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TITLE IX.

OF CRIMES AGAINST THE PERSON AND AGAINST PUBLIC DECENCY

AND GOOD MORALS.

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within the proper scope of cross-examina

tion.-People v. Burrows, 27 Cal. App. 428, RAPE.

150 Pac. 382. 1. Construction of section Subdivision

7. In a prosecution of a father for rape 4.

upon his own daughter, proof that the lat2-9. Evidence-Under subdivision 1.

ter was a disobedient and willful child is 10. -Necessity for corroboration (sub

not admissible without first showing her division 1).

general conduct.—People v. Burrows, 27 Cal. 11-15. Instructions.

App. 428, 150 Pac. 382. 1. Construction of section-Subdivision 4. 8. The defendant in such a prosecution - Where the defendant claimed to be is not prejudiced by permitting a witness peace officer and told the prosecutrix that to state the time when the prosecutrix first unless she consented to have intercourse told the witness that her father had had with him he would arrest her and under intercourse with her, where the defendant such circumstances she did consent, the elicited the statement on the cross-examinamere threat to arrest her would not be a tion of the witness that the prosecutrix had threat to use such force and violence as is so charged her father.-People v. Burrows, described herein.-People v. Cavanaugh, 30 27 Cal. App. 428, 150 Pac. 382. Cal. App. 432, 158 Pac. 1053.

9. Evidence of prior acts of sexual inter2. Evidence-Under subdivision 1.-The course between the defendant and the refusal in a prosecution of rape upon a fe- complaining witness is admissible as tendmale under the age of consent to permit ing to show the adulterous disposition of the grandmother of the prosecutrix to give the defendant.—People v. Converse, 28 Cal. her opinion as to whether the sexual organs App. 687, 153 Pac. 734. of the prosecutrix had ever been entered by 10. -Necessity for corroboration (subdia human being, is not prejudicial to the de- vision 1).-In the prosecution of the crime fendant, in view of the verdict of conviction of rape upon a female under the age of conof an attempt to commit rape.-People v. sent, it is not required that her testimony Price, 26 Cal. App. 544, 147 Pac. 591.

should be supported by corroboration in 3. Where the prosecutrix admits on order to sustain a conviction; she is not an cross-examination that she had told another accomplice in the commission of the crime. girl that she had had improper relations --People v. Vernon, 29 Cal. App. 424, 155 with only one person, not the defendant, no Pac. 1021. prejudicial error is committed in sustaining 11. Instructions. An instruction "that objections to a series of questions designed evidence of previous acts of sexual interto compel admissions that on certain speci- course between the defendant and the prosefied occasions the witness had been ques- cutrix and of improper familiarities on the tioned about her illicit relations with de- part of the defendant toward and with the fendant and that on those occasions she prosecutrix, both before and after the time had made statements inconsistent with her charged in the information, is received and testimony on direct examination as to the admitted in evidence to prove the adulterous time when she first had any illicit relations disposition of the defendant herein, and as with him, where it appears that the witness having a tendency to render it more probwas later permitted to answer other ques- able that the

act

of sexual intercourse tions whereby virtually she admitted that charged in the information was committed she had made the statements referred to in on or about the thirteenth day of Septemthe excluded questions.--People v. Kilfoil, ber, 1913, and for no other purpose," is not 27 Cal. App. 29, 148 Pac. 812.

obnoxious to the objection as charging upon 4. The admission in evidence on the re- questions of fact.—People v. Price, 26 Cal. direct examination of the prosecutrix, over App. 544, 147 Pac. 591. defendant's objection that no foundation 12. In a prosecution for rape it is not had been laid therefor, of certain capsules error to refuse an instruction on the weight or pellets identified by the witness as hav- of a particular part of the evidence, or ing been given her by the defendant for which singles out for comment the testithe purpose of preventing pregnancy, is

mony of a particular witness. Neither is proper --People v. Kilfoil, 27 Cal. App. 29, it error to refuse an argumentative instruc148 Pac. 812.

tion.-People v. Converse, 28 Cal. App. 687, 5. Where the prosecutrix is under the 153 Pac. 734. age of consent, her relations with other 13. In a prosecution for the crime of rape men as tending to show want of chastity are committed upon a married woman, it is reimmaterial.-People v. Kilfoil, 27 Cal. App. versible error to refuse to instruct the jury, 29, 148 Pac. 812.

at the request of the defendant, advising 6. In a prosecution for rape, objections them that if they found that the prosecuto questions asked of the prosecutrix on trix's consent to the intercourse was obcross-examination as to her wayward con- tained because of her belief that the duct are properly sustained as not being defendant was an officer and that he was 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.

no

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 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.

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 ap. plication 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.

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.

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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.

CHAPTER II.

ABANDONMENT AND NEGLECT OF CHILDREN.

