state prison for not less than 30 days and not more than a year, is not in conflict with Const. art. 1, § 6, prohibiting cruel and unusual punishments; imprisonment in the county jail or state prison not being cruel or unusual, which relate only to punishments of a barbarous character and unknown to the common law, such as by burning at the stake, breaking on the wheel, [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3304-3309; Dec. Dig. § 1213.*

and the like.

Where a person of common understanding, by reading Pen. Code, § 337a, prohibiting poolselling, and a complaint charging a violation thereof, will know that accused is charged with acts prohibited by the statute, the complaint and the statute are sufficiently certain within Pen. Code, § 4, requiring the provisions of the Penal Code to be construed according to the fair import of their terms.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 13, 14; Dec. Dig. § 13;* Indictment and Information, Cent. Dig. §§ 193, 194; Dec. Dig. § 71.*]

Habeas corpus by Frank O'Shea for his discharge from imprisonment under a complaint charging a criminal offense. Petitioner remanded.

Carroll Cook (Henry Ach, of counsel), for petitioner. Attorney General Webb and Raymond Benjamin, Deputy Atty. Gen., for respondent.

deal with the policy of the law, as that belongs exclusively to the Legislature, which is composed of the representatives of the people and which acts for the people, and within the limits imposed by the Constitution is vested under our system with the right to voice the will of the people in public enactments; and it is ordinarily the judge of the expediency of creating new crimes, and of prescribing penalties for them, light or severe. The courts can only examine the question as to whether or not the Legislature in any particular case has violated the Constitution by going beyond or contrary to its prohibitions or mandates. The rule is well established that in such case much is left to the discretion and judgment of the Legislature; and the presumption always is that such discretion has in each case been wisely and justly exercised, and the law will not be held unconstitutional unless it is clearly in violation of the fundamental law. It has long been the practice in this country for the Legislature of the state, or the legislative body of municipal corporations, to pass laws prohibiting and punishing any practice or business the tendency of which, as shown by experience, is to weaken or corrupt the morals of those who follow it, or to encourage idleness, instead of habits of industry, and to prohibit and punish gambling in the various forms in which it is practiced. Such regulations, when not in conflict with general laws, or with the constitution or charter under which they are enacted, are universally upheld by the courts. In fact, it has been said that gambling in its many forms may be rightfully suppressed and punished, and that the question is no longer open for discussion in this country. Harper v. Commonwealth, 93 Ky. 290, 19 S. W. 737; Ex parte Tuttle, 91 Cal. 589, 27 Pac. 933. In the case at bar it is contended on behalf of the prisoner that the section of the Penal Code is unconstitutional and void.

COOPER, P. J. Petitioner seeks to be discharged from imprisonment under a complaint charging him with violating section 337a of the Penal Code, commonly called the "Race track bill." The charge is that he committed the crime of a felony on the 5th day of July, 1909, in this: That he "did willfully and unlawfully engage in poolselling and bookmaking, and record and register a certain bet and wager and sell pools upon the result of a certain trial and contest of skill, to wit, dogs, at and upon those certain grounds It is claimed, in the first place, that the known as Ingleside Coursing Park, situate act authorizing the trial judge in effect to on Ocean avenue near Lee street in the city make the crime either a felony or misdeand county of San Francisco and within meanor is an attempt to delegate legislative the state of California, contrary to the form, power to the trial judge, and hence is in force and effect of the statute in such case violation of article 3, § 1, of the Constitumade and provided and against the peace tion of the state, which reads as follows: and dignity of the people of the state of "The powers of the government of the state California." The section is entitled, "Pool- of California shall be divided into three sepselling, bookmaking, bets and wagers. Pen-arate departments, the legislative, executive alty," and, so far as material to the case at bar, reads as follows: "Every person who engages in poolselling or bookmaking at any time or place; * * * or who records or registers bets or wagers or sells pools upon the result of any trial or contest of man or beast or between men or beasts, *** is punishable by imprisonment in the county jail or state prison for a period of not less than thirty days and not exceeding one year." It is not the province of the court to

and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function pertaining to either of the others except as in this constitution expressly directed or permitted." The section does not delegate legislative power. It enumerates the various acts which are prohibited and made criminal, and such acts are made criminal by the express will of the Legislature. It prescribes what the law shall be in fu

