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THE PENAL CODE

OE

CALIFORNIA

AN ACT TO ESTABLISH A PENAL CODE.

[Approved February 14, 1872.]

INTRODUCTORY NOTE.

1. Amendment of 1880. 2. As to power to prescribe crime. 3. As to the parties to-Rights of state. 4. Nature of crime-Penalty. 5. Municipal corporations — Applicability of

Penal Code to.

1. Amendment of 1880.-On April 9, 1880, the legislature passed an act entitled “An act to amend sections 682, 784, 787, 788, 789, 790, 792, 800, 801, 802, 806, 888, 949, 950, 951, 953, 954, 955, 957, 958, 959, 960, 961, 964, 965, 966, 967, 968, 970, 971, 972, 976, 977, 981, 982, 985, 988, 989, 990, 996, 997, 998, 999, 1004, 1005, 1008, 1009, 1012, 1018, 1019, 1021, 1022, 1024, 1033, 1043, 1047, 1048, 1052, 1065, 1074, 1093, 1095, 1098, 1099, 1100, 1103, 1104, 1113, 1114, 1115, 1117, 1121, 1125, 1126, 1131, 1141, 1148, 1150, 1158, 1159, 1160, 1165, 1170, 1185, 1187, 1188, 1200, 1207, 1238, 1284, 1285, 1289, 1310, 1326, 1335, 1346, 1349, 1354, 1358, 1368, 1370, 1373, 1382, 1383, 1395, 1396, 1401, 1429, and to repeal $$ 969 and 1025 of the Penal Code and to add a new section thereto, to be known as $ 809, to provide for prosecutions by information, and to adapt the provisions of said code thereto" (Code Amdts. 1880, Pen. pt., p. 10). This act came before the supreme court for consideration in the case of People v. Oates, 142 Cal. 37, 75 Pac. 337, 338, in which it was held not to be unconstitutional, as being a revision of the Penal Code requiring a republication of the entire code; the court holding that the object of the act was only to amend sections enumerated, each section of the amendatory act reading: "Section No. - of the Penal Code is hereby amended so as to read as follows." The court further said: "The phrase, 'An act to amend certain sections and to repeal certain sections,' expressed the title as to that part of the act.”—People v. Oates, 142 Cal. 37, 75 Pac. 337, 338, following San Francisco & N. P. R. Co. v. State Board, 60 Cal.

12, 34; People v. Parvin, 74 Cal. 549, 16 Pac. 490; Beach v. Von Detten, 139 Cal. 462, 73 Pac. 187.

2. As to power to prescribe crime. Power to define offenses and fix penalties therefor rests entirely with the legislature. We are governed by provisions of our Penal Code; it is not necessary or permissible to inquire what was the rule of the common law in cases where the code speaks. We have no criminal common law. The only source of our criminal law and criminal procedure is the Penal Code itself; and by it alone are offenses to be measured. The fact that criminals may be subjected to different degrees of punishment for the same offense in different courts, in the exercise of a limited discretion, does not affect the validity of the law.-See People v. West, 49 Cal. 610; Ex parte Kearny, 55 Cal. 212, 229; Estate of Apple, 66 Cal. 432, 6 Pac. 7; People v. Perini, 94 Cal. 573, 29 Pac. 1027; Matter of Mulholland, 97 Cal. 527, 32 Pac. 568.

3. As to parties to-Rights of state.To every crime there are three parties: (1) the prosecutor, (2) the defendant, and (3) the state. Hence, a prosecution by the state for a crime, as embezzlement, is not barred by a ratification of the act by the party injured.--State v. Frisch, 45 La. Ann. 1283, 14 So. 132.

4. Nature of crime-Penalty.-A description or definition of acts necessary to constitute a crime does not make the commission of such acts a crime, unless there is a punishment annexed to it. Punishment is as necessary to constitute a crime as definition, and the repeal of either is a repeal of the whole law creating the crime. The law does not recognize a man's criminal intentions as a crime, and he can only be prosecuted for an offense actually committed, and not for the offense which he may have in

tended to commit. The question whether

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