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TITLE IX.

OF CRIMES AGAINST THE PERSON AND AGAINST PUBLIC DECENCY AND GOOD MORALS.

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1. Construction of section-Subdivision 4. -Where the defendant claimed to be a peace officer and told the prosecutrix that unless she consented to have intercourse with him he would arrest her and under such circumstances she did consent, the mere threat to arrest her would not be a threat to use such force and violence as is described herein.-People v. Cavanaugh, 30 Cal. App. 432, 158 Pac. 1053.

2. Evidence-Under subdivision 1.-The refusal in a prosecution of rape upon a female under the age of consent to permit the grandmother of the prosecutrix to give her opinion as to whether the sexual organs of the prosecutrix had ever been entered by a human being, is not prejudicial to the defendant, in view of the verdict of conviction of an attempt to commit rape.-People v. Price, 26 Cal. App. 544, 147 Pac. 591.

3. Where the prosecutrix admits on cross-examination that she had told another girl that she had had improper relations with only one person, not the defendant, no prejudicial error is committed in sustaining objections to a series of questions designed to compel admissions that on certain specified occasions the witness had been questioned about her illicit relations with defendant and that on those occasions she had made statements inconsistent with her testimony on direct examination as to the time when she first had any illicit relations with him, where it appears that the witness was later permitted to answer other questions whereby virtually she admitted that she had made the statements referred to in the excluded questions.-People v. Kilfoil, 27 Cal. App. 29, 148 Pac. 812.

4. The admission in evidence on the redirect examination of the prosecutrix, over defendant's objection that no foundation had been laid therefor, of certain capsules or pellets identified by the witness as having been given her by the defendant for the purpose of preventing pregnancy, proper.-People v. Kilfoil, 27 Cal. App. 29, 148 Pac. 812.

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5. Where the prosecutrix is under the age of consent, her relations with other men as tending to show want of chastity are immaterial.-People v. Kilfoil, 27 Cal. App. 29, 148 Pac. 812.

6. In a prosecution for rape, objections to questions asked of the prosecutrix on cross-examination as to her wayward conduct are properly sustained as not being

within the proper scope of cross-examination.-People v. Burrows, 27 Cal. App. 428, 150 Pac. 382.

7. In a prosecution of a father for rape upon his own daughter, proof that the latter was a disobedient and willful child is not admissible without first showing her general conduct.-People v. Burrows, 27 Cal. App. 428, 150 Pac. 382.

8. The defendant in such a prosecution is not prejudiced by permitting a witness to state the time when the prosecutrix first told the witness that her father had had intercourse with her, where the defendant elicited the statement on the cross-examination of the witness that the prosecutrix had so charged her father.-People v. Burrows, 27 Cal. App. 428, 150 Pac. 382.

9. Evidence of prior acts of sexual intercourse between the defendant and the complaining witness is admissible as tending to show the adulterous disposition of the defendant.-People v. Converse, 28 Cal. App. 687, 153 Pac. 734.

10. —Necessity for corroboration (subdivision 1).In the prosecution of the crime of rape upon a female under the age of consent, it is not required that her testimony should be supported by corroboration in order to sustain a conviction; she is not an accomplice in the commission of the crime. -People v. Vernon, 29 Cal. App. 424, 155 Pac. 1021.

11. Instructions. An instruction "that evidence of previous acts of sexual intercourse between the defendant and the prosecutrix and of improper familiarities on the part of the defendant toward and with the prosecutrix, both before and after the time charged in the information, is received and admitted in evidence to prove the adulterous disposition of the defendant herein, and as having a tendency to render it more probable that the act of sexual intercourse charged in the information was committed on or about the thirteenth day of September, 1913, and for no other purpose," is not obnoxious to the objection as charging upon questions of fact.-People v. Price, 26 Cal. App. 544, 147 Pac. 591.

12. In a prosecution for rape it is not error to refuse an instruction on the weight of a particular part of the evidence, or which singles out for comment the testimony of a particular witness. Neither is it error to refuse an argumentative instruction. People v. Converse, 28 Cal. App. 687, 153 Pac. 734.

