pate the defendant of criminality was, that he was in such a condition mentally when he voted the second time as not to know that he had already voted, but, on the contrary, believed that he had not done so. It is laid down in the books on the subject, that it is an universal doctrine, that to constitute what the law deems a crime, there must concur both an evil act and an evil intent. Actus non facit reum nisi meus sit rea. 1 Bish. Crim. L., secs. 227, 229; 3 Greenl. Ev., sec. 13. Therefore, the intent with which the unlawful act was done must be proved, as well as the other material facts stated in the indictment, which may be by evidence either direct or indirect, tending to establish the fact, or by inference of law from other facts proved. When the act is proved to have been done by the accused, if it be an act in itself unlawful, the law in the first instance presumes it to have been intended, and the proof of justification or excuse lies on the defendant to overcome this legal and natural presumption. 3 Greenl. Ev., secs. 13, 14, 18. Now, when the statute declares the act of voting more than once at the same election by the same person to be a felony, it must be understood as implying that the interdicted act must be done with a criminal intention, or under circumstances from which such intention may be inferred. The defendant's counsel at the trial seems to have apprehended the true rule of law on the subject, and to have regarded the burden as on the defendant to show by evidence that the act of his voting the second time was not criminal, and for this purpose, evidence of his intoxicated and excited condition was submitted to the jury, in order that they might determine, under the rules of law governing in such cases, whether the defendant was conscious at the time of having voted before at the same election. The question was fairly before the jury, whether the defendant knew what he was about when he voted the second time. From the evidence in the case it appears he was very much intoxicated, but whether to a degree sufficient to deprive him of all knowledge of having already voted, was for the jury to decide.

"The law does not excuse a person of a crime committed while in a state of voluntary intoxication. In Rex v. Thomas, 7 Car. & P. 817, Parke, B., said to the jury: 'I must tell you that if a man makes himself voluntarily drunk, it is no excuse for any crime he may commit whilst he is so; he takes the consequences of his own voluntary act, or most crimes would go unpunished;' and to the same effect is the language of Alderson, B., in Rex v. Meakin, 7 Id. 297; and in harmony with this doctrine is the whole current of English authority. 1 Whart. Crim. L., sec. 39. Mr. Wharton says that in this country the same position has been taken with marked uniformity, it being invariably held that voluntary drunkenness is no defense to the factum of guilt; the only point about which there has been any fluctuation being the extent to which evidence of drunkenness is receivable to determine the exactness of the intent or extent of deliberation. Id., sec. 40. In Pigman v. The State, 14 Ohio, 555, it was held that a man who passes counterfeit money is not criminally liable if he is so drunk as to be incapable of knowing that it is counterfeit, and consequently of entertaining the intention to defraud, provided there was no ground to suppose he knew the money to be counterfeit before then; and in Swan v. The State, 4 Humph. 136, 141, the supreme court of Tennessee said: 'Although drunkenness, in point of law, constitutes no excuse or justification for crime, still, when the nature and essence of a crime is made by law to depend upon the peculiar state and condition of the criminal's mind, at the time and with reference to the act done, drunkenness, as a

matter of fact affecting such state and condition of the mind, is a proper subject for consideration and inquiry by the jury. The question in such case is, what is the mental status?' In Reg. v. Moore, 3 Car. & Kir. 319, the defendant was indicted for an attempt to commit suicide by drowning, and in defense it was alleged she was unconscious from drunkenness at the time of the nature of the act. The court was of the opinion that if she was so drunk as not to know what she was about, the jury could not find that she intended to destroy herself. Reg. v. Cruse, 8 Car. & P. 546; United States v. Roudenbush, 1 Bald. 517; Kelly v. The State, 3 Smed. & M. 518; Pirtle v. The State, 9 Humph. 663; Haile v. The State, 11 Id. 154.

"While the condition of the accused, caused by drunkenness, may be taken into consideration by the jury with the other facts of the case, to enable them to decide in respect to the question of intent, it is proper to observe that drunkenness will not excuse crime. People v. King, 27 Cal. 514. The inquiry to be made is, whether the crime which the defendant is accused of having committed has in point of fact been committed, and for this purpose whatever will fairly and legitimately lead to the discovery of the mental condition and status of the accused at the time, may be given in evidence to the jury, and may be considered by them in determining whether the defendant was in fact guilty of the crime charged against him. Great caution is necessary in the application of this doctrine, and those whose province it is to decide in such cases should be satisfied beyond a reasonable doubt, from all the facts and circumstances before them, that the unlawful act was committed by the accused when his mental condition was such that he did not know that he was committing a crime, and also that no design existed on his part to do the wrong before he became thus incapable of knowing what he was doing.

"We have said more respecting the character of the defense, or excuse imposed, than would have been necessary, but for the reason that it is important that those who may be guilty of violating the law may understand that a state of intoxication can be of no avail as an excuse for crime.

