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who, though they are neither such minors nor non-residents, are unrepresented. The order must specify the names of the parties so far as known for whom the attorney is appointed, who is thereby authorized to represent such parties in all such proceedings had subsequent to his appointment. The attorney may receive a fee, to be fixed by the court, for his services, which must be paid in the case of estates of decedents out of the funds of the estate as necessary expenses of administration, and upon distribution may be charged to the party represented by the attorney, and in guardianship matters shall be paid as the court may direct. If for any cause, it becomes necessary, the court may substitute another attorney for the one first appointed, in which case the fee must be proportionately divided. The non-appointment of an attorney will not affect the validity of any of the proceedings. [C. L. § 4299*.

Cal. C. Civ. P. ? 1718*.

TITLE 75.

PENAL CODE.

4051. Penal Code.

CHAPTER 1.

PRELIMINARY PROVISIONS.

Title known as Penal Code. This title shall be known as the [C. L. § 4386*.

Cal. Pen. C. 1*.

4052. Provisions not to be strictly construed. The rule of the common law that penal statutes are to be strictly construed has no application to the Revised Statutes. The provisions of the Revised Statutes are to be construed according to the fair import of their terms with a view to effect the objects of the statutes and to promote justice. [C. L. § 4369.

Cal. Pen. C. 24.

Statutes to be liberally construed, 22489. Liberal construction, civil procedure, 22 2986, 3008, 3285. No part of revised statutes retroactive unless expressly so declared, 2490. Effect of repeal by revised statutes, ?? 2484-2486.

It is no defense to an indictment for charging illegal fees, that the defendant honestly believed the law to be that he could charge fees under the by-laws of the mining district. People v. Monk, 8 U. 35; 28 P. 1115.

4053. Sense in which certain words are used herein. Whenever the terms mentioned in this chapter are employed in the penal code, they are employed in the senses hereafter affixed to them, except where a different sense plainly appears:

1. The term "wilfully," when applied to the intent with which an act is done or omitted implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.

2. The terms "neglect," "negligence," "negligent," and "negligently," import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns. 3. The term "corruptly' imports a wrongful design to acquire or cause some pecuniary or other advantage to the person guilty of the act or omission referred to, or to some other person.

4. The terms "malice" and "maliciously" import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or by presumption of law.

5. The term "knowingly" imports only a knowledge that the facts exist which bring the act or omission within the provisions of the code. It does not require any knowledge of the unlawfulness of such act or omission.

6. The term "bribe" signifies any money, goods, right in action, property, thing of value, or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence unlawfully the person to whom it is given in his action, vote, or opinion in any public or official capacity.

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7. When the term person " is used in this code to designate the party whose property may be the subject of any offense, it includes this state, and any state, government, or country which may lawfully own any property within this

state, and all public and private corporations or joint associations, as well as

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knowingly does. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. Reynolds v. U. S., 1 U. 319; 98 U. S. 145.

Where it is certain that one of two persons did the criminal act, but it is uncertain which is the guilty agent, neither of them can be convicted, but such is not the rule where the two persons had a common purpose. People v. Olsen, 6 U. 284; 22 P. 163.

4054. 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. [C. L. § 4372.

Cal. Pen. C. 28.

4055. Civil remedies not affected by penal statutes. 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. [C. L. § 4373.

Cal. Pen. C. 29.

Civil right not merged in criminal prosecution, ? 2491.

4056. Power of impeachment or removal not affected hereby. 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 proceding authorized by law to carry into effect such impeachment, removal, deposition, or suspension. Cal. Pen. C, 10.

Felonious misconduct in office, forfeiture, disqualification, 24066.

4057. Military tribunals and punishment for contempt not affected hereby. 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. § 4374.

Cal. Pen. C. ? 11.

Powers of courts-martial, ?? 1481–1490.

[C. L.

4058. Penalty determined and imposed by the 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. [C. L. § 4375.

Cal. Pen. C. 12.

4059. Penalty between limits determined by the court. 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. [C. L. § 4376.

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4060. Witness never exempt from proceedings for perjury. The various sections of this code which declare that evidence obtained upon the examination of a person as a witness cannot be received against him in any criminal proceedings, do not forbid such evidence being proved against such person upon

any proceedings founded upon a charge of perjury committed in such examination. [C. L. § 4377.

Cal. Pen. C. 14.

