31. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics, or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.

1. Principals. In criminal law, a principal is "the actor in the commission of a crime." Bouv. Law Dict., tit. "Principal." At the common law, principals were of the first or second degree. A principal of the first degree was one who did the act himself, or by the means of an innocent agent. But to constitute him such, it was not necessary that he should be actually present when the offense was consummated; thus, in case of murder by poisoning, a man may have been a principal felon, by preparing and laying the poison. 1 Chit. Crim. L. 257; 4 Bl. 34. So if the offense was committed in his absence, through the medium of an innocent agent, as where he incited a madman to commit a crime, such person, though absent when the crime was committed, was liable as principal in the first degree. 1 Hale P. C. 514; 1 Chit. Crim. L. 257. Principals in the second degree were those who were present, aiding and abetting the commission of the fact. They were generally termed aiders and abettors. A person to be a principal in the second degree need not have been actually present as an eye-witness or ear-witness of the transaction. His presence may have been constructive, as, if with the intention of giving assistance, he was near enough to afford it, should the occasion arise. As where a person waited outside of a house to prevent surprise, while his companions were in the house committing a felony, such presence was sufficient to make him a principal in the second degree. 1 Russ. Crim. L. 27; Com. v. Knapp, 9 Pick. 496; 20 Am. Dec. 491. By sections 11 and 255 of the Criminal Practice Act, all distinction between principals in the first and in the second degree, and between principals and accessories before the fact, was done away with in this state, and all such are punishable as principals. Hittell Gen. Laws, secs. 1415, 1842; People v. Cryder, 6 Cal. 23; People v. Bearss, 10 Id. 68; People v. Outeveras, 48 Id. 19; People v. Ah Fat, Id. 62; People v. Cotta, 49 Id. 166. Sections 11 and 255, just referred to, have been re-enacted and made a part of this code in secs. 31 and 971. In People v.· Hodges, 27 Id. 341, it was held that though the common law distinction between principal and accessory is in the main obliterated, yet it is retained for the purposes of venue. See People v. Stakem, 40 Id. 599. Notwithstanding these sections, in proceeding against a person in this state for the commission of a crime, who, at the common law, would have been chargeable as an accessory, it is better to charge him as such, and not as principal. People v. Schwartz, 32 Id. 161, 164; People v. Valencia, 43 Id. 552. A party indicted as principal can not be convicted upon evidence tending to show that he was an accessory before the fact. People v. Trim, 39 Id. 75; see People v. Outeveras, 48 Id. 19. In People v. Campbell, 40 Id. 142, approved in People v. Mc

Gungill, 41 Id. 429, the correct rule for proceeding against an accessory before the fact is stated: "The accessory is to be indicted, tried, and punished as a principal; nevertheless the particular acts which establish that he aided and abetted the crime, and thus became, in law, a principal, must be stated in the indictment." An indictment for murder against an accessory before the fact, must allege the death of the person assaulted, and that the crime of murder was committed. People v. Crenshaw, 46 Id. 65. In People v. Vasquez, 49 Id. 562, the court instructed the jury that "it is no defense to a party associated with others in, and engaged in a robbery, that he did not propose or intend to take life in its perpetration, or that he forbade his associates to kill, or that he disapproved or regretted that any person was thus slain by his associates. If the homicide in question was committed by one of his associates engaged in the robbery, in furtherance of their common purpose to rob, he is as accountable as though his own hand had intentionally given the fatal blow, and is guilty of murder in the first degree;" and it was held that such instruction was correct. See also People v. Leith, 52 Id. 251; People v. Woody, 45 Id. 289; People v. Pool, 27 Id. 573.

