California Charles Howard Fairall.

Criminal law and procedure of California including the penal code of California online

. (page 21 of 77)
Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 21 of 77)
Font size
QR-code for this ebook


does not testify to acts on such date, which amount to
rape,*^ but evidence of previous cruelty to prosecutrix is
not admissible to prove a putting in fear.*® The testimony
of neighbors as to the beating of the prosecutrix by the
defendant is admissible to corroborate her testimony as to
cruel treatment and fear.*^ Where the prosecution was for
crime committed on a girl under the age of consent, evidence
of other acts of intercourse with the prosecuting witness
is admissible.*^ When in such cases a single act is charged
upon a particular date, and a series of acts of sexual inter-
cpurse proved, the prosecution must select the particular
act relied upon,*^^ and notify the defendant at the com-,
mencement of the trial as to the particular act upon whichi
the prosecution intends to rely. Unless this is done the
first evidence which tends in any degree to prove an offenst

33 People V. Kuches, 120 Cal. 566.

34 People V. Mayes. 66 Cal. 597.

38 People V. Lambert, 120 Cal. 170; People v. Hamilton,

46 Cal. 543.
»« People V. Barney. 114 Cal. 554.
3T People V. Baldwin, 117 Cal. 244.
38 People V. Bene, 130 Cal. 159.
»» People V. Manahan, 32 Cal. 68.

40 People V. Tyler, 36 C^l. 522.

41 People V. Lenon. 79 Cal. 625.

42 People V. Rangod, 112 Cal. 669.
42a People V. Castro. 133 Cal. 11.



Digitized by VjOOQIC



264 CRIMINAL LAW AND PROCEDURB.

will be deemed a selection and unless proved the defendant
must be acquitted.*^** When a date is selected and notice
thereof given evidence both before and after may be intro-
duced as tending: to sustain it.*^*^.

UNCHASTE CHARACTER.

Previous lewdness of the prosecutrix is admissible, though
proof of particular acts are preferable to geneial reputation.
They are not admissible, however, to impeach her as a
witness but to show consent by destroying the presimiption
of greatest reluctance ^nd resistance.'** But while the
reputation for chastity and particular acts of unchastity are
generally admissible for the purpose of showing the
probability of consent, they are not admissible in pros-
ecutions where the female is under the age of consent.**
Intercourse with others may also be shown for the same
purpose,*" but not indecencies of speech not accompanied
with lewd behavior.*** The prosecutrix cannot testify as
to her previous chastity on direct examination. It is
inferred from absence of evidence to the contrary, and can
only be admitted in rebuttal,*' but such testimony is not
admissible to prove innocence of specific acts of incon-
tinence.*®

INCAPACITY TO COMMIT.

If the defendant is incapable of consummating the sex-
ual act it is a defense,*® and the testimony of a physician
may be admitted to show that it would have been phy-
sically impossible to commit the act in the manner tes-

42b People V. Williams, 133 Cal. 165.

42C People v. Castro, 133 Cal. 11.

48 People V. Benson, 6 Cal. 221; People v. Harlan, 13^ Cal.
16.

44 People V. Johnson, 106 Cal. 289; People v. Hartman,
103 Cal. 242; People v. Bene, 130 Cal. 159; People v. Har-
lan, 133 Cal. 16.

46 People V. Shea, 125 Cal. 151; People v. Benson, 6 Cal.
221; People v. Johnson, 106 Cal. 289.

4fl People V. Kuches, 120 Cal. 566.

47 People V. O'Brien, 130 Cal. 1; People v. Tyler, 36 Cal.
522; People v. Kuches, 120 Cal. 571.

48 People V. O'Brien, 130 Cal. 1.
40 People V. Wessel, 98 Cal. 352.



Digitized by VjOOQIC



RAPE. 255

tified to by the prosecutrix,**** but not expert testimony as
to possibility of forcible rape.'^

ASSAULT TO RAPE.