A felony at common law was an offense | used in the Constitution. Cruel and unusual punishable by death, or to which the old punishments are punishments of a barbarous English law attached the total forfeiture of character and unknown to the common law. lands or goods; but the essential difference The word, when it first found place in the between a felony and a misdemeanor is now Bill of Rights, meant not a fine or imprisonpractically lost in England since the felony ment or both, but such punishment as that act of 1870, Bouvier's Law Dic.; Moz. & W. inflicted by the whipping post, the pillory, Law Dic. In this country it simply denotes burning at the stake, breaking on the wheel, the degree or class of crimes. Bishop's New and the like; or quartering the culprit, cutting Criminal Law, § 616. In fact, the distinction off his nose, ears or limbs, or strangling him between a felony and a misdemeanor is for to death. It was such severe, cruel, and unthe Legislature, and our Legislature has ex- usual punishments as disgraced the civilizapressly stated where a crime may be punish- tion of former ages, and made one shudder able by imprisonment in the state prison, with horror to read of them. Cooley on Conand also by fine and imprisonment in the stitutional Limitations (7th Ed.) p. 471 et county jail in the discretion of the court, such seq.; State v. McCauley, 15 Cal. 429; Whitcrime shall be deemed a misdemeanor for all ten v. State, 47 Ga. 297; State v. Williams, purposes after a judgment imposing a punish- 77 Mo. 310. The Legislature is ordinarily ment other than imprisonment in the state the judge of the expediency of creating new prison. The Legislature has designated the crimes, and prescribing the punishment, classification and the means whereby such whether light or severe. Commonwealth v. classification shall be ascertained. The dis- Murphy, 165 Mass. 66, 42 N. E. 504, 30 L. tinction between a judicial act and a legisla- R. A. 734, 52 Am. St. Rep. 496; Southern Extive act has been defined by Judge Field as press Co. v. Com., 92 Va. 59, 22 S. E. 809, follows: "The one determines what the law 41 L. R. A. 436. is and what the rights of the parties are with reference to transactions already had. The other prescribes what the law shall be in future cases arising under it. Wherever an act undertakes to determine a question of right or obligation or of property as the foundation on which it proceeds, such act is to that extent a judicial one, and not the exercise of legislative functions." Sinking Fund Cases, 99 U. S. 700, 25 L. Ed. 496. And our own Supreme Court has said: "Legislative power prescribes rules of conduct for the government of the citizen or subject, while judicial power punishes or redresses wrongs growing out of the violation of rules previously es

tablished. The distinction in short lies be

tween a sentence and a rule." Ex parte Shratween a sentence and a rule." Ex parte Shrader, 33 Cal. 279. In the case at bar the court will be called upon to declare the law and impose the penalty under the section passed by the Legislature making the act a crime. The Legislature has vested discretion in the court, but has not authorized the court to determine as to whether or not certain acts would con

stitute a crime.

It is further claimed that the section violates article 1, § 6, of the Constitution of the

Counsel for petitioner have devoted many pages of their brief to an analysis of the grammatical construction of the section of the Penal Code in question, contending that it is a complex sentence of over 30 lines, and of such phraseology as to make it impossible to determine what particular acts are necessary to be grouped together to constitute the crime intended to be denounced by the section. It is sufficient to say that the complaint charges the prisoner with doing certain acts which are prohibited by the section, and which, if proven, will subject him to a punishment thereunder. A person of common understanding would be reading the section and reading the complaint know that the defendant was charged with certain acts prohibited by the section. The provisions of the Penal by the section. The provisions of the Penal Code must be construed according to the fair import of their terms with a view to effecting their object and to promote justice (section 4). Of course, if the act charged is one which is not a crime under any section of the Code, the prisoner would have to be discharged, but this is not such case.

It is not necessary to discuss other questions, as we do not deem any of them of sufficient importance to justify us in discharging the prisoner.

We conclude that the section of the Penal

state, which prohibits cruel and unusual punishments. It is hardly necessary to discuss this contention, even if it could be raised by the prisoner, who may never be convicted, and, even if he should be convicted, might re- Code is constitutional, and that the complaint ceive a sentence of 30 days in the county jail. Imprisonment in the county jail or in the state prison is not unusual; in fact, it is the most common mode of punishment in all civilized countries. It is not cruel in the sense

states an offense thereunder.

Let the prisoner be remanded.

We concur: HALL, J.; KERRIGAN, J.

(Cr. 100.)

PEOPLE v. PINER. (Court of Appeal, Third District, California. Oct. 22, 1909.)

