Summary
In People v. Slater, 119 Cal. 620, 622 [51 P. 957], it was contended that the trial court erred in amending a certain instruction that was given to the jury.
Summary of this case from People v. MarronOpinion
Department Two
APPEAL from a judgment of the Superior Court of Del Norte County. James E. Murphy, Judge.
COUNSEL:
E. McNamara, and Walter F. Jones, for Appellant.
W. F. Fitzgerald, Attorney General, and C. N. Post, Deputy Attorney General, for Respondent.
JUDGES: Haynes, C. Searls, C., and Belcher, C., concurred. Henshaw, J., Temple, J., McFarland, J.
OPINION
HAYNES, Judge
The defendant was tried upon an information for taking away from her father a female under the age of eighteen years, without his consent, for the purposes of prostitution. He was convicted, and sentenced to imprisonment at San Quentin for two years and six months, and to pay a fine of one thousand dollars, and he now appeals from said judgment and from an order denying a new trial.
1. A venire was issued for thirty jurors, and it was served by the sheriff. The defendant challenged the panel upon the ground that the sheriff was examined as a witness on behalf of the people upon the preliminary examination of the defendant.
This challenge was properly denied. The sheriff testified that he had no bias whatever against the prisoner, and therefore the challenge was not good under subdivision 2 of section 1072 of the Penal Code, nor was there any implied bias within the provisions of section 1074 of the same code. Section 302, subdivision 4, of the Code of Civil Procedure has no application, the only grounds for such challenge in criminal cases being specified in above-named sections of the Penal Code. Section 1046 of the Penal Code refers to the "manner" in which juries in criminal cases are formed, and not to the qualifications of the officer serving the venire.
2. It is contended that the court erred in amending the fourth instruction requested by the defendant.
The instruction, as requested, is as follows: "If you find from the evidence that the house where the defendant took the girl is only a house where one woman lives, then I charge you that such [51 P. 958] a house is not a house of ill-fame." The court added, "unless it is used for the purposes of prostitution." The amendment was pertinent and proper. A house kept by one woman may be entirely respectable and the woman virtuous; but one woman may be unchaste and may keep a house of ill-fame to which others resort for purposes of prostitution.
3. Appellant contends that the court erred in giving the second, third, and fourth instructions to the jury.
The fourth instruction was a brief statement of the purpose or intention of the statute, and we see no material objection to it, though it was unnecessary; the question being whether the defendant had violated its provisions.
The second and third instructions, given at the request of the district attorney, are statements of inferences or conclusions of fact from other facts stated and assumed to exist, though not purporting to be the facts of this case. The said second instruction is as follows:
" When a girl is taken from her father's roof and conducted to a house of prostitution, the fair and reasonable inference is, that she is taken there for the purposes of prostitution." The third of said instructions is similar, and need not be quoted. These instructions should have been omitted; though taken in connection with the fifth instruction, it is apparent they were intended merely as illustrations, and not as facts proved in the case. Said fifth instruction is as follows: "Therefore, if you find that the female, Myrtle Brock, was on the sixth day of June, 1897, under the age of eighteen years, and that the defendant, Charles Slater, on that day took the said Myrtle Brock from her father, without his consent, for the purpose of prostitution, it is your duty to find him guilty as charged."
As abstract propositions the second and third instructions were correct; and, if they had not been followed by the fifth, might have been misinterpreted as intimations of the court's opinion upon questions of fact. The fifth, however, plainly showed they were mere illustrations, and clearly submitted the essential facts to the jury. We think the jury were not misled, and that the defendant was not prejudiced.
The special objection made to the fourth instruction is "that in effect the jury were told the age of the girl was not to be considered." In that instruction, in speaking of the intention of the statute, it was said it was "for the protection of females under a certain age"; but in the first and fifth instructions it was distinctly stated that it applied to "females under the age of eighteen years."
4. Appellant also contends that the evidence does not support the verdict; that "there is no evidence in the record that goes to prove that the defendant ever intended to use the girl as a prostitute."
It is scarcely necessary to notice this contention. The question involved in it is one of fact for the jury to determine from a consideration of the whole of the evidence. The character of the house to which the girl was taken by the defendant was clearly established. No ill-treatment or other reason appeared to suggest any ground for removing her from her parents' home. If the defendant intended to marry her "as soon as he got money enough," he should have left her at home with her parents. But that reason will not bear investigation. In taking her away he assumed her support, and he could as well have supported her as his wife; and if he intended to make her his wife he would not have voluntarily pursued a course which would inevitably result in destroying her reputation. Without pursuing the subject further, it is evident there was ample grounds for the conclusion that he took her away for the purpose charged.
5. The family Bible was properly admitted in evidence. The condition of the entry of the girl's birth required explanation, and the entry and explanation were properly submitted to the jury. Besides, the positive testimony of her father and mother as to her age were quite sufficient without the family record contained in the Bible.
No other questions are noticed by counsel for appellant, nor do we find any others in the record requiring notice.
The judgment and order appealed from should be affirmed.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.