-Talcott v. Blanding, 54 Cal. 289, 293. See Kerr's Cyc. Pol. Code (2d ed.), § 15 and note. 81. Subdivision 18-"Seal" Impression on paper only constitutes.-Impression made upon paper only, and not upon wax, is sufficient to constitute a seal. Connolly v. Goodwin, 5 Cal. 220, 221. 82. Same-Same-Assumption from word "seal." It will be assumed from the word "seal" embraced in brackets appearing in notary's certificate printed in transcript that original was properly executed.Touchard v. Crow, 20 Cal. 150, 158, 81 Am. Dec. 108. 83. Same-Same-A scroll, when sufficient. An impression made by pen, instead of stamp, upon paper, constitutes a good seal. Hence, a scroll, with the word "seal" written within, or with the initials "L. S." therein, is sufficient.-Hastings v. Vaughn, 5 Cal. 315, 318. § 8. WHAT INTENT TO DEFRAUD IS SUFFICIENT. Whenever, by any of the provisions of this code, an intent to defraud is required in order to constitute any offense, it is sufficient if an intent appears to defraud any person, association, or body politic or corporate, whatever. History: Enacted February 14, 1872. § 9. CIVIL REMEDIES PRESERVED. The omission to specify or affirm in this code any liability to damages, penalty, forfeiture, or other remedy imposed by law [,] and allowed to be recovered [,] or enforced in any civil action or proceeding, for any act or omission declared punishable herein, does. not affect any right to recover or enforce the same. History: Enacted February 14, 1872. fense. This question we have treated elsewhere, where the full discussion and the authorities will be found collected.-See 1 Kerr's Wharton on Cr. Law (11th ed.), § 39; 2 Kerr's Wharton on Cr. Proc. (9th ed.), §§ 1395, 1396. 2. Same-Conspiracy to commit an offense is merged in the committed offense,. under this rule, and can not be proceeded against and punished as a separate offense. -See Maloney v. People, 229 Ill. 593, 83 N. E. 389; Com. v. Kingsbury, 5 Mass. 106, 15 Am. Cr. Rep. 86. But see Com. v. Walker, 108 Mass. 309. As to merger of conspiracy in completed offense, see, also, post, § 182, note pars. 68-72. 3. But the applicability of the rule depends upon the provision of the statute touching the matter. Under some statutes a conspiracy to commit a felony, which is a misdemeanor, is not merged in the completed offense, and the party may be prosecuted and punished for the conspiracy, notwithstanding the fact that the evidence. shows the completion of the felony itself.Wait v. Com., 113 Ky. 821, 15 Am. Cr. Rep. 78, 69 S. W. 697. 4. Same-Same-General rule in most of the American jurisdictions, under statute, at the present time is that a conspiracy to commit a felony is a distinct offense, and is not merged in the commission of the felony. There is no California case in point, and the cases in other jurisdictions are too numerous to be cited here, but will be found collected in 10 Cent. Dig., tit. "Conspiracy," $$ 68-70; 4 Decen. Dig. (1st series), tit. "Conspiracy," § 37; Id. (2d series), § 37. a 5. Same-Same-Where separate, conviction no bar. It follows that where conspiracy is separate offense under the statute which does not merge in the completed felony, a conviction of the felony is no bar to a prosecution for the conspiracy.Whitford v. State, 24 Tex. App. 489, 5 Am. St. Rep. 896, 6 S. W. 537. 6. Same-Merger of civil action in felony committed involving a civil injury, was the doctrine of the earlier cases. Foster Tucker, 3 Me. (3 Greenl.) 