not legally due, and did not pay them into the county treasury, or notify the person from whom they had been thus collected, but fraudulently and corruptly retained the same, and appropriated them to his own use, giving in detail the names of a number of persons from whom taxes were collected and the amounts of such taxes, is sufficient to require removal from office if substantiated and established on the trial, and a demurrer thereto should be overruled.Woods v. Varnum, 85 Cal. 639, 24 Pac. 843.

76. "Wilful misconduct" being shown by the accusation, it is immaterial what "misconduct" is covered by the provisions of the above section, and the accusation will be sufficient. Coffey V. Superior Court, 147 Cal. 525, 82 Pac. 75.

rea

77. Accusation against chief of police or police officer charging "wilful misconduct in office" showing facts constituting a misdemeanor in failing to or neglecting to or refusing to inform against and diligently prosecute persons whom they have sonable cause to believe are offenders against the acts prohibiting gaming and gambling, is sufficient as showing them guilty of a misdemeanor under section 335, ante. Coffey v. Superior Court, 147 Cal. 525, 82 Pac. 75.

78. Charge that on a certain day a large number of persons on the streets of a certain town did then and there wilfully and unlawfully disturb the peace of the neighborhood and of the plaintiff by threatening, traducing, quarreling and fighting with one another and alleging that the defendant, a constable of the township, was present and a witness to such acts and knowingly and wilfully neglected and refused to preserve the peace and made no effort to do so is sufficient as a charge of malfeasance in office in a prosecution under this section.Larue v. Davies, 8 Cal. App. 750, 754, 97 Pac. 903.

80. Same Same - Verification of, sufficiency. An accusation by a private citizen for removal from office under the provisions of the above section, commencing "A upon oath presents" etc., "the following accusation, alleging," etc., and subscribed and sworn to before the clerk of the court, makes the whole document an affidavit upon which a charge of perjury could be assigned, and constitutes a sufficient verification of the accusation, under the above section.-Woods v. Varnum, 85 Cal. 639, 24 Pac. 853.

81. See Moore v. Strickling, 46 W. Va. 515, 518, 50 L. R. A. 279, 33 S. E. 274, construing statute of West Virginia on similar point.

82.

Same-Entitling action-In name of accuser.-Proceeding may be had in name of informer, although there is nothing indicating that proceeding may not be in name of people.-Kilburn v. Law, 111 Cal. 237, 241, 43 Pac. 615.

83. Under act of March 7, 1881 (Stats. 1881, p. 54), purpose of which was to provide penalty by way of punishment for delinquency of municipal boards in failing to pass ordinances, etc., as contemplated in act, provision in section that penalty may be imposed at suit of any interested party is inconsistent with article VI section 20 of constitution, which is, "The style of all process shall be "The people of the state of California,' and all prosecutions shall be conducted in their name and by their authority."-Fitch v. Board of Supervisors, 122 Cal. 285, 288, 289, 54 Pac. 901.

84. Same-Same-To be in name of people.-"Perhaps a prosecution under this section ought to be in the name of the people. There is nothing indicating a contrary intention in the statute. The cases have been entitled as they were under the act of 1853. This was natural, as that act seemed to make it a proceeding by the informer against the person accused. The matter does not appear to be of much consequence, and it is enough to say that the statute has not provided that the action shall be in the name of the informer, and if section 684 of the Penal Code is applicable, as I think it is, it ought to be in the name of the people." -Temple, J., in Kilburn ex rel. Bank Commissioners v. Law, 111 Cal. 237, 241, 43 Pac.

89. Same-Same-Same-Fact that prosecution is commenced by an individual under this section instead of under general statute of state is immaterial upon question of proceedings being criminal in its nature. -Fitch v. Board of Supervisors, 122 Cal. 285, 293, 54 Pac. 901.

to

90. Same-Defective when it fails charge that defendant knowingly, wilfully, or corruptly charged and collected illegal fees, or neglected to perform any official duty.-Triplett v. Munter, 50 Cal. 644, 646; Smith v. Ling, 68 Cal. 324, 325, 9 Pac. 171.

As to intent not being an essential element, see par. 13, this note.

As to necessity of knowledge of the wrongfulness of act complained of, see par. 14, this note.

91. Same-Demurrer to accusation properly sustained upon ground of insufficient averments of facts, showing that accused is state, county, or municipal officer within jurisdiction of court, and when, how, or where he refused or neglected to perform his official duty.-In re Stow, 98 Cal. 587, 589, 33 Pac. 490.

92. Same-Facts must be pleaded. - In order to give court authority to proceed, all facts, showing that accused was state, county, or municipal officer within jurisdiction of court, and when, how, and where he refused or neglected to perform his official duty, should be plainly and fully alleged, as section is penal in its nature. In re Stow, 98 Cal. 587, 589, 33 Pac. 490.

