146 P. 903 | Cal. Ct. App. | 1915
This is an appeal from a judgment of conviction of the crime of rape. *310
Two points are made upon the appeal. The first is that the information is fatally defective in the following respect: Instead of averring that the offense was committed upon the person of the minor "not being then and there the wife of said John Souleotes"; its words are "not being then and there with wife of said John Souleotes." There was no demurrer or other objection to the sufficiency in form of the information until after the defendant's conviction. We think the point made for the first time after conviction is without merit. The substitution of the word "with" for "the" was a mere clerical misprision by which the defendant could not have been misled, and to which he should have demurred. Not having done so, he must be held to have waived the objection.
The second point made by the appellant is that the court erred in overruling the defendant's objection to the action of the court in requiring the minor girl who was the subject of the alleged crime to be sworn, and to testify as a witness against the defendant, it appearing to the court in support of the objection, that a marriage ceremony had been performed between the defendant and the said minor after the arrest of the former but before the trial, and that by virtue thereof they were at the time she was called as a witness, husband and wife. It is conceded that the minor girl at the time of her said marriage was of the age of a little over fourteen years, and hence below the age of consent, but it is also shown that the marriage was otherwise regularly solemnized with the consent of the mother of the said minor. The question is, Was such a marriage void, voidable, or valid? If either voidable or valid it would necessarily follow that the trial court erred in compelling the witness to testify.
It seems clear that the marriage is not void, but at most voidable. At common law the marriage of minors below the age of consent was merely voidable. (2 Nelson on Divorce and Separation, secs. 721 to 725, and notes.) The well-established rule of the common law in this regard has not been expressly changed by our code. There are but three kinds of marriage which are expressly declared to be void by the terms of the Civil Code. This is not one of them, but on the contrary the fact that a minor has been married when below the age of consent is made a ground for annulment under the provisions of section
In addition to this, a reading of section
The judgment and order are reversed and the cause remanded for a new trial.