In a charge of assault to rape a female under age of
consent, it is not necessary to show that the defendant
intended to gratify his passion at all events, or to use force ;
but it is enough that he intended to have intercourse and
took steps towards that end.^ But where the female is
above such age, the crime is not shown unless the evidence
establishes a settled purpose on the part of the defendant
to use all necessary force. ^ The uncorroborated testimony
of the prosecutrix is sufficient to establish the charge.*
And the abandonment of the intent, before the consumma-
tion of the act, by reason of the approach of others or by
reason of the pains of a stricken conscience, is no defense.*
The intent is a question of fact, and while a specific intent
to have intercourse is necessary, indecent advances or the
prostitution of the mind of a female child under the age
of consent show such intent.** Intent is to be judged by
the conduct of the defendant, not by that of the pros-
ecutrix.® A simple assault is not an element of the oflFense,
when whatever took place was with the willingness of the
female.^ An attempt to commit rape is distinguished from
an assault with intent to commit.*

INDICTMENT.

It need not be alleged that the force .and violence was

50 People V. Baldwin, 117 Cal. 244.

51 People V. Bene, 130 Cal. 59.

1 People V. Johnson, 131 Cal. 511.

2 People V. Fleming, 94 Cal. 308; People v. Stewart, 97
Cal. 240; People v. Kuches, 120 Cal. 568; People v.
Gardner, 98 Cal. 130.

» People V. Fleming, 94 Cal. 308; People v. Gardner, 98

Cal. 127; People v. Stewart, 90 Cal. 212; People v.

Mesa, 93 Cal. 585; People v. Mayes, 66 Cal. 597.
* People V. Stewart, 97 Cal. 238; People v. Johnson, 131

Cal. 511.
5 People V. Johnson, 131 Cal. 511; People v. Stewart, 97

Cal. 238.
« People V. Roach, 129^ Cal. 33.
7 People V. Gomez, 118 Cal. 326.
« People V. Gardner, 98 Cal. 127.



Digitized by VjOOQIC



266 cRiMnrAL law aus pbocedubb.

a^inst the resistance of the female.^ Neither is it nec-
essary to allege the age of the perpetrator or any facts
showing his capacity to commit the offense. These are
matters of defense, unless the indictment shows on its
face the contrary.*** It is not essential to allege the female
was not the wife of the accused." Two offenses are not
charged where a rape and an assault to commit are both
charged.** An assault to commit the offense is not stated
by alleging that the accused feloniously assaulted a female
by throwing her on her back and attempting to have sexual
intercourse with her with intent to outrage her.*'

PENALTY.

Rape, imprisonment in state prison not less than five
years ; assault witli' intent to commit rape, imprisonment
in state prison from'ohe to fourteen years.

FORM — ASSAULT TO COMMIT.

Unlawfully, feloniously and with force and violence did
assault, with intent to commit rape, one C D, a female
child under sixteen years of age, and without her consent
and against her will.**

FORM — UNDER AGE OF CONSENT.

Wilfully, unlawfully and feloniously did have sexual
intercourse with one C D, the said C D being then and
there a female child under the age of sixteen years, and
not being then and there the wife of the said A B.

FORM — BY FORCE.

Wilfully, unlawfully and feloniously upon one C D, a
female not the wife of the said A B, did make an assault,
and the said C D forcibly and against her will and consent,
feloniously did ravish and carnally know, the said C D
then and there resisting all the time, but her resistance
being overcome by the force and violence of said A B.

9 People V. Brown, 47 CaL 447.

10 People V. Ah Yek, 29 Cal. 576; People v. Wessel, 98
Gal. 853.

11 People V. Eetrado, 53 Cal. 600.

12 People V. Tyler, 35 Cal. 558.

13 People V. G'Neil, 48 Cal. 257.
1* People V. Mesa, 93 Cal. .'83.



Digitized by VjOOQIC



CHAPTER XLIL



RECEIVING SXOLEN GOODS.

[Penal Code, sees. 496-497.]



DEFINED.

At common law, a person who iorjfns own gain or to
prevent the owner from again possessCgJrig property buys
and receives any personal property, knowSK/rtie same to
have been stolen, would be an accessory afteMrajjfact to
the larceny. But under our statute he is punisnnlIlH4n
such cases for receiving stolen goods.* It is a differew^.
offense from either larceny or of an accessory after the ^
fact.* The crime also covers the receiving of goods pro-
cured by embezzlement* and by robbery.*

WHAT ACTS SUFFICIENT.

