OF THE STATE OF CALIFORNIA; AN ACT TO ESTABLISH A PENAL CODE. [Approved February 14, 1872.] The People of the State of California, represented in Senate and Assembly, do enact as follows: TITLE OF THE ACT. SECTION 1. Title and Divisions of this Code. 1. This Act shall be known as THE PENAL CODE OF CALIFORNIA, and is divided into Three Parts, as follows: Part I.-OF CRIMES AND PUNISHMENTS. Part II.-OF CRIMINAL PROCEDURE. Part III.-OF THE STATE PRISON AND COUNTY JAILS. PRELIMINARY PROVISIONS. SECTION 2. When this Act takes effect. 3. Not retroactive. 4. Construction of the Penal Code. 5. Provisions similar to existing laws, how construed. 6. Effect of Code upon past offenses. 7. Words, what included in definition. 8. What intent to defraud is sufficient. 9. Civil remedies preserved. 10. Proceedings to impeach or remove officers and others preserved. 11. Authority of Courts-martial preserved. punish for contempts. Courts of justice to 12. Of sections declaring crimes punishable. Duty of Court. 13. Punishments, how determined. 14. Witness' testimony may be read against him on prosecution for perjury. 15. "Crime" and "public offense" defined. 16. Crimes, how divided. SECTION 17. Felony and misdemeanor defired. 18. Punishment of felony, when not otherwise prescribed. 19. Punishment of misdemeanor, when not otherwise prescribed. 20. To constitute crime there must be unity of act and intent. 21. Intent, how.nanifested, and who considered of sound mind. 22. Drunkenness no excuse for crime. When it may be considered. 23. Certain statutes specified as continuing in force. 24. This Act, how cited. 2:. This code takes effect at twelve o'clock, noon, on the first day of January, eighteen hundred and seventy-three. 1. Applies to what. This section only applies to this code as originally passed. The date of the approval, and taking effect of the different amendments thereto, will be found at the end of each section amended or added. 3. No part of it is retroactive, unless expressly so declared. 1. Constitutional Prohibition.-The enactment of ex post facto laws is expressly forbidden by the federal constitution. Art. 1, secs. 9, 10. And by the constitution of California. A like provision is found in the constitutions of the several states. 2. Ex Post Facto Laws, What are.-Justice Chase thus defines ex post fucto laws: Art. 1, sec. 16. "1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. "2. Every law that aggravates a crime, or makes it greater than when committed. "3. Every law which changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. "4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender." Calder v. Bull, 3 Dall. 390. The expression "ex post facto" is technical, and is applied exclusively to penal statutes. Id. Such a law is one which punishes for an act not punishable when committed. Cummings v. Missouri, 4 Wall. 326. Or imposes additional punishment. Id. Or changes the rules of evidence so that less or different testimony is sufficient to convict. Id. Or which changes the punishment after conviction. Hartung v. The People, 22 N. Y. 106. Or changes the kind and character of punishment which attached to the offense when it was committed. Shepherd v. The People, 25 Id. 415; Hartung v. The People, 26 Id. 169. But it has been held that a statute which makes the breach of a pre-existing contract criminal, though not so prior to the passage of the act, is constitutional, though the soundness of this decision may well be doubted. Blann v. State, 39 Ala. 353. 3. Laws not Ex Post Facto.-Laws creating new tribunals, or conferring new jurisdiction, or enlarging or diminishing the powers of existing courts, are not ex post facto. State v. Sullivan, 14 Rich. 281; Com. v. Phillips, 11 Pick. 28. Nor are laws changing the place of trial. Gut v. The State, 9 Wall. 35. Nor laws changing criminal procedure. People v. Mortimer, 46 Cal. 114; Walston v. Com., 16 B. Mon. 15; Perry v. Com., 3 Gratt. 632. Α law which provides that one convicted of a second offense shall receive greater punishment than for a first offense, is not ex post facto, even when applied to the case of one who committed the first offense prior to the enactment of the law. Ex parte Gutierrez, 45 Cal. 429; People v. Stanley, 47 Id. 113; Ross' case, 2 Pick. 165; Rand v. Com., 9 Gratt. 738. 4. Rule of Construction.-A law will not be so construed as to give it a retroactive operation, unless it is clearly apparent that such was the intention of the legislature. Gates v. Salmon, 28 Cal. 320; Von Schmidt v. Huntington, 1 Id. 55; Hibernia S. & L. Society v. Jordan,, 6 Pac. C. L. J., 686. 5. Corresponding Sections.-The same section is found in each of the other three codes. 4. The rule of the common law, that penal statutes are to be strictly construed, has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice. 1. Construction of this Code. -By this section the common law rule, that all penal statutes are to be strictly construed, and never extended by implication, has been abrogated in this state, and one adopted more likely to give effect to the provisions of this code and promote justice. Ex parte Gutierrez, 45 Cal. 431; People v. Soto, 49 Id. 68; People v. West, Id. 610; People v. Tisdale, 6 Pac. C. L. J. 727. "The established rule of the common law undoubtedly was, that statutes of the character of the one now under consideration should receive a strict construction in favor of him upon whom a penalty was to be inflicted; but this rule has been abrogated by the code, which has constituted itself in this respect its own interpreter." Ex parte Gutierrez, supra; see People v. Tisdale, 6 Pac. C. L. J. 727. was, This rule of strict construction was not limited to statutes that were penal in their nature, but it extended to all statutes in derogation of the common law; and the uniform rule in this state, prior to the adoption of this section, that all such statutes, penal or otherwise, should be strictly construed, and limited in their operations to the strict letter of the law. Hotaling v. Cronise, 2 Cal. 60; People v. Buster, 11 Id. 221; Turner v. Tuolumne Co. Water Co., 25 Id. 400; Pina v. Peck, 31 Id. 362. The object of the legislature in passing this section was to do away with this rule of statutory construction and to adopt a more liberal one in its stead, with the view of furnishing the courts with a rule of procedure more conformable to the purposes of justice. Statutes, however, in affirmance of the common law, are to be construed as was the rule by that law. Baker v. Baker, 13 Cal. 95. In the construction and interpretation of all laws, resort is frequently had to the title of the act for assistance in arriving at the true meaning thereof. It can not be used for the purpose of restraining or controlling any positive provision, but in cases of doubt it is often resorted to as a means of ascertaining the intent of the legislature, and when considered with other parts of the law, may materially aid in removing ambiguities therein. Flynn v. Abbott, 16 Cal. 365; State v. Conkling, 19 Id. 512; People v. San Francisco, 36 Id. 602; Matter of Boston M. & M. Co., 51 Id. 624; Weed v. Maynard, 52 Id. 459; Harris v. Sup. of S. F., Id. 554; see Hagar v. Sup. of Yolo County, 47 Id. 232. The Codes of California, divided, as they are, into titles, chapters, and sections, and the subject-matter of each chapter being designated by |