13. In a prosecution for the crime of rape committed upon a married woman, it is reversible error to refuse to instruct the jury, at the request of the defendant, advising them that if they found that the prosecutrix's consent to the intercourse was obtained because of her belief that the defendant was an officer and that he was

about to arrest her for alleged intoxication, and not because of the threats to do her great bodily injury, the defendant was entitled to an acquittal, where the prosecutrix made conflicting statements as to whether or not the claim that the defendant was an officer and about to arrest her was made before or after the intercourse had taken place. People v. Cavanaugh, 30 Cal. App. 432, 158 Pac. 1053.

14. In such a prosecution there is no error in refusing to instruct the jury that the crime charged would not be made out if it appeared that the prosecutrix's submission was brought about because of her belief that the man was an officer and that he would arrest her for alleged intoxication, where the evidence fails to show any statement as to the defendant being an alleged officer prior to the completion of the act of intercourse.-People v. Cavanaugh, 30 Cal. App. 432, 158 Pac. 1053.

15. An instruction that resistance must exist to the full extent of the ability of the prosecutrix throughout the entire act, is properly refused, as the crime was complete at the time of physical penetration.-People v. Cavanaugh, 30 Cal. App. 432, 158 Pac. 1053.

§ 264.

1. Punishment for rape Instructions (subd. 1).-An instruction requested by the defendant explaining the law as it is declared in section 264 and subdivision 1 of section 261 of the Penal Code, relating to the power vested in juries to determine the nature and extent of the punishment, where the prosecution is based upon such subdivision, and declaring that it is their duty to consider all the circumstances of the case with a view to a just determination of which mode of punishment authorized by section 261 "will best conserve the interest of society and the interest of the defendant," and that the policy of the law is opposed to the infliction of "unusual or severe punishment," is properly refused.-People v. Clayberg, 26 Cal. App. 614, 147 Pac. 994.

§ 269b.

ABDUCTION FOR ILLICIT RELATION. 1. Construction of section. 2. Amendment of 1911.

3. Indictment-Allegation as to time. 4, 5. Evidence-Admissibility of.

1. Construction of section. In order to warrant a conviction of the offense denounced in section 269b of the Penal Code, there must be an assumption of the conjugal relations, such as sleeping together, occupying the same room or bed at night, having sexual intercourse with each other as though married, and many other relations that are summed up appropriately by the words "cohabiting with." Cohabitation alone is not enough under the code; there must be sexual intercourse between them. Adultery and occasional acts are not enough. -People v. Woodson, 29 Cal. App. 531, 156 Pac. 471.

2. -Amendment of 1911.-We are of the opinion that section 269b of the Penal Code, as amended in 1911, was intended by the legislature working its amendment through the elimination from the former section of the words "open and notorious," to have application to those persons who, while each was simulating continence in their marital relations, were at the same time maintaining such a course of illicit and adulterous conduct with another of the opposite sex as would constitute a counterfeit of the marriage relation.-People v. Scarpa, 32 Cal. App. 453.

3.

Indictment-Allegation as to time.—It is unnecessary in an indictment to charge the precise date upon which an offense was committed, or to prove the offense to have been committed at the time laid except in cases where time is of the essence of the offense as is not the case here.-People v. Woodson, 29 Cal. App. 531, 156 Pac. 378. 4.

Evidence-Admissibility of.-Evidence is admissible that the defendant was the father of a child born to the woman while they were living together as husband and wife, and where it is shown that the woman was not cohabiting with her husband.-People v. Woodson, 29 Cal. App. 531, 156 Pac. 378.

5. Evidence is admissible showing the defendant's attitude and conduct when he heard his companion introduced as his purported wife.-People v. Woodson, 29 Cal. App. 531, 156 Pac. 378.

ALTY.

CHAPTER II.

ABANDONMENT AND NEGLECT OF CHILDREN.

$270. Omitting to provide child with necessaries. Penalty.

§ 270. OMITTING TO PROVIDE CHILD WITH NECESSARIES. PENA parent of either a legitimate or illegitimate minor child who wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his child, is punishable by imprisonment in the state prison, or in the county jail, not exceeding two years, or by fine not exceeding one thousand dollars, or by both. The superior court, sitting as a juvenile court, may exercise original jurisdiction over all such offenses.