The defendant must have received the goods for his own
gain, or to prevent the owner from again possessing hi3
property, knowing them to have been stolen.* The receiver
is liable although he did not receive all of the property
stolen ; and the grade of the offense does not depend on the
value of the property received." Where a foreman of a
warehouse without authority to sell, sells to the defendant,
who receives the goods knowing such fact, he is guilty of
receiving stolen goods.'' The guilty knowledge may be

1 People V. Stakem, 40 Cal. 599.

2 People V. Ward, 105 Cal. 652; People v. Hawkins, 34
Cal. 181.

8 People V. Perinl, 94 Cal. 573.

* People V. Shepardson, 48 Cal. 189.

5 People V. Avila. 43 Cal. 196; People v. Ribolsi, 89 Cal.

499; Penal Code 496.
« People V. Pitzpatrick, 80 Cal. 538.
7 People V. Perini, 94 Cal. 573.



CRIMES - 17



Digitized by VjOOQIC



258 CRIMINAL LAW AND PROCEDURE.

inferred from the inadequate price paid, or the irresponsi-
bility of the vendor and other such like circumstances.*
T*he burden of proving the intent is on the prosecution
throughout." But when the property consists of jewelr}%
silver or plated ware, or articles of personal ornament, if
purchased or received from a person under the age of
eighteen, unless sold by such minor at a fixed place of busi-
ness, carried on by said minor, or his employer, it is pre-
sumptive evicfence that the property was stolen.*® Where,
how^ever, the defendant had no connection with the stealing
of the property and did not know that it had been stolen
at the time of his getting possession, of the same, he is not
guilty. The receiving in good faith in such a case is imma-
terial, and the defendant is not bound to establish it.** If
the defendant had no knowledge of the crime prior to its
commission, but afterwards received the stolen goods he
cannot be convicted of larceny." Where the evidence
shows only the receiving of stolen goods, the question of
whether the defendant knew the goods were stolen is to be
determined from all the facts of the case. He is required
to use the circumspection usual by persons taking goods
by purchase; and this is imminently the case with dealers
buying at greatly depreciated rates. That which a man
in defendant's position ought to have suspected, he must
be regarded as having suspected, as far as was necessary to
put him on guard and on his inquiries. The proof in any
case is to be inferential, and among the inferences promi-
nent are inadaquacy of price and irresponsibility of the
vendor or depositor.** It is necessary that the goods the
defendant is charged with receiving shall be shown to have
been stolen goods ; but the stealing is sufficiently shown by

8 People V. Clausen, 120 Cal. 381.

» People y. Ribolsi, 89 Cal. 492; People v. Perini, 94 CaL
575.

10 Penal Code 496.

11 People V. Ward, 105 Cal. 652.

12 People V. Maxwell, 24 Cal. 14; People v. Ward, 105 Cal.
. 652.

18 People V. Clausen, 120 Cal. 381; People v. Hertz, 105
Cal. 663.



Digitized by VjOOQIC



RECEIVING STOLEN GOODS. 259

the testimony of the owner and the thief. Thus, the thief
may become an accomplice in receiving the stolen goods.**

EVIDENCE.

The failure to enter the purchase of the goods in a book,
as required by law, is a part of the res gestae, and admis-
sible.*'^ The proof of the stealing is sufficiently shown by the
testimony of the owner and of the thief.** The burden of
the proof is on the prosecution throughout.*^ Guilty
knowledge is inferred by inadaquacy of price or irresponsi-
bility of the vendor.*® It need not be shown that the
defendant received all of the stolen property.**^

VENUE.

When larceny is in one county and the stolen goods are
received in another county, the receiver of the stolen goods
cannot be convicted of larceny where the crime was com-
mitted.2^

PENALTY.

The oifense is a felony or misdemeanor according to the
nature of the judgment imposed by the court; and the
defendant may be punished by imprisonment in the state
prison not exceeding five years, or in the county jail not
exceeding six months, or by both.

INDICTMENT.

The indictment need not state the name of the thief,"
nor need it allege the value of the property.*^ It is suffi-
cient if it charges that the defendant received the stolen
property for his own gain, knowing it to have been stolen.^'

" People V. Clausen, 120 Cal. 381.