Perjury, 22 4122-4130.

4061. Crime 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, any of the following punishments:

1. Death.

2. Imprisonment.

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5. Disqualification to hold and enjoy any office of honor, trust. or profit in

this state.

Cal. Pen, C.

[C. L. § 4378.

15.

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by judicial proceedings, Con. art. 6, sec. 21; 22 4565-4580.

4062. Crimes, how divided. Crimes are divided into:

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4063. Felony defined. Misdemeanor defined. A felony is a crime which is or may be punishable with death, or by imprisonment in the state prison. Every other crime is a misdemeanor. [C. L. § 4380.

Cal. Pen. C. 17*.

Prohibited acts for which no penalty is imposed are misdemeanors, 4154. Wilful omission to per

form a duty prescribed by law, a misdemeanor, 24153.

4064. Penalty for felony when not prescribed. Corporations. Except in cases where a different punishment is prescribed by law, every offense declared to be a felony is punishable by imprisonment in the state prison not exceeding five years. In all cases where a corporation is convicted of an offense for the commission of which a natural person would be punishable as for a felony. and there is no other punishment prescribed by law, such corporation is punishable by a fine of not less than five hundred and not more than ten thousand dollars. [C. L. § 4381*.

N. Dak. (1895) 6811; Cal. Pen. C. 2 18*.

Court to determine and impose penalty, 22 4058, 4059. Criminal action against corporation, ?? 5071–5078. 4065. Penalty for misdemeanor when not prescribed. Corporations. Except in cases where a different punishment is prescribed by law, every offense declared to be a misdemeanor is.punishable by imprisonment in a county jail not exceeding six months, or by a fine in any sum less than three hundred dollars, or by both. In all cases where a corporation is convicted of an offense for the commission of which a natural person would be punishable as for a misdemeanor, and there is no other punishment prescribed by law, such corporation is punishable by a fine not exceeding one thousand dollars. [C. L. § 4382*.

Cal. Pen. C. 19*.

Court to determine and impose penalty, ?? 4058, 4059.

4066. Felonious misconduct in office. Forfeiture. Disqualification. The conviction of any state, county, city, town, or precinct officer of a felony involving misconduct in office, involves as a consequence, in addition to the punishment prescribed by law, a forfeiture of his office, and disqualifies him ever afterwards from holding any public office in this state.

Mont. Pen. C. 198*.

Disqualification by crime, ?? 4111, 4317.

4067. Who deemed habitual criminal. Penalty. Whoever has been previously twice convicted of crime, sentenced, and committed to prison, in this or other state, or once in this or once at least in any other state, for terms of not less than three years each, shall upon conviction of a felony committed in this state other than murder in the first or second degree, be deemed to be an habitual

any

criminal, and shall be punished by imprisonment in the state prison for not less than fifteen years; provided, that if the person so convicted shall show to the satisfaction of the court before which such conviction was had that he was released from imprisonment upon either of said sentences, upon a pardon granted on the ground that he was innocent, such conviction and sentence shall not be considered as such under this section. ['96, p. 262.

4068. Union of act and intent to constitute crime. In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence. [C. L. § 4383.

Cal. Pen. C. 20.

Intoxication as affecting intent, 4070.

4069. Intent, how manifested. Who are of sound mind. The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots, nor lunatics, nor affected with insanity. [C. L. § 4384.

Cal. Pen. C. 21.

4070. Drunkenness no excuse for crime. Mitigation. No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence

of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act. [C. L. § 4385.

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4071. All persons capable of committing crime, except following. All persons are capable of committing crimes except those belonging to the following classes:

1. Children under the age of seven years.

2. Children between the ages of seven years and fourteen years, in the absence of clear proof that at the time of committing the act charged against them they knew its wrongfulness.

3.

4.

5.

Idiots.

Lunatics and insane persons.

Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.

6.

Persons who committed the act charged without being conscious thereof. 7. Persons who committed the act or made the omission charged, through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.

8. Married women, unless the crime be punishable with death, acting under the threats, command, or coercion of their husbands.

9. Persons, unless the crime be punishable with death, who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to believe, and did believe, their lives would be endangered if they refused. [C. L. § 4387.

Cal. Pen. C. 3 26*.

Intoxication no excuse for crime, 4070. Who

are of sound mind, 2 1069. Insane person defined, 2498.

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