32. All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are accessories.

1. Accessories.-An accessory is one who is not the chief actor in the perpetration of the offense, nor present at its performance, but who is in some way concerned therein. At the common law there were certain crimes, to the commission of which there could not be an accessory, but all persons engaged in the commission thereof were chargeable as principals. Of these were treason and all offenses below a felony. 1 Chit. Crim. L. 261. An accessory before the fact, is one that, being absent at the time of the actual perpetration of the felony, procures, counsels, commands, incites, or abets another to commit it. Id. 262. The distinction between accessories before the fact and principals has been abolished in this state. See note to last section. An accessory after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. 4 Bl. 37. In order to charge a person as accessory after the fact, the felony must be completed, he must know the felon to be guilty, and he must receive, relieve, comfort, or assist him. 1 Chit. Crim. L. 264; 1 Whart. Crim. L. (8th ed.), sec. 241; Wren v. Com., 26 Gratt. 952; Tully v. Com., 11 Bush, 154; People v. Hawkins, 34 Cal. 182. Knowledge of the commission of the felony must be brought home to the accused; and whether he had such knowledge is always a question of fact for the jury. Wren's case, 26 Gratt. 956. Any assistance given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to make a man accessory after the fact: as that he concealed him in his house, or shut the door against his pursuers until he should have an opportunity to escape; or took money from him to allow him to escape; or supplied him with money, a horse, or other necessaries, in order to enable him to escape; or that the principal was in prison, and the jailer was bribed to let him escape; or conveyed instruments to him to enable him to break prison. This and like assistance to one known to be a felon, will constitute one an accessory after the fact. 1 Hale, 619, 621; 2 Hawk.,

c. 29, sec. 26; 1 Whart. Crim. L. (8th ed.), sec. 241; Wren's case, 26 Gratt. 956. Merely permitting a felon to escape is not sufficient to impute guilt to the party so doing. 1 Hale, 619. So if a person agree for money not to prosecute the felon; or if knowing of a felony, fails to make it known to the proper authorities, he will not be punishable as an accessory after the fact. Wren's case, 26 Gratt. 957; 1 Whart. Crim. L. (8th ed.), sec. 242. Neither will a person who receives stolen property, and aids in the disposition of it, knowing it to be stolen, be chargeable as such. People v. Stakem, 40 Cal 599. "The true test whether one is accessory after the fact, is to consider whether what he did was done by way of personal help to his principal, with the view of enabling his principal to elude punishment; the kind of help appearing to be unimportant." 1 Bish. Crim. L. (6th ed.), sec. 695. At the common law, the conviction of one who has committed the crime must precede that of one charged as accessory. The record of conviction of the principal was prima facie evidence of his guilt against a person charged as accessory, but he might show that the principal was not guilty. 1 Arch. Crim. Pl. and Pr. 78. By statute, however, in most of the states, the offense of an accessory is made substantive and independent, and the accessory may, under such statutes, be tried independently of the principal, though in such cases the guilt of the principal must be alleged and proved. Pettes v. Com., 126 Mass. 242; State v. Cassady, 12 Kan. 550; 1 Whart. Crim. L. (8th ed.), sec. 237. In this state, it is provided by statute that an accessory to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted. Sec. 972. See People v. Newberry, 20 Cal. 439; People v. Bearss, 10 Id. 68. It said that he may be indicted and tried with the principal or separately. Id.; People v. Campbell, 40 Id. 129. The indictment must allege that the crime of the principal was committed before it was found and presented. People v. Thrall, 50 Id. 415.

33. Except in cases where a different punishment is prescribed, an accessory is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding two years, or by fine not exceeding five thousand. dollars.

TITLE III.

OF OFFENSES AGAINST THE SOVEREIGNTY OF THE STATE.

SECTION 37. Treason, who only can commit.

38. Misprision of treason.

37. Treason against this state consists only in levying war against it, adhering to its enemies, or giving them aid and com

fort, and can be committed only by persons owing allegiance to the state. The punishment of treason shall be death.