93. Rules of practice governing in civil cases are to be applied, and benefit of appeal secured.-Matter of Marks, 45 Cal. 199. 219.

As to right of appeal, provided by chapter, see, ante, § 770, and note pars. 5-9.

As to right of appeal not existing, provision therefor being unconstitutional, see pars. 40, 41, this note, and par. 9, ante, § 770.

.94.

Witnesses-Accused can not be compelled to testify.-Under art. I, § 13 of our constitution, following a like provision in amendment V of constitution of United States, declaring that no person shall be compelled in any criminal case to be witness against himself, a person charged in accusation under this section can not be compelled to be witness against himself. -Thurston v. Clark, 107 Cal. 285, 288, 40 Pac. 435. See Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524.

an

95. Person is protected from being an enforced witness against himself by constitutions, national and state, inasmuch as the proceeding under this section is, in its aim and object, process for punishment of crime. -Thurston v. Clark, 107 Cal. 285, 289, 40 Pac. 435. See Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524.

96. Writ of prohibition will issue to restrain court from proceedings upon accusation which does not charge officer with violation of official duty with respect either to collection of illegal fees or refusal or neglect to perform official duties pertaining to his office.-Siebe v. Superior Court, 114 Cal. 551, 553, 46 Pac. 466.

As to prohibition, see, also, pars. 48-50, this note.

As to not being proper proceeding to raise question of right to trial by jury, see. par. 57, this note.

As to crime committed in whole or in part within state, see, ante, § 27, and note. As to evidence of locus delicti, see, post, § 1102, and note.

As to jurisdiction of particular offenses, see, post, § 781, and note.

As to place where crime committed, see note 44 Am. St. Rep. 79-84.

1. Commissioners' note says: "Of jurisdiction in state courts, and the concurrent jurisdiction of the state and federal courts, and the distinction existing between them [see Kerr's Cyc. Code Civ. Proc. (2d ed.), § 33, and notes.] Jurisdiction of the person is that obtained by the appearance of the defendant before the tribunal.-Bouv. Law Dict., vol. 1, p. 769; 9 Mass. 462. ritorial jurisdiction is the power of the tribunal, considered with reference to the territory within which it is to be exercised. -Bouv. Law Dict., vol. 1, p. 769; 9 Mass. 462. It has been long settled, more especially in criminal law and practice, that

Ter

consent confers no jurisdiction; it is the gift of the law. The jurisdiction of the text is that of the law. In the case of The People v. Quinn, 18 Cal. 122, it was held that unless it was so declared directly in the law repealing a criminal statute, an indictment or prosecution pending under it at the time of the repeal is not superseded or barred. See § 6, ante; People v. Fowler,

9 Cal. 85. As to the criminal jurisdiction of the courts of this state, see art. VI, § 6, state const. District courts have jurisdiction 'in all criminal cases not otherwise provided for.' Section 8-County courts have 'such criminal jurisdiction as the legislature may prescribe.' Section 9-Justice's jurisdiction not to trench on that of courts of record; their powers and duties to be fixed by law. See, also as to other tribunals; §§ 9, 910; People v. Blackwell, 27 Cal. 65; People v. Burney, 29 Cal. 459; People v. Johnson, 30 Cal. 98. State tribunals have no power to punish crimes against the laws of the United States as such.-People v. Kelly, 38 Cal. 145, 99 Am. Dec. 360. State courts have no jurisdiction of a charge of perjury committed by swearing falsely before the register of the United States land-office in a proceeding relating to the public lands of the United States."

2. Cognizable exclusively in courts of United States-Acts of United States official.-Deputy United States marshal, while in discharge of his duty in protecting and guarding judge of United States court, who kills person in defense of said judge, comes within exclusive jurisdiction of United States courts.-Cunningham v. Neagle, 135 U. S. 1, 34 L. ed. 55, sub nom. In re Neagle, 10 Sup. Ct. Rep. 658.

3.

Same-Concurrent jurisdiction. -The same act may, in some instances, be an offense against laws of both United States and state, but it is an offense against state laws only that can be punished by state.People v. Kelly, 38 Cal. 145, 148, 99 Am. Dec. 360.

4. Same Same. As to when state courts without jurisdiction on a charge of perjury in affidavit made before and filed in land-office relative to public lands.People v. Kelly, 38 Cal. 145, 149, 99 Am. Dec. 360. See Hoke v. People, 122 Ill. 511, 519, 13 N. E. 823; People v. Fonda, 62 Mich. 401, 407, 29 N. W. 26; In re Loney, 134 U. S. 372, 376, 33 L. ed. 949; In re Fair, 100 Fed. 157.