140 P. 1078 | Cal. Ct. App. | 1914
Petitioner is in the custody of the sheriff of Los Angeles County under a commitment issued pursuant to an order holding him to answer upon a charge of rape. In his behalf it is contended that the imprisonment of the petitioner is illegal in this that the person upon whom said rape is alleged to have been committed appears from all of the testimony to be the wife of said Abraham Kantrowitz; also that he has been committed to custody without reasonable *204 or probable cause in that the only testimony directly connecting him with the alleged offense is the testimony of his wife, it being claimed that she is not a competent witness.
By section
In accordance with the foregoing statutory provisions, it is necessary in any indictment or information charging a defendant with the crime of rape that he shall be accused as a principal. The argument here presented on behalf of petitioner is that, since under the section defining the crime of rape it is manifest that a husband is incapable of personally committing that crime against his own wife, therefore he cannot be guilty of that crime under any circumstances. Under similar statutory conditions, the contrary rule is established by the authorities of several other states. In People v. Chapman,
It is next contended that in this case the wife is not a competent witness against her husband, and that the petitioner is without probable cause held to answer, since it appears from the transcript of testimony at the preliminary examination that the only testimony directly connecting him with the alleged offense is the testimony of his wife. "Neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties, except with the consent of both, or in case of criminal actions or proceedings for a crime committed by one against the person or property of the other, or in cases of criminal violence upon one by the other, . . ." (Pen. Code, sec. 1322.) InPeople v. Curiale,
The writ is discharged and the petitioner remanded to custody.
James, J., and Shaw, J., concurred. *206