mission of the offense, on the theory that he aided and abetted therein (§ 971, post), all the evidence leading to the inevitable conclusion that the defendant had guilty knowledge of the crime and shared in the proceeds thereof, and the jury having accepted the only inference reasonably to be drawn from the evidence and the circumstances proved, rather than to accept the joint denials of the parties charged with the crime, this fact, together with the further fact that the evidence as to facts which were undisputed being sufficient to support the verdict of conviction, the judgment of

§ 212. WHAT FEAR MAY BE AN ELEMENT IN ROBBERY. The fear mentioned in the last section may be either

1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or,

2. The fear of an immediate and unlawful injury to the person or property of any one in the company of the person robbed at the time of the robbery. History: Enacted February 14, 1872; amended March 30, 1874, Code

Amdts. 1873-4, p. 427.

FEAR AS ELEMENT OF ROBBERY

INSTRUCTION.

1. Charge on fear-When not necessary.

2. Same-When proper.

As to instruction, in disjunctive where charge in indictment is conjunctive, see, ante, § 211, note par. 135.

1. Charge on fear-When not necessary. -Where information charged robbery by means of force and fear, and evidence showed that robbery was committed by means of force only, and there is no evidence to show that prosecuting witness had been compelled to part with his money through fear, there was no necessity for or

propriety in court instructing jury on subject of fear, or reading to them section 212, defining fear, and its failure to do so was not error.-People v. Modina, 146 Cal. 142, 143, 79 Pac. 842.

2. Same-When proper.-Where, in robbery case, court, in its charge, defined robbery as it is defined in Penal Code, and then explained what fear, by means of which, if property is taken through its influence, will constitute such taking robbery, such charge will be sustained, where there is some evidence that taking of property was accomplished by means of both force and fear.People v. O'Brien, 88 Cal. 483, 490, 26 Pac. 362.

§ 213. PUNISHMENT OF ROBBERY. Robbery is punishable by impris onment in the state prison not less than one year.

History: Enacted February 14, 1872, founded on $59 Criminal Practice Act (Stats. 1850, p. 235), as amended April 19, 1856, Stats. 1856, p. 220.

2. Accessory after fact-Punishment for. -Person found guilty as an accessory to commission of robbery after fact can not be punished for crime of robbery, and can only be imprisoned for term not exceeding two years, and fined any sum not exceeding $5000.-People v. Gassaway, 28 Cal. 404, 406. 3. Indeterminate sentence, under visions of section 1168, post, is authorized under the provisions of the above section, and a sentencing for a definite term is error. --People v. Gonzales, 36 Cal. App. 782, 173 Pac. 407.

pro

4. Life sentence.-Under this section and, post, section 671, life sentence may be imposed for crime of robbery.-People v. Winthrop, 118 Cal. 85, 93, 50 Pac. 390.

5. Same-Upon conviction with a prior charge of burglary.-The claim that by

virtue of the indeterminate sentence law, section 1168, post, the board of prison directors should have disregarded the prior conviction and fixed the term of imprisonment as though the defendant had been convicted of robbery only. But this is a mistaken view of the law. Said statute does not affect the procedure as to prior convictions, nor does it relieve the defendant of the additional burden that may be imposed thereby. It does not, indeed, authorize or permit the state prison directors to fix the term of imprisonment, where no minimum is prescribed by the law. Their authority is limited to cases wherein the legislature has provided both a minimum and a maximum punishment (see, post, § 1168, subd.

6. Sentence of fifty years—Not excessive. -Sentence of imprisonment for fifty years for aggravated case of robbery is not So excessive as to render reversal of conviction proper.-People v. Clary, 72 Cal. 59, 61, 13 Pac. 77.

7. Verdict-Finding defendant guilty as charged, in an indictment for robbery, is valid, and will support sentence, although the crime of robbery as charged also involves the crime of grand larceny.-People v. Gilbert, 60 Cal. 108, 110.

8. Distinguishing People v. Campbell, 40 Cal. 129, and People v. Coch, 53 Cal. 627.

§ 214. ROBBERY; GOING UPON RAILROAD TRAINS, OR DOING ANY ACT THEREON, FOR THE PURPOSE OF. Every person who goes upon or boards any railroad train, car or engine, with the intention of robbing any passenger or other person on such train, car or engine, of any personal property thereon in the possession or care or under the control of any such passenger or other person, or who interferes in any manner with any switch, rail, sleeper, viaduct, culvert, embankment, structure or appliance pertaining to or connected with any railroad, or places any dynamite or other explosive substance or material upon or near the track of any railroad, or who sets fire to any railroad bridge or trestle, or who shows, masks, extinguishes or alters any light or other signal, or exhibits or compels any other person to exhibit any false light or signal, or who stops any such train, car or engine, or slackens the speed thereof, or who compels or attempts to compel any person in charge or control thereof to stop any such train, car or engine, or slacken the speed thereof, with the intention of robbing any passenger or other person on such train, car or engine, of any personal property thereon in the possession or charge or under the control of any such passenger or other person, is guilty of a felony.

History: Enacted by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 447, held unconstitutional, see history, § 5, ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 653.