"The court told the jury, as we have seen, that the statute makes the act of voting more than once at the same election, and not the act of voting knowingly—that is, intentionally-more than once at any one election, a crime. The court further charged the jury, in substance, that evidence of voluntary intoxication is properly admissible as affecting crime only in those cases in which it is necessary to ascertain whether the accused was in a mental condition which enabled him to form a deliberate, premeditated purpose to commit the offense; but in the same connection the jury were told, in effect, that the case before them was not one of those cases in which the defendant could interpose the defense that he was intoxicated to a degree rendering him unconscious of what he had done, and of the wrong which he was doing. The court then instructed the jury, at the request of the defendant's counsel, that every crime involves a union of act and intent or criminal negligence. That the law does not punish a man for his intention, but that act and intent must unite to constitute a crime; but at the same time the court refused to modify in any degree the charge already given, though especially requested so to do.

"Taking these two portions of the charge together, we may understand the court as declaring:

"First. That a crime is constituted by the commission of a forbidden act,

united with a felonious intent on the part of him who does the act, or caused it to be done.

"Second. That the act of voting more than once at the same election was a crime, even though not done with knowledge on the part of him who so votes that he was voting the second time.

"Third. That the case before the jury was not one in which the defendant could show that by reason of his intoxicated condition, he did not know what he was doing when he voted the second time.

"We do not see how these charges involving the question of felonious knowledge or intention can be harmonized. The second and third stand in direct antagonism to the first, and the greater prominence was given to the one of which the defendant complains, and which we think to be erroneous. We are of the opinion the court erred also in excluding from the jury any consideration of the mental status of the defendant, by reason of his intoxicated condition when he voted the second time."

23. Nothing in this code affects any of the provisions of the following statutes, but such statutes are recognized as continuing in force, notwithstanding the provisions of the codes, except so far as they have been repealed or affected by subsequent laws:

1. All acts incorporating or chartering municipal corporations, and acts amending or supplementing such acts.

2. All acts consolidating cities and counties, and acts amending or supplementing such acts.

3. All acts for funding the state debt, or any part thereof, and for issuing state bonds, and acts amending or supplementing such acts.

4. All acts regulating and in relation to rodeos.

5. All acts in relation to judges of the plains.

6. All acts creating or regulating boards of water commissioners and overseers in the several townships or counties of the state.

7. All acts in relation to a branch state prison.

8. An act for the more effectual prevention of cruelty to animals, approved March thirtieth, eighteen hundred and sixtyeight.

9. An act for the suppression of Chinese houses of ill-fame, approved March thirty-first, eighteen hundred and sixty-six.

10. An act relating to the home of the inebriate of San Francisco, and to prescribe the powers and duties of the board of managers and the officers thereof, approved April first, eighteen hundred and seventy.

11. An act concerning marks and brands in the county of Siskiyou, approved March twentieth, eighteen hundred and sixty-six.

12. An act to prevent the destruction of fish in the waters of Bolinas bay, in Marin county, approved March thirty-first, eighteen hundred and sixty-six.

13. An act concerning trout in Siskiyou county, approved April second, eighteen hundred and sixty-six.

14. An act to prevent the destruction of fish in Napa river and Sonoma creek, approved January twenty-ninth, eighteen hundred and sixty-eight.

15. An act to prevent the destruction of fish and game in, upon, and around the waters of Lake Merritt or Peralta, in the county of Alameda, approved March eighteenth, eighteen hundred and seventy.

16. An act to regulate salmon fisheries in Eel river, in Humboldt county, approved April eighteenth, eighteen hundred and fifty-nine.

17. An act for the better protection of stock raisers in the counties of Fresno, Tulare, Monterey, and Mariposa, approved March twentieth, eighteen hundred and sixty-six.

18. An act concerning oysters, approved April twenty-eighth, eighteen hundred and fifty-one.

19. An act concerning oyster beds, approved April second, eighteen hundred and sixty-six.

20. An act concerning gas companies, approved April fourth, eighteen hundred and seventy.

24. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as THE PENAL CODE, adding, when necessary, the number of the section.

1. This Act, How Cited.-The constitution nowhere uses the word "code," but speaks of the way in which an "act" may be revised or amended. Art. IV, sec. 24. In Earle v. Board of Education, 55 Cal. 489, it was in effect said by Justice McKinstry, in his concurring opinion, that the proper title of what is commonly known as "The Political Code," is, "An act to establish a Political Code."

2

PART I.

OF CRIMES AND PUNISHMENTS.

TITLE I.

OF PERSONS LIABLE TO PUNISHMENT FOR CRIME. SECTION 26. Who are capable of committing crimes.

27. Who are liable to punishment.

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

1. Children under the age of fourteen, in the absence of clear proof that at the time of committing the act charged against them they knew its wrongfulness;

2. Idiots;

3. Lunatics and insane persons;

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

5. Persons who committed the act charged without being conscious thereof;

6. 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;

7. Married women (except for felonies) acting under the threats, command, or coercion of their husbands;

8. 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, and did believe their lives would be endangered if they refused. [Amendment, approved March 30, 1874; in effect July 1, 1874.

1. Subdivision 1-Infants.-The period of life at which a capacity for crime commences is not susceptible of being established by an exact rule which shall operate justly in every possible case. 1 Bish. Crim. L., sec. 368. At the common law a child under seven years of age was conclusively presumed incapable of committing any crime. 4 Bl. Com. 22; 3 Chit. Crim. L. 724; People v. Townsend, 3 Hill (N. Y.), 479; Willet v. Com., 13 Bush (Ky.),