defined by this section is committed by one who "took away the infant from the actual charge or possession of her parent, guardian, or other person entitled to the chaige of her person; and that it is not committed by one forming an immoral connection with a female who has already abandoned her home or fled from guardianship. However base and infamous the conduct of defendant, he can not be punished, under this section, unless he has committed the crime therein prescribed."-People v. Cook, 61 Cal. 478, 480.

As to abandoned female, a wanderer, see par. 1, this note.

10. Same-Immaterial matters as to knowledge.-In prosecution under this section, where defendant took girl from person having legal charge of the father's children, for purpose of prostitution, it is immaterial whether defendant knew that she had a father living, and equally immaterial whether act was done with or without her consent. The girl was, in contemplation of law, in the charge of her father.-People v. Cook, 61 Cal. 478, 479.

11. Same-Mother's, sufficient.-One who takes minor female from actual custody of her mother for purposes of prostitution should not be heard to say that as between mother and father, latter may have had better right to custody of child, and may have given his consent. So long as child was in actual custody of mother, latter was bound by every principle of law, humanity, and parental care to protect her person, and had legal charge of her person, within meaning of the statute.-People v. Fowler, 88 Cal. 136, 138, 25 Pac. 1110.

12. Evidence admissible-Particular acts of illicit intercourse.-On trial of indictment founded on this statute, it is admissible to prove previous particular acts of illicit intercourse on part of female abducted.-Lyons v. State, 52 Ind. 426, 1 Am. Cr. Rep. 28.

13. Evidence inadmissible - Want of chastity. In prosecution under this section, it is not admissible to show that child had had sexual intercourse with number of men. Want of chastity is no defense, and gist of this offense is taking away of the child against will of person having lawful charge of her, for purposes of prostitution.-People v. Demousset, 71 Cal. 611, 613, 614, 7 Am. Cr. Rep. 1, 12 Pac. 788.

14. Same-When properly excluded.-In a prosecution under this section, evidence brought by defendant, that child alleged to have been abducted had had previous illicit intercourse with her stepfather is immaterial, and properly excluded. People v. Demousset, 71 Cal. 611, 616, 7 Am. Cr. Rep. 1, 12 Pac. 788.

15. Evidence not sufficient to sustain information.-Cases where there was no evidence to sustain the information.-People v. Murray, 2 Cal. Unrep. 356, 4 Pac. 504;

People v. Powellson, 2 Cal. Unrep. 474, 7 Pac. 35, 36.

16. Evidence sufficient to convict under this section.-Slocum v. People, 90 111. 274, 280.

17. Gist of offense prescribed in this section is taking away of child against will of person having lawful charge of her, for purpose of prostitution; and one who does SO acts at his peril, and can not defend himself on plea of ignorance as to age of child.-People v. Dolan, 96 Cal. 315, 318, 31 Pac. 107.

18. as to age not required.—In prosecution under this section, it is not necessary for information to allege that defendant knew that girl was

Information-Allegation

under age. One who violates prohibition

of this section does so at his peril, and can not defend himself on plea of ignorance as to age of child.-People v. Fowler, 88 Cal. 136, 138, 25 Pac. 1110.

19. Same-Following language of statute. -Information, under this section, is sufficient where it follows language of statute. -People v. Fowler, 88 Cal. 136, 138, 25 Pac. 1110.

20. Same-Tests of sufficiency.—Information, under this section, is sufficient where it alleges all acts and facts which legislature has said shall constitute offense, and is direct and certain, both as to party charged and particular offense charged. These are tests of sufficiency in matters of averment. It is not necessary to allege that mother had "legal charge" of her child. -People v. Fowler, 88 Cal. 136, 138, 25 Pac. 1110.

21. Inapplicable when - The above section is inapplicable to case where female is not in charge of father, mother, or legal guardian.—People v. Flores, 160 Cal. 770, 118 Pac. 246.