History: Enacted February 14, 1872; amended by Code Commission March 16, 1901, Stats. and Amdts. 1900-1, p. 449; Act held unconstitutional, see History, § 5, Pen. C.; amendment re-enacted March 22, 1905, Stats. and Amdts. 1905, p. 758; amended March 10, 1909, Stats. and Amdts. 1909, p. 258; May 18, 1915, Stats. and Amdts. 1915, p. 572; May 5, 1917, Stats. and Amdts. 1917, p. 252. In effect July 27, 1917.

NONSUPPORT OF CHILD.

1. Constitutionality of section.

2-4. Defenses.

5. Remedy after conviction.

1. Constitutionality of section.-Punishment of the defendant under this section does not conflict with his constitutional right to be exempt from imprisonment "for debt in any civil action." So, where the record in a divorce case between defendant and his wife (wherein she had been denied a divorce and he granted one on his cross complaint) merely establishes the fact that the defendant's legal obligation as father of the children to contribute to their support has not been suspended or removed by the order removing the children from his custody, he is liable to punishment upon a showing that he has willfully omitted without lawful excuse to furnish necessary food, etc., for their use.-People v. Champion, 30 Cal. App. 463, 158 Pac. 501.

2. Defenses. Where a wife without legal justification leaves her husband and home and takes with her all the household furniture and the minor child, or if they separate by mutual consent and during the period of one year she never makes known to him that she desires or expects him to assist in the support of the child, never asks him for money, and the husband is not informed that the child is not being properly cared for, the husband is not under such circumstances guilty of a felony under this section.-People v. Meads, 28 Cal. App. 140, 151 Pac. 552.

3. Inability without fault is a lawful excuse, therefore there must be proof of ability to support the children.-People v. Forester, 29 Cal. App. 460, 155 Pac. 1021.

4. Inability due in part to an injury to the hand of a skilled dentist, and in part to business reverses without his own fault or design is a sufficient showing of lawful excuse for failure to provide for one's children. -People v. Forester, 29 Cal. App. 460, 155 Pac. 1021.

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dence does not show that the defendant had the ability to provide for his wife's support. -People v. Turner, 29 Cal. App. 193, 156 Pac. 381.

2. The conviction of a husband under section 270a of the Penal Code for refusing to provide his wife with the necessaries of life is unauthorized, where he left his wife in another state, and had no knowledge of her presence in this state until he was arrested.-People v. Smith, 31 Cal. App. 736, 161 Pac. 753.

3. In a prosecution for such an offense, a conviction can not be sustained without evidence that the wife was without other sufficient means of support at the time of the commission of the offense.-People v. Smith, 31 Cal. App. 738, 161 Pac. 753.

4. Evidence.-Mere inability to support one's wife, if there is an honest effort to obtain work, is not sufficient to constitute abandonment and nonsupport.-People Turner, 29 Cal. App. 193, 156 Pac. 381.

V.

5. The state in such a prosecution is not confined in its proof of the ability of the defendant to support his wife, to the date alleged in the information, but may introduce evidence as to the defendant's subsequent conduct and as to whether or not he secured employment and was able to support his wife, on the theory that the same would throw some light on his intention upon the date in the information.-People v. Turner, 29 Cal. App. 193, 156 Pac. 381.

6. Questions for jury-Ability to support. -The prosecution must prove that the offense was committed on or about the date alleged, still the defendant's subsequent conduct, and the question as to whether or not he secured employment and was able to support his wife, would throw some light on his intention when he left his wife, and therefore those matters were proper subjects for the consideration of the jury.People v. Turner, 29 Cal. App. 193, 156 Pac. 381.

§ 286.

1. Sodomy-Evidence, admissibility of.In a prosecution for the infamous crime against nature, evidence is admissible of the existence of similar relations between the complainant and the defendant prior to the day fixed in the information as the date of the offense.-People v. Ah Leo, 28 Cal. App. 164, 151 Pac. 748.

2. While under the general rule such proof would be properly subject to objection made, the courts have always recognized in cases involving sex relations the right of the prosecution to introduce such proof as corroborative of the main charge.-People v. Ah Leo, 28 Cal. App. 164, 151 Pac. 748.

§ 288.

CRIME AGAINST CHILDREN.

1, 2. Construction of section.