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

8 270. OMITTING TO PROVIDE CHILD WITH NECESSARIES. PEN. ALTY. A 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.

V.

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.

dence does not show that the defendant had 1. Constitutionality of section.

the ability to provide for his wife's support. 2-4. Defenses.

-People v. Turner, 29 Cal. App. 193, 156 Pac. 5. Remedy after conviction.

381.

2. The conviction of a husband under 1. Constitutionality of section.-Punish

section 270a of the Penal Code for refusing ment of the defendant under this section

to provide his wife with the necessaries of does not conflict with his constitutional

life is unauthorized, where he left his wife right to be exempt from imprisonment "for

in another state, and had no knowledge of debt in any civil action." So, where the rec

her presence in this state until he was arord in a divorce case between defendant

rested.-People v. Smith, 31 Cal. App. 736, and his wife (wherein she had been denied

161 Pac. 753. a divorce and he granted one on his cross

3. complaint) merely establishes the fact that

In a prosecution for such an offense, a the defendant's legal obligation as father

conviction can not be sustained without eviof the children to contribute to their sup

dence that the wife was without other port has not been suspended or removed by

sufficient means of support at the time of the order removing the children from his

the commission of the offense. -People v. custody, he is liable to punishment upon a

Smith, 31 Cal. App. 738, 161 Pac. 753. showing that he has willfully omitted with

Evidence-Mere inability to support out lawful excuse to furnish necessary food, one's wife, if there is an honest effort to etc., for their use.—People v. Champion, 30 obtain work, is not sufficient to constitute Cal. App. 463, 158 Pac. 501.

abandonment and nonsupport.-People Defenses.-Where a wife without legal Turner, 29 Cal. App. 193, 156 Pac. 381. justification leaves her husband and home 5. The state in such a prosecution is not and takes with her all the household fur- confined in its proof of the ability of the niture and the minor child, or if they sep- defendant to support his wife, to the date arate by mutual consent and during the

alleged in the information, but may introperiod of one year she never makes known

duce evidence as to the defendant's subseto him that she desires or expects him to quent conduct and as to whether or not he assist in the support of the child, never secured employment and was able to supasks him for money, and the husband is not port his wife, on the theory that the same informed that the child is not being properly would throw some light on his intention cared for, the husband is not under such

upon the date in the information.-People v. circumstances guilty of a felony under this

Turner, 29 Cal. App. 193, 156 Pac. 381. section.—People v. Meads, 28 Cal. App. 140,

Questions for jury-Ability to support. 151 Pac. 552.

-The prosecution must prove that the of3. Inability without fault is a lawful ex

fense was committed on or about the date cuse, therefore there must be proof of ability

alleged, still the defendant's subsequent to support the children.-People v. Forester,

conduct, and the question as to whether or 29 Cal. App. 460, 155 Pac. 1021.

not he secured employment and was able to 4. Inability due in part to an injury to the hand of a skilled dentist, and in part to

support his wife, would throw some light on

his intention when he left his wife, and business reverses without his own fault or

therefore those matters were proper subdesign is a sufficient showing of lawful ex

jects for the consideration of the jury.cuse for failure to provide for one's children.

People v. Turner, 29 Cal. App. 193, 156 Pac. -People v. Forester, 29 Cal. App. 460, 155

381. Pac. 1021. 5. Remedy after conviction.

The perior court has jurisdiction of a prosecu

§ 286. tion under this section, and where the de

1. Sodomy Evidence, admissibility of. fendant was served and appeared he had an

In a prosecution for the infamous crime opportunity to present his objections, there

against nature, evidence is admissible of the fore his remedy against a judgment of con

existence of similar relations between the viction is by appeal and not by habeas corpus.-In re Meads, 26 Cal. App. 631, 147 Pac.

complainant and the defendant prior to the 985.

day fixed in the information as the date of

the offense.---People v. Ah Leo, 28 Cal. App. $ 270a.

164, 151 Pac. 748.

While under the general rule such

2. NONSUPPORT OF WIFE.

proof would be properly subject to objection 1-3. Defenses.

made, the courts have always recognized in 4, 5. Evidence.

cases involving sex relations the right of 6. Questions for jury-Ability to support.

the prosecution to introduce such proof as 1. Defenses.—There can be no guilt or corroborative of the main charge. People v. conviction under this section where the evi- Ah Leo, 28 Cal. App. 164, 151 Pac. 748.