15 People V. Clausen, 120 Cal. 383.

i« People V. Clausen, 120 Cal. 383.

IT People V. Ribolsi, 89 Cal. 49; People v. Perini, 94 Cal.

475.
19 People V. Clausen, 120 Cal. 381. '

19 People V. Fitzpatrick, 80 Cal. 538.

20 People V. Stakem, 40 Cal. 599.

21 People V. Ribolsi. 89 Cal. 499; People v. Avila< 43 Cal.
196; People v. Clausen, 120 Cal. 383.

22 People V. Rice, 73 Cal. 220.

28 People V. Avlla, 43 Cal. 196; People v. Ribolsi, 89 Cal.
499.



Digitized by VjOOQIC



260 CRimNAL LAW AKD PROCEDURE.

FORM — RECEIVING STOLEN PROPERTY.

Wilfully, unlawfully and feloniously, and for his own
gain, did receive [or buy] one watch, of the personal prop-
erty of C D, which had been previously stolen, and the said
A B then and there well knowing the same to have been
feloniously stolen.**

REGISTRATION, FRAUDULENT, seo ELECTION LAWS.
REMOVAL FROM OFFICE, seo MISDEMEANOR IN OFFICE.

24 People v. Avila, 43 Cal. 196; People v. Ribolsi, 89 CaL
499.



Digitized by VjOOQIC



CHAPTER XUII.



RESISTANCE OF PUBLIC OFFICERS

[Penal Code, sec. 148.]



DEFINED.

It is the wilful! resisting, delaying or obstructing
any public ofHcer in the discharge or attempt to discharge
any duty of his office.^ Resisting arrest does not always
constitute the use of physical force; a person may resist
arrest by fleeing from an officer attempting to arrest him.*
And this, though the oflicei' did not inform the person to be
arrested, of his intention to make the arrest, where it is
clear that he knew the officer had called for that purpose.*
But one who is not a peace officer has no right to arrest
another for a misdemeanor not committed in his presence.
And the person whom he attempts to arrest has a right to
resist, and is justified in an assault made in an attempt
to free himself from such illegal restraint.*

INDICTMENT.

The manner and means of the obstruction, resistance or
delay need not be alleged, as they are matters of evidence.
And when the information is for resisting an officer in th^
service of a warrant of arr^est, it is not necessary to set out
the facts which constitute the offense for which the warrant
was issued.' But it must allege that the offense was com-

1 Penal Code 148.

t People V. Brooks, 131 Cal. 315; People v. KilTington*

104 Cal. 86.
t People V. Hawkins, 127 Cal. 872.
4 People V. Denby, 108 Cal. 54.
8 People V. Hunt, 120 Cal. 281.



Digitized by VjOOQIC



262 CRIMINAL LAW AND PROCBDUBB.

mitted in the cc»unty, or show that the justice had jurisdic-
tion to issue the warrant.*



PENALTY.

When no other punishment is prescribed, a fine not
exceeding five thousand dollars and imprisonment in the
county jail not exceeding five years.

FORM.

Wilfully, imlawfully and feloniously did resist, delay and
obstruct one C D in the discharge and attempt to discharge
his duties as a public officer, the said C D being then and
there a duly elected, qualified and acting sheriff [or other

officer, naming him] of the county of , and being

then and there engaged as such officer in arresting one
E F, who was then and there wilfully and unlawfully dis^
turbing the peace, [or other duty, stating it.]^

RIOT, see DISTURBANCES OF THE PEACE.

« People V. Craig, 59 CaL 370.
f People V. Hunt, 120 Cal. 281.



Digitized by VjOOQIC



.c



CHAPTER XLIV.



ROBBERY.

[Penal Code, sees. 211-213.1



DEFINED.

The crime is the felonious taking of personal property
in the possession of another from his person or immediate
presence and against his will, accynplished by means of
force or fear. The fear may be efthey, pf unlawful injury
to the person or property of the one robbeti, or any relative
or member of his family ; or of art immfediate art4 unlawful
injury to the person or property of any one in the cbunteny
of the person robbed at the time of the robbery.* Kobh-
bery is distinguished from larceny from the person, by the
presence or absence of force or fear in the taking.* It has^
all the essential ingredients of larceny and more.* And a
defendant under an indictment for robbery may be con-
victed of larceny.* There . are no degrees in robbery.*
Robbery under the code is practically the same as at com-
mon law.* But it may be accomplished by means of kid-
napping, threats of torture and death.^

OWNERSHIP BY ANOTHER.