3. Evidence.

4. Proof of similar offenses. 5, 6. Instructions.

1.

Construction of section.-The provision that the offense may be committed by "any person" includes a child under the age of fourteen.-People v. Love, 29 Cal. App. 521, 157 Pac. 9.

2. Where the prosecution was under this section there is no merit in the contention that the acts described in the testimony constituted an offense under section 288a and can not be proved under this section, because section 288a was not a law at the time of the commission of the alleged offense. People v. Love, 29 Cal. App. 521, 157 Pac. 9.

3. Evidence. Where the person against whom the acts were committed was under 14 years and was asked on cross-examination to say whether he knew the acts done were wrong and the court sustained an objection as to it being immaterial, it can not be argued that the testimony was material because if the boy understood the nature of the act and it was wrong he became an accomplice and that the court committed prejudicial error unless counsel called the attention of the court to his purpose in asking the question.-People v. Love, 29 Cal. App. 521, 157 Pac. 9.

4.

-Proof of similar offenses.-Evidence of similar offenses committed between the parties, both prior and subsequent to the offense charged, may, if not too remote, be introduced. But such evidence is not admissible as independent substantive offenses upon which a conviction can be had, and evidence of them is only admissible after the prosecution has selected some particular act of a date certain, and has elected to rely on proof of such act for a conviction, and has introduced evidence tending to support the selection.-People v. Harlan, 29 Cal. App. 600, 156 Pac. 980.

5. Instructions.-An instruction advising the jury that other lewd and lascivious acts had been shown by the evidence to have been committed by the defendant, and that such evidence had been introduced for the purpose of proving the illicit relations of the defendant with the prosecutrix, is error. -People v. Harlan, 29 Cal. App. 600, 156 Pac. 980.

6. In a prosecution charging lascivious acts with a child, there is no error in modifying an instruction proposed by the defendant in striking out the following: "The defendant has offered himself as a witness and has given testimony in this case, and the jury are instructed that he is competent to testify as a witness, and in considering his testimony you should be governed by the same rules that control you in weighing the testimony of other witnesses who have given testimony before you in this trial," where the court instructed the jury as follows: "The interest of a defendant in the result

of an action does not deprive him of the benefit of his own testimony. The law makes him a competent witness in his own behalf, and his testimony is entitled to full and fair consideration by you the same as that of any other witness. He is considered innocent until the prosecution establishes the contrary by convincing proof and beyond a reasonable doubt. His evidence is entitled to full credit when you believe that he has spoken the truth, and the evidence of such witness is sufficient proof of any fact to which you believe he has truthfully testified."-People v. Murnahan, 32 Cal. App. 211, 162 Pac. 422.

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1. In general.-The above section is a brilliant example of how a statute should not be drawn. It violates the most elementary laws of statute-drafting, is sadly defective in legislative technique, and is thoroughly bad. The function and object of a law is to inform the public-not to display the "naughty" knowledge of the drafter. The elementary definition of a law is "a rule of conduct" prescribed by those in authority; and to form the basis of conduct, a law must be capable of being comprehended and understood by the persons whose conduct it is to govern. This law conveys no definite information to any one-except, possibly, to one of the select few of an expert and highly technical class. Presiding Justice Chipman, of the Third District of the District Courts of Appeal, has well said of this section that it is "to a man of common understanding (indeed, we think also to one of uncommon understanding), as cabalistic as if written in Egyptian or Mexican hieroglyphics or in Japanese or Chinese characters."-People v. Carrell, 31 Cal. App. 793, 795, 161 Pac. 995.

2. Uncertainty of the act.-The language of the statute is such that it is by no means certain what acts or offenses the legislature intended to denounce in the characterization as "the acts technically known as fellatio and cunnilingus." As Presiding Justice Chipman says, these words are not spoken of or found in any work on criminal law, and their introduction into our statutes is of so recent a date that the courts have not been called upon to deal with them "so far as we are aware, until this case arose."-People v. Carrell, 31 Cal. App. 793, 795, 161 Pac. 995. 3. -Disinclination of court to linger over offenses. The court is averse to lingering

longer over, or dipping deeper into an unsavory subject, than is absolutely necessary. The court says: "The exigencies of the case do not seem to require that we should stain the pages of our reports with the definition as given, or to enlighten the profession or the public as to what the learned trial judge found it necessary to inform the jury the legislature meant when it announced 'fellatio' as a felony."-People v. Carrell, 31 Cal. App. 793, 795, 161 Pac. 995.