1. Treason against the state shall consist only in levying war against it, adhering to its enemies, or giving them aid and comfort. No person shall be convicted of treason unless on the evidence of two witnesses to the same overt act or confession in open court. Constitution of California, sec. 20, art. 1. See also U. S. Constitution, sec. 3, art. 3; C. C. P., sec. 1968. To constitute the specific crime of treason by levying war, war must be actually levied. Conspiracy to subvert by force the government is not treason. To conspire to levy war and actually to levy war are distinct offenses. Ex parte Bollinau, 4 Cranch, 75. To constitute a levying of war, there must be an assemblage of people, with force and arms, to overthrow the government, or resist the laws. United States v. Greathouse, 2 Abb. U. S. 364. The term enemies applies only to the subjects of a foreign power in open hostility with us, and does not embrace rebels in insurrection against their own government. Id. That two witnesses are required, refers to the proof on the trial, not to proceedings on preliminary examination, or before a grand jury. 2 Wall. jun. 138. Other decisions are: Druecker v. Salomon, 21 Wis. 621; United States v. Mitchell, 2 Dall. (Pa.) 348; United States v. Horie, 1 Paine, 265; United States v. Fries, 2 Whart. St. Tr. 482; United States v. Wiltberger, 5 Wheat. 76; United States v. Burr, 4 Cranch, 470; United States v. Pryor, 3 Wash. C. C. 234; People v. Lynch, 11 Johns. 549.

38. Misprision of treason is the knowledge and concealment of treason, without otherwise assenting to or participating in the crime. It is punishable by imprisonment in the state prison for a term not exceeding five years.

TITLE IV.

OF CRIMES AGAINST THE ELECTIVE FRANCHISE.

SECTION 41. Violation of election laws by certain officers a felony.

42. Fraudulent registration a felony.

43. Refusal to be sworn by or to answer questions of board of judges of election a misdemeanor.

44. Refusal to obey summons of board of registration a mis

demeanor.

45. Voting without being qualified, voting twice, and other election frauds, felonies.

46. Attempting to vote without being qualified.

47. Procuring illegal voting a misdemeanor.

48. Changing ballots or altering returns by election officers, fel

onies.

49. Inspectors unfolding or marking tickets guilty of a misdemeanor.

SECTION 50. Forging or altering returns a felony.

51. Adding to or subtracting from votes given a felony.
52. Persons aiding and abetting or concealing guilty of felony.
53. Intimidating, corrupting, deceiving, or defrauding electors,

a misdemeanor.

54. Furnishing money for elections except for specified purposes. 55. Unlawful offers to procure offices for electors.

56. Communicating such offer.

57. Bribing or offering to bribe members of legislative caucuses,

etc.

58. Preventing public meetings.

59. Disturbance of public meetings, misdemeanor.

60. Betting on elections.

61. Violation of election laws by persons not officers.

62. Printing or circulating tickets not in conformity with the election laws.

41. Every person charged with the performance of any duty, under the provisions of any law of this statę relating to elections, who willfully neglects or refuses to perform it, or who, in his official capacity, knowingly and fraudulently acts in contravention or violation of any of the provisions of such laws, is, unless a different punishment for such acts or omissions is prescribed by this code, punishable by fine not exceeding one thousand dollars, or by imprisonment in the state prison not exceeding five years, or by both.

1. Corrupt Motive Necessary. If a presiding officer at an election, acting honestly from the best judgment he can form, take a vote which turns out to be an illegal one, he is not liable. But if such officer, knowing a vote to be illegal, takes it corruptly, his position can not protect him from the just punishment of his offense. State v. McDonald, 4 Harr. 555.

42. Every person who willfully causes, procures, or allows himself to be registered in the great register of any county, knowing himself not to be entitled to such registration, is punishable by fine not exceeding one thousand dollars, or by imprisonment in the county jail or state prison not exceeding one year, or by both. In all cases where, on the trial of a person charged with any offense under the provisions of this section, it appears in evidence that the accused stands registered in the great register of any county, without being qualified for such registration, the court must order such registration to be canceled.

43. Every person who, after being required by the board of judges at any election, refuses to be sworn, or, being sworn, refuses to answer any pertinent question, propounded by such board, touching the right of another to vote, is guilty of a mis