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8 288.

of an action does not deprive him of the

benefit of his own testimony. The law makes CRIME AGAINST CHILDREN.

him a competent witness in his own behalf, 1, 2. Construction of section.

and his testimony is entitled to full and 3. Evidence.

fair consideration by you the same as that 4. —Proof of similar offenses.

of any other witness. He is considered in5, 6. Instructions.

nocent until the prosecution establishes the 1. Construction of section.—The provi

contrary by convincing proof and beyond a sion that the offense may be committed by

reasonable doubt. His evidence is entitled "any person" includes a child under the age

to full credit when you believe that he has of fourteen.-People v. Love, 29 Cal. App. spoken the truth, and the evidence of such 521, 157 Pac. 9.

witness is sufficient proof of any fact to 2. Where the prosecution was under this

which you believe he has truthfully testisection there is no merit in the contention

fied."—People v. Murnahan, 32 Cal. App. 211, that the acts described in the testimony

162 Pac, 422. constituted an offense under section 288a and can not be proved under this section,

$ 288a. because section 288a was not a law at the

FELLATIO AND CUNNILINGUS. time of the commission of the alleged of

1. In general. fense.--People v. Love, 29 Cal. App. 521, 157

2. Uncertainty of the act. Pac. 9.

3. --Disinclination of court to linger 3. Evidence.—Where the person against

over offenses. whom the acts were committed was under 4. Unnecessary legislation. 14 years and was asked on cross-examina

5, 6. Unconstitutional legislation. tion to say whether he knew the acts done

7-9. Meaning of "fellatio" and "cunnilinwere wrong and the court sustained an ob

gus." jection as to it being immaterial, it can not

10. Definition. be argued that the testimony was material 11. In effect, when. because if the boy understood the nature of 12, 13. Indictment or information - Sufficithe act and it was wrong he became an

ency of. accomplice and that the court committed

1. prejudicial error unless counsel called the

In general.—The above section is a attention of the court to his purpose in ask

brilliant example of how a statute should ing the question.-People v. Love, 29 Cal.

not be drawn. It violates the most elemenApp. 521, 157 Pac. 9.

tary laws of statute-drafting, is sadly de-Proof of similar offenses.-Evidence

fective in legislative technique, and is thorof similar offenses committed between the

oughly bad. The function and object of a parties, both prior and subsequent to the of.

law is to inform the public-not to display fense charged, may, if not too remote, be

the "naughty" knowledge of the drafter. introduced. But such evidence is not ad

The elementary definition of a law is "a missible as independent substantive offenses

rule of conduct" prescribed by those in auupon which a conviction can be had, and

thority; and to form the basis of conduct, a evidence of them is only admissible after

law must be capable of being comprehended the prosecution has selected some particular

and understood by the persons whose conact of a date certain, and has elected to

duct it is to govern. This law conveys no rely on proof of such act for a conviction,

definite information to any one-except, and has introduced evidence tending to sup

possibly, to one of the select few of an export the selection.-People v. Harlan, 29 Cal.

pert and highly technical class. Presiding App. 600, 156 Pac. 980.

Justice Chipman, of the Third District of 5. Instructions.-An instruction advising

the District Courts of Appeal, has well said the jury that other lewd and lascivious acts

of this section that it is "to a man of comhad been shown by the evidence to have

mon understanding (indeed, we think also to been committed by the defendant, and that

one of uncommon understanding), as cabalsuch evidence had been introduced for the

istic as if written in Egyptian or Mexican purpose of proving the illicit relations of

hieroglyphics or in Japanese or Chinese the defendant with the prosecutrix, is error.

characters."-People v. Carrell, 31 Cal. App. --People v. Harlan, 29 Cal. App. 600, 156 Pac.

793, 795, 161 Pac. 995. 980.

2. Uncertainty of the act.—The language 6. In a prosecution charging lascivious

of the statute is such that it is by no means acts with a child, there is no error in modi- certain what acts or offenses the legislature fying an instruction proposed by the de- intended to denounce in the characterization fendant in striking out the following: "The as "the acts technically known as fellatio defendant has offered himself as a witness

and cunnilingus." As Presiding Justice Chipand has given testimony in this case, and man says, these words are not spoken of or the jury are instructed that he is competent found in any work on criminal law, and to testify as a witness, and in considering their introduction into our statutes is of so his testimony you should be governed by the recent a date that the courts have not been same rules that control you in weighing the

called upon to deal with them "so far as we testimony of other witnesses who have given are aware, until this case arose."-People v. testimony before you in this trial," where Carrell, 31 Cal. App. 793, 795, 161 Pac. 995. the court instructed the jury as follows: 3. -Disinclination of court to linger over "The interest of a defendant in the result offenses.-The court is averse to lingering

an

as

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 nounced '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.

5. Unconstitutional legislation. The 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 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 Gebhart had 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.

An information charging the commission of the acts technically known as fellatio upon the person of a human being by force and violence and against the will of such person does not state a public offense, in the absence of any definition of such term, or of any statement of the particular acts constituting the alleged offense.--People v. Carrell, 31 Cal. App. 793, 161 Pac. 995.

13.

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