458, 14 Am. Dec. 243. V. 7. The source and history of this doctrine is fully set forth, and its adaptation to the system of jurisprudence in vogue in this country discussed in an able and exhaustive manner in Boston & W. R. Co. v. Dana, 67 Mass. (1 Gray) 83, 97. prose S. Same-Same-Right of civil action preserved, as in above section, a civil action for the civil injury does not merge in the felony, but the right of civil action is suspended in order that public justice may first be satisfied, according to one line of cases. The obstacle to proceeding in the civil action, under this doctrine of suspension of right of action, is removed by acquittal or conviction on the criminal cution. This is the English doctrine, but finds little favor in this country. See Crosby v. Leng, 12 East 409, 11 Rev. Rep. 437, 1 Eng. Rul. Cas. 650; Midland Ins. Co. v. Smith, L. R. 6 Q. B. Div. 561, 50 L. J. Q. B. (N. S.) 329, 45 L. T. N. S. 411, 29 Week. Rep. 850, 45 J. P. 699; Walsh v. Nattress, 19 Up. Can. C. P. 453; Taylor v. McCullough, 8 Ont. Rep. 309; Pease v. M'Aloon, 3 N. B. 111; Schohl V. Kay, 10 N. B. 244; Paquet v. Lavote, Rep. Jud. Quebec, 7 B. R. 277. 9. And can then proceed only, in case of acquittal, upon satisfying the court that the acquittal was not brought about by collusion.-Crosby v. Leng, 12 East 409, 11 Rev. Rep. 437, 1 Eng. Rul. Cas. 560. See Morgan v. Rhodes, 1 Stew. (Ala.) 70. 10. The reason for the rule is the enforcement of his public duty by the party civilly wronged, by procuring a conviction for the public wrong, or at least setting prosecution on foot by procuring an indictment for the public wrong by the grand jury. The entry of a nolle prosequi, or a quashing of the indictment when found, not affecting his right to proceed civilly.-See note, 28 Am. Rep. 47. 11. Same-Same-Same — American doctrine is, or at least the prevailing doctrine, supported by the weight of authority, is that the civil action is not postponed until after trial and conviction or acquittal on the charge of the public offense. See among other cases: Ark. Brunson v. Martin, 17 Ark. 270. Cal. Rogers v. Huie, 1 Cal. 429, 54 Am. Dec. 300. Fla. Williams v. Dickenson, 28 Fla. 90, 9 So. 847. III. Newkirk v. Dalton, 17 Ill. 413. Ind. Lofton v. Vogles, 17 Ind. 105. Me. Thayer v. Boyle, 30 Me. 475; Nowlan v. Griffin, 68 Me. 235, 28 Am. Rep. 45. Mass. Atwood v. Fisk, 101 Mass. 363, 100 Am. Dec. 124. Mich. Hyatt v. Adams, 16 Mich. 180. Miss. Newell v. Cowan, 30 Miss. 492. Mo. Nash v. Primm, 1 Mo. 178. N. H. Pettingill v. Rideout, 6 N. H. 454, 25 Am. Dec. 473; Quimby v. Blakley, 63 N. H. 77. N. J. Patton v. Freeman, 1 N. J. L. (Coxe) 113; McBlain v. Edgar, 65 N. J. L. 634, 48 Atl. 600. N. Y. Van Duzer v. Howe, 21 N. Y. 531, 538. N. C. White v. Frost, 11 N. C. (4 Hawks.) 251. Ohio. Howk v. Minnick, 19 Ohio St. 462, 2 Am. Rep. 413. R. I. Struthers v. Peckham, 22 R. I. 8, 45 Atl. 742. S. C. Cannon v. Burris, 1 Hill 372. Tenn. Ballew v. Alexander, 25 Tenn. (6 Humph.) 433. Tex. Mitchell v. Mims, 8 Tex. 6. Va. Cook v. Darby, 4 Munf. 444, 6 Am. Dec. 529. 12. But it is to be noted that it is within the discretion of the trial court, when civil action is brought before the termination of the criminal prosecution, to postpone the trial of a civil action commenced until after the trial of the criminal course, in order that anything transpiring in the civil action may not prejudice the accused in the trial of the criminal cause. § 10. PROCEEDINGS TO IMPEACH OR REMOVE OFFICERS AND OTHERS PRESERVED. The omission to specify or affirm in this code any ground of forfeiture of a public office, or other trust or special authority conferred by law, or any power conferred by law to impeach, remove, depose, or suspend any public officer or other person holding any trust, appointment, or other special authority conferred by law, does not affect such forfeiture or power, or any proceeding authorized by law to carry into effect such impeachment, removal, deposition, or suspension. History: Enacted February 14, 1872. § 11. AUTHORITY OF COURTS-MARTIAL PRESERVED. COURTS OF JUSTICE TO PUNISH FOR CONTEMPTS. This code does not affect any power conferred by law upon any court-martial, or other military authority or officer, to impose or inflict punishment upon offenders; nor any power conferred by law upon any public body, tribunal, or officer, to impose or inflict punishment for a contempt. History: Enacted February 14, 1872. CONTEMPT. 