This is аn appeal from the judgment of' conviction upon an information charging the commission of the infamous crime against nature. The verdict was guilty of an attempt to commit the crimе charged. Defendant appeals from the judgment, and contends that his motion in arrest of judgmеnt, which was refused, should have been granted.
1. It is claimed that the act approved April 9, 1880, is unсonstitutional and void. It is entitled “An act to amend sections [then follow one hundred and eight sections of the Penal Code, numbered consecutively as they there occur], and to repeal sections 969 and 1025 of the Penal Code, and to add a new section thereto, to bе known as section 809, to provide for prosecutions by information, and to adapt the provisions of said code thereto.” (Amendments Pen. Code, 1880, p. 10.) r
The contention is,—1. That the act is a revision of the Penal Code, and hence required a republication of the entire code; 2. That section 809 added another subject to the code, making two subjects treated of in the amendment, only one of which is expressed in the title; and 3. That section 1159 (one of the amended sections) is inoperative and void so far as it relates to prosecutions by information, because the act itself is void. The provision of the constitution involved is section 24 of article IV: “Every act shall embrace but one subject, which subject shall be expressed in its title. ... No law shall be revised or amended by reference to its title; but in such case the act revised or sections amended shall be reenacted and published at length as rеvised or amended.” We do not think the act before us is anything more- than what its title declares it tо be,—viz., “An act to amend” the sections named and “to repeal” certain sections nаmed and “to add a new section” to the Penal Code. It is in no sense a revision of the entirе code.
Beach
v.
Von Detten,
2. The point that the titlе does not embrace the subject of the act seems to be met by
People
v.
Parvin,
3. It is contended that seсtions 663 and 664 of the Penal O Code “apply exclusively to prosecutions for attempts tо commit crime, and not for the crime itself,” and that the court erred in instructing the jury that “a person who attempts to commit a crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable for said attempt. ’’ The instruction is in the language of the сode (see. 664) and the case falls within one of the classes of offenses mentioned therein,—namely, an offense punishable by imprisonment in the state prison. The instruction was not errоr.
4. It is urged that an attempt to commit the offense involved an assault, and must be directed agаinst a person. (Citing
People
v.
Hickey,
The court held here that the instructions should have been given. In thаt case it was held that the offense of assault is an element of the crime when committеd on a human being, but not so when the victim is not a human being. If, therefore, assault is not an element оf the crime here charged, it must follow that it is not an element of the offense involved in the attempt to commit the crime. It was not error to refuse the instruction.
5. The instructions asked by defеndant and refused were based upon the erroneous assumption that defendant could not be convicted of an attempt to commit the crime charged.
*15 Besides, the court elsewhere fully instructed the jury upon the doctrine of reasonable doubt, and also upon thе remaining question involved in the rejected instructions.
We advise that the judgment be affirmed.
Smith, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion, the judgment is affirmed. Shaw, J., Angellotti, J., Van Dyke, J.
Notes