Ownership of property must be proved in some person

1 Penal Code 211-213.

> People V. Church, 116 Cal. 300.

» People V. Jones. 53 Cal. 58; People v. Crowley, 100

Cal. 480; People v. Ammerman, 118 Cal. 25;* People y.

Church. 116 Cal. 300.

4 People V. Nelson. 56 Cal. 77; People v. Jones, 53 CaL
58; People v. Chuey Ying Git, 100 CaL 439; People

' V. Crowley, 100 Cal. 480.

5 People V. Gilbert, 60 Cal. 108.
« People V. Shuler, 28 Cal. 490.

7 People V. Winthrop, 118 Cal. 85.



Digitized by VjOOQIC



964 GRIMIMAL LAW AND PBOCEDURK.

Other than the accused.* And the owner of the property is
not guilty of robbery in taking it from the person in pos-
session." But it may be accomplished by taking property
from another, although the person from whom it was taken
was not the owner.** Where the proof shows part of the
money belonged to other persons than alleged in the indict-
ment, it is no variance.** And a variance as to ownership
does not vitiate the information for robbery.**

VALUE OF PROPERTY.

The property must, as in larceny, be alleged to have some
value, but it is not necessary, as in larceny, to allege the
value of the property for the purpose of determining the
punishment, as the punishment does not depend upon the
value of the property taken.**

TAKING FROM THE PERSON.

There must be not only a taking of the property, but it
mu3t be a taking from the person of another.** And
where taken from the person it sufficiently shows it was
taken from the possession also.**

AGAINST THE OWNER'S WILL.

Where the taking was with force, the law presumes that
it was taken against the will of the party from whom it
was taken.**

INJURY TO PERSONS IN COMPANY.

As was seen by the definition, where the fear of the injury
is to any person in the immediate company of the person
robbed, it is robbery ; so the boarding of a train with intent

« People V. Shuler, 28 Cal. 494; People v. Ammennan,

118 Cal. 27.
» People V. Vice, 21 Cal. 344. x

10 People V. Anderson, 80 Cal. 205; People v. Ammennan,
118 Cal. 25.

11 People V. Clark, 106 Cal. 32.

12 People V. Anderson, 80 Cal. 205; People v. Rlbolsl. 89
Cal. 497.

18 People V. Chuey Ying Git, 100 Cal. 437.

1* People V. Shuler, 28 Cal. 490; People v. AmmeriLan,

118 Cal. 26.
" People V. Walbridge, 123 Cal. 273.
i« People V. Riley, 75 Cal. 98.



Digitized by VjOOQIC



ROBBERY. 265

to take control thereof from the employees, by force and
intimidation, and commit larceny or robbery thereon, is a
robbery of the passenger train.^^ The pointing of a pistol
at several persons riding with the person robbed and rob-
bing them is one act of robbery."

THE INTENT.

The intent is a question for the jury." It must appear
in robbery, as in larceny, that the goods were taken animo
furandi, and with intent to deprive the person of them per-
manently.^^

EVIDENCE.

The evidence must show the locus delicti; and, where
there is no evidence of the county in which the crime
was committed, the conviction cannot be sustained.*^ It
is proper, where evidence shows the robbery was by means
of both force and fear to the. person who is robbed,
for the court to explain the fear by means of which the
taking is constituted robbery.^^ The pointing of a pistol at
several persons riding with the person robbed is a part of
the res gestae and admissible.^' The witness may testify
to his understanding of the actions of the accused, even
though he could not understand,, his language." The
defendant on trial may be compelled to stand up for com-
parison.^* The possession of the istolen property may be
taken into consideration in determining the guilt of the
accused;^** But the person who only receives the fruits
of the robbery is not guilty of robbery.*^ And the pos-
session of burglar's tools is not admissible to prove robbery

IT People V. Lovren, 119 Cal. 88.
" People V. Nelson, 85 Cal. 421.
i» People V. Woody, 48 Cal. 81.
ao People V. Keefer, 65 Cal. 232.