1. INDICTMENT AND INFORMATION (§ 129*)JOINDER OF OFFENSES-BURGLARY AND LARCENY.

An information may properly charge accused in one count with the crime of burglary, and, in another count, with the crime of grand lar ceny as a part of the same transaction, under Pen. Code, § 954, as amended by St. 1905, p. 772, c. 574, providing that "the indictment or information may charge different offenses or different statements of the same offense under separate counts, but they must all relate to the same act, transaction or event, and charges of offenses occurring at different and distinct times and places must not be joined."

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 414-418; Dec. Dig. § 129.*]

5. CRIMINAL LAW (§ 1172*)-APPEAL-HARMLESS ERROR-INSTRUCTIONS.

Where guilt is conclusively proved, an instruction that evidence of previous good character should be considered with great caution, although erroneous, is harmless.

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 1172.*]

6. CRIMINAL LAW (§ 781*) - INSTRUCTIONS —

ADMISSIBILITY OF CONFESSION.

that a person's declaration or voluntary confesIn a criminal prosecution, an instruction sion is always evidence against him, for the law presumes that a person will not say anything untrue against himself or his own interests, while true in itself, is improper, since, while the theory upon which voluntary confessions are admitted explaining it to the jury that the right of accused is of interest to the courts, there is danger in to a determination of all questions of fact by the jury may be violated.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 781.*]

2. BURGLARY (§ 31*)--EVIDENCE-ADMISSIBIL- 7. CRIMINAL LAW (§ 1172*)-APPEAL-HARM

ITY.

The gist of the crime of burglary is in the entry of the building with the intent to commit any of the crimes mentioned in Pen. Code, § 459, and it is therefore immaterial whether the proof shows the actual commission of larceny or other felony, if the intent to do so is present; but proof that a larceny or felony had been committed in the building by the person making the entry is competent, not alone to show the intent, but also the fact of the entry.

[Ed. Note. For other cases, see Burglary, Dec. Dig. § 31.*]

3. CRIMINAL LAW (§ 519*) - EVIDENCE-ADMISSIBILITY OF CONFESSION.

After a store had been broken into and robbed of a large sum of money, accused, a cousin of the proprietor, came to him and told him that he had heard that he (accused) was under suspicion, and was told by the proprietor that such was a fact, that he was making an investigation and would like to have accused, if he was not guilty, help him to clear up the matter, and that if he was guilty that he would help him out of the trouble, but accused at that time protested his innocence. On the following day accused again called on the proprietor, telling him he was in trouble, whereupon the proprietor said that he would do all that he could to help him, and this was followed by confession by accused that he took the money. The two then made an arrangement by which the money could be restored. Held, that the confession was not open to the objection that it was involuntarily made, as accused knew that the proprietor was not an officer of the law and had no authority to guarantee him immunity from prosecution, and the promise made was simply to help him if he was in trouble.

[Ed. Note. For other cases, see Criminal Law, [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dec. Dig. § 519.**] 4. CRIMINAL LAW (§ 811*) - INSTRUCTIONS EVIDENCE AS TO GOOD CHARACTER.

An instruction, in a prosecution for grand larceny, that evidence of previous good character should be considered with great caution, is erroneous, as evidence of good character is to be considered in the same manner as evidence of any other essential fact, being in aid of the presumption of innocence, and, while all evidence in a criminal case should be considered with that deliberation which will insure a just verdict, it is not within the province of the court to select a particular species of evidence for a special caution to the jury.

LESS ERROR-INSTRUCTIONS.

harmless; the evidence of defendant's guilt beThe instruction, although improper, was ing uncontradicted.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3154-3163; Dec: Dig. § 1172.*]

Appeal from Superior Court, Lake County; M. S. Sayre, Judge.

William A. Piner was convicted of grand larceny, and appeals. Affirmed.

T. J. Geary and Bond & Churchill, for appellant. C. M. Crawford, Dist. Atty., for the People.

HART, J. The defendant, having been convicted of the crime of grand larceny, brings the cause to this court on an appeal from the judgment and from the order refusing to grant his motion for a new trial. The appellant claims a reversal for these reasons: (1) That the demurrer to the information should have been sustained because there are set out in the accusatory pleading two separate and distinct offenses; (2) that the court erred to his prejudice in allowing, over his objections, the testimony of the witness Robison purporting to give a confession of guilt by the defendant, the specific contention upon this point being that said alleged confession was not voluntarily made, and therefore, in law, was no confession at all; (3) that the court committed prejudicial error in giving certain instructions to the jury.

