3.

Same-Between six and seven o'clock in evening.-Where entry was made between six and seven o'clock in the evening, and sun did not set until about half-past six, it was not proof that offense was committed in night-time.-People v. Griffin, 19 Cal. 578.

4. Where defendant with his associates constructed tunnel under bank building, and entered it during some time in afternoon, one of them emerging therefrom at seven o'clock for purpose of securing fresh air, while others came out of cellar at twelve o'clock that night, so that burglary

was committed at some time between these hours, finding of jury of guilty of burglary in first degree will not be disturbed.-People v. McCarty, 117 Cal. 65, 66, 48 Pac. 984. 5. Same Two o'clock in morning. Where evidence tended to show that entry was made about two o'clock in the morning, judgment can not be reversed for insufficiency of evidence.-People v. Urquidas, 96 Cal. 239, 240, 31 Pac. 52.

As to evidence of possession of burglarious tools in prosecution for burglary, see, ante, § 459, note pars. 62-64.

§ 464. BURGLARY WITH EXPLOSIVES. 1. Any person who, with intent to commit crime, breaks and enters, either by day or by night, any building, whether inhabited or not, and opens or attempts to open any vault, safe, or other secure place by use of nitroglycerine, dynamite, gunpowder, or any other explosive, shall be deemed guilty of burglary with explosives.

2. [Penalty.] Any person duly convicted of burglary with explosives shall be punished by imprisonment for a term of not less than twenty-five nor more than forty years.

History: Enactment approved May 5, 1917, Stats. and Amdts. 1917, p. 273. In effect July 27, 1917.

CHAPTER III.

HAVING POSSESSION OF BURGLARIOUS INSTRUMENTS AND DEADLY WEAPONS. § 466. Having possession of any instrument § 467. Having possession of deadly weapons with intent to commit burglary. with intent to commit an assault.

§ 466. HAVING POSSESSION OF ANY INSTRUMENT WITH INTENT TO COMMIT BURGLARY. Every person having upon him or in his possession a picklock, crow, keybit [key, bit], or other instrument or tool with intent feloniously to break or enter into any building, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument above named so that the same will fit or open the lock of a building, without being requested so to do by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of misdemeanor. Any of the structures mentioned in section four hundred and fifty-nine of this code shall be deemed to be a building within the meaning of this section.

History: Enacted February 14, 1872, founded on § 127 Criminal Practice Act 1850, Stats. 1850, p. 245; amended March 3, 1874, Code Amdts. 1873-4, p. 463.

§ 467. HAVING POSSESSION OF DEADLY WEAPONS WITH INTENT TO COMMIT AN ASSAULT. Every person having upon him any deadly weapon with intent to assault another, is guilty of a misdemeanor.

History: Enacted February 14, 1872.

from 17. Mail-carrier, while on his way one route to another, is a traveler.-Lott v. State, 122 Ind. 393, 24 N. E. 156.

18. Same Traveler.-One who stops over in his journey in any place, and is engaged in business or pleasure, especially where it consists in visiting saloons and disturbing as traveler, is not exempt, public peace, see from prohibition against carrying weapons. -Ratigan v. State, 33 Tex. Cr. Rep. 301, 26 S. W. 407.

quaintances.-Colson v. State, 53 Ala. 519, 25 Am. Rep. 652.

22. Place-Carrying pistol on one's own premises does not constitute offense of carrying weapon.-Wortham v. State (Tex. Cr. Apr Oct. 25, 1893), 23 S. W. 797.

23. Same-Same-Grist-mill held not to be one's own premises, so as to justify carrying concealed weapons by miller who lived at some distance.-Maupin v. State, 89 Tenn. 367, 17 S. W. 1038.

24. Razor held to be dangerous weapon, within statute forbidding carrying of bowieknives, pistols, dirks, or other dangerous weapons.-State v. Nelson, 38 La. Ann. 942, 58 Am. Rep. 202; State v. Iannucci, 4 Pen. (Del.) 193, 55 Atl. 336.

As to what constitutes deadly weapon, see, ante, § 245, note.

§ 470. FORGERY OF WILLS, CONVEYANCES, ETC. Every person who, with intent to defraud, signs the name of another person, or of a fictitious person, knowing that he has no authority so to do, to, or falsely makes, alters, forges, or counterfeits, any charter, letters-patent, deed, lease, indenture, writing obligatory, will, testament, codicil, bond, covenant, bank bill or note, post-note, check, draft, bill of exchange, contract, promissory note, due-bill for the payment of money or property, receipt for money or property, passage ticket, power of attorney, or any certificate of any share, right, or interest in the stock of any corporation or association, or any controller's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquittance, release, or receipt for money or goods, or any acquittance, release, or discharge of any debt, account, suit, action, demand, or other thing, real or personal, or any transfer or assurance of money, certificate of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft, order, or any assignment of any bond, writ

ing obligatory, promissory note, or other contract for money or other property; or counterfeits or forges the seal or handwriting of another; or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above-named false, altered, forged, or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person; or who, with intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court, is guilty of forgery.

History: Enacted February 14, 1872, founded on § 73 Criminal Practice Act 1850, Stats. 1850, p. 237; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 462, act held unconstitutional, see history, § 5 ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 673.

8. Same-To pass,'
" is not synony
mous with "uttering and publish-
ing."

9. Same Utter" and "publish.''
10, 11. Injury-Not necessary any one shall
suffer.

II. INTENT TO DEFRAUD.

12, 13. An essential element.

14. Forgery implies an evil intent.
15. Nature of act constituting forgery-
Alteration of existing instrument.

16, 17. Same-Attempt to pass.

18. Same-False statement of fact in
body of instrument.

19. Same-Identity of name.

20. Same-Necessity of forged signature.

21, 22. Same--Overt act.

23. Same-Placing forged mortgage on record.