21 People V. Tarpey, 59 Cal. 371.

22 People V. O'Brien, 88 Cal. 483.
28 People V. Nelson. 85 Cal. 421.
2* People V. Clark, 106 Cal. 32.

25 People V. Ollveria. 127 Cal. 376; People v. Goldenson,
' 76 Cal. 347.

*« People V. Etting, 99 Cal. 577; People v. Abbott, 101

Cal. 647.
27 People v. Shepardson, 48 Cal. 189.



Digitized by VjOOQIC



266 CRIMINAL LAW A1I0, PBOCEDURS.

merely because a prior conviction of burglary is. included
in the indictment.^' The possession of the stolen property
recently after the robbery is a circumstance showings
guilt.** Where all the evidence shows that d<jfendant, if
guilty of any crime, is guilty of robbery and not larceny^
it is proper for the court to so instruct the jury.'^

INDICTMENT.

The ownership of the property must be pleaded.'* It
must be alleged that the property taken was owned
by another person.'* But the charge that the property was
taken from one person and another person was the owner
is sufficient.'' Money may be described as lawful money
of the United States.'* The indictment must state that the
property was taken from the person of another; it is not
sufficient to say it was taken from another person.'* And
where it is alleged the robbery was accomplished by means
of force and fear, it is unnecessary to allege the property
was taken without the consent of the person robbed.**^
And the allegation that it was taken from the person suffi-
ciently shows that it was in his possession.'^

PENALTY.

Imprisonment in state prison not less than one year.**

FORM — ROBBERY.

In and upon one C D did make an assault, and thereby

2S People V. Sansome, 84 Cal. 449.

2» People V. Clough, 59 Cal. 438; People v. Velarde. 59
Cal. 464.

30 People V. O'Brien, 88 Cal. 483.

31 People V. Ammerman, 118 Cal. 23.

82 People V. Vice, 21 Cal. 346; People v. Ammerman, 118
Cal. 25; People v. Shuler, 28 Cal. 494; People v. Hughes,
41 Cal. 237.

33 People V. Shuler, 28 Cal. 490; People v. Ammerman,
118 Cal. 25.

34 People V. RUey, 75 Cal. 98.
36 People V. Beck, 21 Cal. 386.

36 People V. Riley, 75 Cal. 98.

37 People V. Walbridge, 123 Cal. 273; People v. Shuler, 28
Cal. 490.

88 People V. Winthrop, 118 Cal. 85; People r;. Clary, 71
Cal. 59; Penal Code 213.



Digitized by VjOOQIC



ROBBERY. 267

did place him, the said C D, in bodily fear and danger of
his life, and did then and there feloniously and unlawfully

take from the said C D, dollars in gold and silver

coin of the United States of America; all of which money
was then and there in the possession of said C D, and was
then and there the property, goods and chattels of said C D.
That the said A B did then and there take from the person
and against the will of said C D, the money aforesaid,
unlawfully, wilfully, violently and forcibly, and did then
and there, wilfully, feloniously, unlawfully and forcibly
steal, take and carry away all- of the said money.^*

ANOTHER FORM.

Wilfully, unlawfully and feloniously did take from the
person and possession of one C D, one watch of the per-
sonal property of said C D, of the value of twenty-five
dollars, lawful money of the United States, which said
taking of said watch aforesaid, was then and there without
the consent and' against the will of said C D, and was then
and there accomplished by means of force used upon and
against the said C D, by said A B, and by then and there
putting the said C D in fear.

8» People V. Nelson, 56 Cal. 77.



Digitized by VjOOQIC



CHAPTER XLV.



SBDUCXION.

[Penal Code, sees. 266-268.]



DEFINED.



It is the having sexual intercourse with an unmar-
ried female of previous chaste character under a
promise of marriage/ or the inveigKng or enticing of an
unmarried female of previous chaste character under
eighteen years of age, into a house of ill fame, or elsewhere
for purpos*es of prostitution or procuring her to have sex-
ual intercourse by means of fraud.* It is necessary to show



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 21 of 77)