1. The information, in the first count thereof, charges the defendant with the crime of burglary, alleging that, on the 23d day of August, 1908, he burglariously entered the store of one P. Q. Robison, at Kelseyville, Lake county, with the intent, etc. The second count of the information charges the crime of grand larceny in the following lan guage: "The said William A. Piner, as a part of the same act, transaction, or event, [Ed. Note. For other cases, see Criminal Law, alleged in the first count of this information, Cent. Dig. 88 1787, 1969-1972; Dec. Dig. aforesaid, on the 23d day of August, 1908, 811.*] at the said county of Lake, and before the

filing of this information, willfully, unlaw- | think admits of no possible room for debate. fully, and feloniously did take, steal, and If the language of the section with regard carry away from the aforesaid store of P. Q. Robison, aforesaid, 25 $20 gold pieces, of the gold coin of the United States of America, the personal property of one Matt L. Rowden, of the value of $500, lawful money of the United States; contrary to the form," etc. The contention of the appellant is, as before suggested, that two distinct offenses cannot properly be charged in an indictment or information, and that, as two distinct offenses are charged in the information upon which the defendant was tried and convicted, the court erred in its order overruling the demurrer. The Attorney General insists that the information conforms to the provisions of section 954 of the Penal Code, as amended by the Legislature of 1905 (St. 1905, p. 772, c. 574), and that the demurrer was therefore properly overruled.

to this proposition were not itself so clear and unquestionable as that it would require the aid of construction in order to gather its true meaning, there would be no necessity for going further than that part of the section itself wherein it is expressly provided that "charges of offenses occurring at different and distinct times and places must not be joined." It will thus be observed that the Legislature, while recognizing the fact that no danger of violating any of the substantial rights of an accused person could result from charging in an indictment or information two different offenses which have arisen from exactly the same particular circumstances-that is, from the same act, transaction, or event-was careful to protect and safeguard such person against the harm which would inevitably follow the charging of two different offenses occurring at different times and places, and which, in the very nature of things, could have no possible bearing upon or relation to each other whatever. We can discern no distinction in principle between the provision authorizing the charging of two different offenses relating to the same act or event and those provisions of our criminal law which authorize a jury in a case where the offense charged embraces more than one crime-as, for instance, the crime of murder, within which is included manslaughter, or robbery, within which is included larceny, or assault with intent to murder, within which is included assault with a deadly weapon and often simple assaultto return a verdict of guilty of any one of the offenses comprehended within the one charged which the evidence justifies or warrants.

The section of the Penal Code just mentioned reads: "The indictment or information may charge different offenses, or different statements of the same offense, under separate counts, but they must all relate to the same act, transaction, or event, and charges of offenses occurring at different and distinct times and places must not be joined. The prosecution is not required to elect between the different offenses or counts set forth in the indictment or information, but the defendant can be convicted of but one of the offenses charged, and the same must be stated in the verdict." So far as we are advised to the contrary, this is the first occasion on which the foregoing section, in its amended form, has been before any of the reviewing courts. Prior to its amendment by the Legislature of 1905, the section read: "The indictment or information must charge but one offense, but the same offense may be set forth in different forms under different counts," etc. From a comparison of the section as it formerly read with the section as, under the amendment, it now reads, it would seem to be very clear that there has been, practically, no material change effected by the amendment except in that part of it authorizing the charging of different offenses in the same indictment or information where such offenses "relate to the same act, trans- a single act or event, could be proved, and, action or event." The other provisions of the section merely authorize, in perhaps a little different language, what the old section declared could be done, or, in other words, are only a re-enactment of the old section with some immaterial verbal changes.

We can perceive no reason for holding that the Legislature did not mean exactly what the language of the section very plainly and unambiguously declares. That it was intended, by the amendment, to authorize the statement in an indictment or information of two or more distinct offenses, where the same grow out of precisely the same act, transac

There is no claim put forward here that section 954 of the Penal Code, as amended in 1905, violates any provision of the Constitution, nor can we see how such a claim could be sustained if it were urged. As we have suggested, there is no ground for apprehending that any injury would result to a defendant from the method of criminal pleading authorized by section 954, for only one set of facts and circumstances, directed to

of course, it would not only be competent, but absolutely necessary, to prove those same facts and circumstances where but one offense was charged. Therefore we can think of no principle forbidding the Legislature to authorize the setting out of two distinct offenses in as many counts in cases where the circumstances under which a criminal act is committed are such as to inspire in the prosecuting officer serious doubt as to which of two offenses the evidence would show had been committed. Such a method, while, obviously, inocuous in its effect upon any of the rights of the accused, must result