4. Unnecessary legislation.-It may not be out of place here to suggest that the statute is a fine illustration of legislative supererogation-le jue vaut pas la chandelle; of a verity, tempête dans un verre d'eau; useless because the same acts (known under a more vulgar name, but one understood by everybody) have heretofore been reached and punished under the Penal Code of this state, and the criminal statutes and codes of other states.

The

5. Unconstitutional legislation. above section is plainly unconstitutional, because it violates the fundamental provision of the state constitution requiring all laws to be printed in the English language. -Cal. Const. 1879, article IV, § 24. Also Pol. C., 528.

6. The statute is not only not in the English language, but its wording and import are disingenuous and untrue, in that portion where it says the acts are "technically known as fellatio and cunnilingus," for the reason that "fellatio" and "cunnilingus" are not "technical terms" known, either to the law or in medical or chirurgical science. The terms themselves are not to be found in any dictionary or lexicon, English or French or Latin, or defined in any law or medical dictionary or lexicon, or discussed or defined in any medical treatise. The "root words" alone are to be found, from which one skilled in such work may spell out the probable acts denounced as offenses which the legislature or Lee Gebharthad in mind, and which are declared to be henceforth a felony.

7. Meaning of "fellatio” and “cunnilingus.”—Under the circumstances, and in view of the fact that the courts, when opportunity offered, have thus far refrained from an attempt at a definition of the "technical" and non-English terms used in the statuteand which "technical" and non-English words are the main and significant part of the act; and in view of the fact that no direct definitions of the terms "fellatio" and "cunnilingus" are to be found in any dictionary, lexicon, medical treatise, etc.- in view of all these facts it may be presumptuous, as well as hazardous, to attempt to define these terms, and thus to carry to the profession and the public some conception or idea as to the probable offenses the legislature had in mind and denounced as felonies; but some one must, sooner or later, hazard this undertaking.

8. The only book-in a wide researchin which I have been able to find any satis

factory hint as to the probable meaning of the "technical" terms "fellatio" and "cunnilingus" made use of in the statute, is "Steadman's Medical Dictionary" (third ed.) He nowhere defines the terms directly. Under "fellatio" he refers to "fellatorism," which he defines as "a form of sensual perversion in which the penis is introduced into the mouth of another; irrumation." "Fellatrice" is defined as "a female who takes the buccal part in fellatorism." But the person who takes the "buccal part" may be a male as well as a female person; the act by a male person would produce the same result upon the passive party as the same act by a female and would constitute equally the offense denounced as a felony. 9. In like manner, under "cunnilingus," Dr. Steadman refers to "cunnilinguist" (Latin cunnis, pudenda + lingua, tongue), which he defines as "a female pervert who makes lingual friction of the vulva of another." But here, again, the active party need not be a female; the "pervert" may be of the male type, and by the same acts accomplish the same results-and, doubtless, incur the same criminality. "Pudenda" (plural of pudendum) is defined by our author as "the external genitals, especially the female genitals, the vulva, used in the plural; the genital organs of a female, the rima pudendi and the labia major bounding it."

10. Definition.-From what has been said above it will be seen that the active party may be either a male or a female person, and the passive party may likewise be either a male or a female person. Where the passive party is a male person, the act is "fellatio"; where a female is the passive person, the act is "cunnilingus." Whether the passive person be a male or a female, the nature and purpose of the act are essentially the same, and consist in the use of the lips or the tongue, or both, of the operator, or active party, to excite the sensual passions of the passive subject, and induce emission. 11. In effect, when.-"Section 288a was a new section enacted by the legislature of 1915, and that section did not become effective until August of that year."-People v. Love, 29 Cal. App. 521, 157 Pac. 9.

12. Indictment or information—Sufficiency of. An information under this section must contain a statement of the acts constituting the offense in ordinary and concise language, and in a manner to enable a person of common understanding to know what is intended.-People v. Carrell, 31 Cal. App. 793, 161 Pac. 995.

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