22. Marriage immaterial. This section does not require that the abducted female be unmarried, and failure to prove she is unmarried, although it be so alleged, is immaterial.-People v. Newton, 11 Cal. App. 762, 764, 106 Pac. 247.

from

does

23. "Prostitution” - Distinguished seduction.-The word "prostitution" not mean seduction, or sexual intercourse confined exclusively to one man, but common, indiscriminate, illicit intercourse, or offering of body for indiscriminate commerce with men.-State v. Ruhl, 8 Iowa 447, 453.

24. Purpose and intent-Question for jury. This section requires that the abduction be "for the purpose of prostitution" and the purpose and intent with which the abduction was done is peculiarly a matter for the determination of the jury.-People v. Newton, 11 Cal. App. 762, 763, 106 Pac. 247.

25. Taking or enticing-Acts as evidence. -It is not necessary, in prosecution under this section, to show that purpose of taking

girl to house was to make her prostitute, but accused is to be judged by acts, rather than by words.-Ex parte Estrado, 88 Cal. 316, 318, 26 Pac. 209.

It

26. Same-Crime, when complete. must be conceded that offense defined by this section is complete when there is taking for purpose of prostitution. Actual placing in house of prostitution is not made essential element of crime by statute. It is taking from parent, or other person having legal charge of child, for prohibited purpose, that constitutes this crime. The gravamen of offense is purpose and intent with which enticing and abduction is done, and offense is complete whenever abduction for prohibited purpose is complete, no matter whether any sexual intercourse results or not.--People v. Lewis, 141 Cal. 543, 545, 75 Pac. 189.

27. Same-Non-disclosure of character of place. In prosecution under this section, where evidence shows that woman took young girl, without knowledge or consent of her parent, and put her to work as domestic servant in house of prostitution, without disclosing to her or to her father what character of place was, it is sufficient to justify conviction.-Ex parte Estrado, 88 Cal. 316, 319, 26 Pac. 209.

28. Same-No offense, when.-It seems that enticing of female from her parents' house solely for purpose of having illicit sexual intercourse with her, by party so enticing, is not an offense under statute, unless such intercourse amounts to concubinage or prostitution.-Slocum v. People, 90 I11. 274, 280.

29. Same-The purpose of prostitution, how proved.-In prosecution under this section, it is not necessary that there shall be express testimony as to fact that the "taking" was for purpose of prostitution. Acts are surest indications of one's purpose. When girl is surreptitiously taken from her mother's roof by prostitute, and those who keep company with her, and conducted to house of prostitution, fair and reasonable inference is that she is taken there for purpose of prostitution.-People v. Marshall, 59 Cal. 386, 388.

30. Same-Seductive arts.-The kind and extent of seductive arts which will satisfy

law do not depend upon any absolute rule. If inducements held out do, as matter of fact, entice young woman from her parents' home, then both letter and spirit of statute are met, so far as taking or enticing away is involved.-Slocum v. People, 90 Ill. 274, 279.

31. Same Taking by force not required. -Neither language nor intent of this section requires that "taking" shall be by force, and both are satisfied if it is accomplished by improper solicitations or inducements. People v. Marshall, 59 Cal. 386, 388. 32.

Same-Taking by inducement sufficient.-Under this section, taking need not have been forcible, to constitute offense; it is sufficient if it was brought about by inducement of defendant.-People V. Demousset, 71 Cal. 611, 613, 7 Am. Cr. Rep. 1, 12 Pac. 788. See Humphreys v. Pope, 122 Cal. 253, 257, 54 Pac. 847.

33. What is no defense-Belief as to age. -In prosecution under this section, testimony offered, tending to show that defendant believed, or had good reason to believe, or that he presumed, witness was, at time of taking or enticing away, over age stated, will not aid defendant, if in fact female was under age named in statute.-State v. Ruhl, 8 Iowa 447, 450.

34.

Same-Consent of child.-In prosecution under this section, child's consent is of no avail to defendant if she was under age, although he in good faith believed, and had reasonable ground for believing, that she was over age. Defendant must, in such case, act at his peril in abducting girl under age, and can not defend himself on plea of ignorance as to her age.-People v. Dolan, 96 Cal. 315, 320, 321, 31 Pac. 107.