1. Construction with another section. 2, 3. Contempt-Jurisdiction limited. 4. Same-Sufficiency of order of commitment. 5. Same Same-Official notes of reporter. 1. Construction with another section.— Section 1205 of the Penal Code must be read in connection with this section.-Ex parte Abbott, 94 Cal. 333, 29 Pac. 622. 2. Contempt Jurisdiction limited. Authority of the court to impose a fine or term of imprisonment must be shown by a record of conviction, under Code of Civil Procedure, section 1211.-Ex parte Hoar, 146 Cal. 132, 79 Pac. 853; Overend v. Superior Court, 131 Cal. 280, 284, 63 Pac. 372. See Kerr's Cyc. Code Civ. Proc. (2d ed.), § 1221 and note. 3. The declaration of section 6 of this code that no act shall be punishable as a crime by statute, and then only in the manner prescribed and authorized by statute, is held under the authority of this section not to apply to contempts punishable under section 1209, Code of Civil Procedure.-Ex parte Karlson, 160 Cal. 383, 117 Pac. 447. As to contempts in criminal causes generally, see 1 Am. Crim. Rep. 107; 2 Am. Crim. Rep. 182, 184, 187; 4 Am. Crim. Rep. 134; 5 Am. Crim. Rep. 192; 6 Am. Crim. Rep. 148, 163; 8 Am. Crim. Rep. 138; 9 Am. Crim. Rep. 221; 10 Am. Crim. Rep. 499; 11 Am. Crim. Rep. 298, 303, 320; 14 Am. Crim Rep. 48, 253-305. As to what is punishment, see 37 Am. St. Rep. 590; 7 W. & P. 5850. 4. Same-Sufficiency of order of commitment. The order of commitment is wholly insufficient, on habeas corpus, where it fails to show the jurisdiction of the court.-Ex parte Hoar, 146 Cal. 132, 79 Pac. 853. 5. Same-Same-Official notes of reporter of the proceedings leading up to the order of commitment for contempt are no part of the record, and can not be considered to support the order.-Ex parte Hoar, 146 Cal. 132, 79 Pac. 853. DUTY OF § 12. OF SECTIONS DECLARING CRIMES PUNISHABLE. COURT. The several sections of this code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed. History: Enacted February 14, 1872. As to appointing time when judgment shall be pronounced, see, post, § 1191 and note. As to showing cause why judgment should not be pronounced, see, post, § 1201 and note. 1. Reformatories—Object of, not punishment.-Object of act entitled "An act to establish a state reformation school for juvenile offenders," etc., is not punishment, but reformation, discipline, and education. -Ex parte Liddell, 93 Cal. 633, 640, 29 Pac. 251; Ex parte Nichols, 110 Cal. 651, 654, 43 Pac. 9. § 13. PUNISHMENTS, HOW DETERMINED. 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. History: Enacted February 14, 1872. EXCESSIVE PUNISHMENT. 1-3. Excessive sentences-Invalidity of. 4. Sentence for less than term prescribed, effect. As to what is punishment, see note, 37 Am. St. Rep. 590. Validity of sentences differing from those authorized by law. See note, 55 Am. St. Rep. 264-275. 1. Excessive sentence-Invalidity of.-If prisoner is sentenced for longer term than that fixed in statute for punishment of his offense, court will reverse judgment, and 8 14. [Prelim. Div. prisonment void in part (because excessive) may be enforced to the full extent of the power of the court to render it, sustained (dictum).-Matter of Smith, 152 Cal. 568, 93 Pac. 191. 4. Sentence for less than statutory term. -Defendant not entitled to be discharged on habeas corpus for that reason.-In re Reed, 143 Cal. 634, 635, 101 Am. St. Rep. 138, 77 Pac. 660. WITNESS'S TESTIMONY MAY BE READ AGAINST HIM ON PROSECUTION FOR PERJURY. 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. History: Enacted February 14, 1872. § 15. "CRIME" and "PUBLIC OFFENSE” DEFINED. 