ROBBERY UPON RAILWAY TRAIN.

1. Commissioners' note.

2. Construction-Constitutionality.

3. Robbing a train-What is.

4. Section formerly part of § 218-Cases decided under-History of.

As to train-wrecking, and punishment therefor, see, post, § 218 and note.

1. Commissioners' note says: "This section makes special provision for the punishments of acts done for purpose of committing robbery on passenger train, and to that end makes criminal and punishable every act which may have been done with view to accomplishing such robbery. It is thought best, however, not to make the crime punishable by death or imprisonment for life, as at present, because it is feared that such severity of punishment may result in failure to secure convictions. If robbery,

or any other crime, is actually consummated, the conviction will, of course, be for that crime and the punishment commensurate therewith."

2. Construction Constitutionality. Section is not unconstitutional as violating that provision of constitution which declares that every act of legislature shall embrace but one subject, which shall be expressed in its title.-People v. Lovren, 119 Cal. 88, 89, 51 Pac. 22, 638.

is.-Robbing

3. Robbing train-What train is to take from person having charge of train, by violence and intimidation, control and management thereof, with intent to take from it or from person upon it something of value.-People v. Thompson, 115 Cal. 160, 165, 46 Pac. 912.

4. Section formerly part of section 218Cases decided under, history of.-This section and, post, section 218, were formerly

consolidated substantially in one section, known as section 218, Penal Code. Commissioners' amendment, approved March 16, 1901, took away from section 218 all that portion thereof relating to going upon a railroad train or doing any act for the purpose of robbery thereon, and re-enacted it into this section. The cases of People v. Thompson, 111 Cal. 246, and People v. Thompson, 115 Cal. 160, deciding that "the whole tenor and purpose of the act is directed against trainwrecking, and this is true as to subdivision 2, equally with all other subdivisions, and although at first glance this clause would

seem to be directed toward the suppression of the crime of robbery, the offense of robbery is only incidentally involved in the provision, as the wrecking of the train, and consequent and natural results following injuries and death to the passengers, is its prime purpose, and every part and clause of the act is directed toward the suppression of train-wrecking", were decided under the original section 218, before the amendment above referred to was made, as was also People v. Lovren, 119 Cal. 88, 51 Pac. 22, 638.

$216. Administering poison.

CHAPTER V.

ATTEMPTS TO KILL.

§ 217. Assault with intent to commit murder.

§ 218. Train-wrecking, intention of, punishment for.

§ 219. Railroad trains, when wrecked; punish

ment.

§ 216. ADMINISTERING POISON. Every person who, with intent to kill, administers, or causes or procures to be administered, to another, any poison or other noxious or destructive substance or liquid, but by which death. is not caused, is punishable by imprisonment in the state prison not less than ten years.

History: Enacted February 14, 1872, founded on § 45 Criminal Practice Act (Stats. 1850, p. 233), as amended May 20, 1861, Stats. 1861, p. 588.

ATTEMPTS TO KILL.

1. Assault with intent to commit murder-
Includes assault with deadly weapon.
2. Same Unlawful infliction of injury.
3. Causing to inhale chloroform-Admin-
istering poison" within meaning.

4. Evidence-General reputation for peace.
5. Same-Hearsay, what is.

6. Same-Other attempts.

7. Intent to kill-Inferred when.

8. Purpose of statute-Poison employed in attempt to kill.

9, 10. Practice-Indictment, when does not include two offenses-Form.

11. Same-Same-Intent to kill' is suffi

2.

Same-Unlawful infliction of injury by administering poison constitutes an assault.-Johnson v. State, 92 Ga. 36, 17 S. E. 974; Carr v. State, 135 Ind. 1, 41 Am. St. Rep. 408, 34 N. E. 533.

3. Causing to inhale chloroform—“Administering poison" within the meaning of the above section, where it is charged that the act was done with the intent to kill.-People v. Tinnen, Cal. App. —, 192 Pac. 557.

4.

for

Evidence - General reputation peace. On trial for murder by poison, evidence of defendant's general reputation for peace and quiet is admissible.-Carr v. State, 135 Ind. 1, 41 Am. St. Rep. 408, 34 N. E. 533. 5. Same-Hearsay, what is.-On trial for murder by poisoning, the statements of deceased, in narration of past events, and voicing her suspicions as to sender of poison, are hearsay and inadmissible.Graves v. People, 18 Colo. 170, 32 Pac. 63.

6. Same-Other attempts admissible to show deliberate scheme.-Commonwealth v. Kennedy, 170 Mass. 18, 48 N. E. 770. 7.

Intent to kill-Inferred, when.-Intent to kill can not be inferred from act of administering substance which has not capacity of destroying life.-People v. Van Deleer, 53 Cal. 147, 149.

S. Purpose of statute is to provide punishment for attempt to kill by means there

§ 217. ASSAULT WITH INTENT TO COMMIT MURDER. Every person who assaults another with intent to commit murder, is punishable by imprisonment in the state prison not less than one nor more than fourteen years.

History: Enacted February 14, 1872, founded on $50, Criminal Practice Act (Stats. 1850, p. 234) and § 2 Act April 10, 1855, Stats. 1855, p. 106.