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 punishments: 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. History: Enacted February 14, 1872; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 435, held unconstitutional, see history, § 5 ante. As to crimes and public offenses, their division or kinds and their punishments, see, post, §§ 16, 17 and notes. As to death-Affixed as the penalty for treason, see, post, § 37 and note. Same-Affixed for the punishment of murder in the first degree, see, post, § 190 and note. As to disqualification by for holding office, see Cal. Const. 1879, Art. As to impeachment and removal from office, see Cal. Const. 1879, 1. Crime-Definition of-Construction. 2. Same-How determined. 3. Necessity of punishment. 4, 5. Same-Criminal proceeding, what is. 6. Same-Duty to prosecute. 1. Crime-Definition of-Construction.A description, definition and denouncement of acts necessary to constitute a crime do not make the commission of such act or acts a crime unless a punishment be an nexed, for punishment is as necessary to constitute a crime as its exact definition.Matter of Ellsworth, 165 Cal. 677, 133 Pac. 272. 3. Necessity of punishment.-Description of acts necessary to constitute crime does not make commission of such acts a crime; punishment is as necessary to constitute a crime as definition. Without either, there is no crime; and the repeal of either leaves no crime. People v. McNulty, 93 Cal. 427, 439, 26 Pac. 597, 29 Pac. 61. 4. Same-Criminal proceeding, what is.— Proceeding against officer, by accusation for alleged misdemeanors in office, under section 772, post, is a criminal proceeding.Wheeler v. Donnell, 110 Cal. 655, 656, 43 Pac. 1. § 16. 5. Such proceedings against an officer is a nondescript, resembling somewhat a qui tam action; but whatever its garb it is in body and spirit, in its aim and object, a process for the punishment of crime.Wheeler v. Donnell, 110 Cal. 655, 43 Pac. 1; Coffey v. Superior Court, 2 Cal. App. 453, 456, 83 Pac. 580. 6. Same-Duty to prosecute.-It is the duty of district attorneys to prosecute acts or means violative of law and amounting to felonies or misdemeanors as prescribed in sections 15 to 18 of Penal Code.-Pillsbury v. Brown, 47 Cal. 477, 479. CRIMES, HOW DIVIDED. Crimes are divided into: 1. Felonies; and, 2. Misdemeanors. History: Enacted February 14, 1872. As to what constitutes a felony, see, post, § 17 and note. DIVISION OF CRIMES-HIGH AND LOW 1. Division of crimes-All crimes of two 2. High and low misdemeanors. 1. Division of crimes-All crimes of two classes.—All offenses against criminal laws of state are divided into two classes: felonies and misdemeanors.-County of Sonoma v. Santa Rosa, 102 Cal. 426, 428, 36 Pac. 810; People v. Holmes, 118 Cal. 444, 460, 50 Pac. 675; Ex parte Westenberg, 167 Cal. 309, 139 Pac. 674; In re Thompson, 27 Cal. App. 344, 174 Pac. 86. See, also, post, § 17 and note. 2. High and low misdemeanors.-While the common-law distinction between high and low misdemeanors does not apply in this state; yet all offenses are either felonies or misdemeanors, and misdemeanors of which police and justices' courts have jurisdiction, and which are punishable by fine not exceeding five hundred dollars or imprisonment not exceeding six months, or both, under section 1425 of the Penal Code, are commonly called low misdemeanors, while all other misdemeanors, punishment of which exceeds that mentioned, are designated as high misdemeanors.-Ex parte Westenberg, 167 Cal. 309, 139 Pac. 674. § 17. FELONY AND MISDEMEANOR DEFINED. 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. History: Enacted February 14, 1872; amended March 7, 1874, FELONIES AND MISDEMEANORS-HOW 12. Felony-As to what is. 13. Same-Depends on punishment. 16. Misdemeanor-As to what is. 17. Same As dependent upon punishment. 18. Same For all purposes." 19. Same-Distinction between high and low misdemeanors. |