35. Same-Defect in commitment, in describing offense prescribed by this section, is immaterial if it is sufficiently described in order indorsed on depositions.-Ex parte Estrado, 88 Cal. 316, 318, 26 Pac. 209.

36. Same-Disclosure of purpose to female. If object and motive of procurer be to get girl to leave home for purpose of making her inmate of house of prostitution, then it is immaterial that such purpose was not disclosed to or known by girl.-Slocum v. People, 90 Ill. 274, 280.

SEDUCTION.

1. Construction of section-Gist of offense.

2. Same Crime of infant.

3. Same-Felony or misdemeanor.

4. Same-Good faith of defendant.

5. Same-Misdemeanor, when barred.

6. Before crime of seduction is made out-What must appear.

7. Chaste character-Confined to what.

8. Same-Evidence of reputation. 9. Same-Same-Province of jury.

10. Same-Consummation of crime-Mar

riage.

11. Condition that woman become enceinte.
12. Evidence admissible-Previous chaste
character.

13. Same-Illustrative case.
14. Same-In general.

15. Same-Previous chaste character, how
proved.

16. Same-Proof of chaste character, how
limited.

17. Evidence inadmissible-In general.
18. Same-Improper cross-examination.
19. Same-Improper questions.

20. Same-Want of chastity

21. Evidence insufficient to justify conviction.

22, 23. Evidence sufficient to justify conviction.

24. Same-Section 1108 has no application.

25. Same-What must be proved.

26. Evidence sufficient to justify submission.

27. Infancy will not save one from prosecution.

28. Information-Sufficiency of. 29. Instruction-Not prejudicial. 30. Same-Proper instruction. 31. Instruction properly refused. 32, 33. Proof that promise was not binding. 34. Promise contemplated by section.

1. As to construction of section-Gist of offense defined in this section is accomplishment of act by means of promise of marriage as inducing cause of consent of one seduced. It is not essential, however, in such case, in order to convict, that evidence shall disclose any express or direct reference by seducer to such promise as means to accomplish his purpose; nor, on other hand, that consent of female shall be expressly rested by her on such consideration. It is sufficient if circumstances be such as to warrant jury in deduction that act of sexual intercourse would not have been sufficient without, or in absence of, such promise.-People v. Wallace, 109 Cal. 611, 612, 42 Pac. 159.

2. Same-Crime by infant.-Offense defined in this section consists in having illicit connection with unmarried female who yields to solicitations of her seducer under inducement of promise of marriage; and it may be committed by infant upon infant, provided they have reached age of puberty. -People v. Kehoe, 123 Cal. 224, 229, 69 Am. St. Rep. 52, 55 Pac. 911.

to be construed one or other depends upon character of judgment rendered by trial court. If judgment be imprisonment in state prison, crime is felony; if fine only, or imprisonment in county jail, misdemeanor.-People v. Gray, 137 Cal. 267, 268, 70 Pac. 20.

4. Same-Good faith of defendant.-Under this and next section, defendant's good faith is not matter of any consequence in determining his guilt or innocence. If, under and by means of his promise of marriage, he induced prosecutrix to surrender her chastity to him, and then refused to fulfil his promise, offense is committed, whatever his intentions might have been when such promise was made, and subsequent marriage will not prevent conviction, unless it took place before information was filed.-People v. Samonset, 97 Cal. 448, 452, 32 Pac. 520.

5. Same

Misdemeanor, when barred.If person is convicted of misdemeanor simply, under this section, and information was not found within one year after commission of offense, alleged offense is barred. It is no answer to this defense to say that indictment on its face charges felony, where it merely charges certain offense which may be felony or misdemeanor, and is therefore as much charge of one as of other. If this position is tenable, defense of statute of limitations to charge of misdemeanor could always be destroyed by simple device of indicting defendant for some felony under which he could be convicted of outlawed lesser offense.-People v. Gray, 137 Cal. 267, 269, 70 Pac. 20.

6. Before the crime of seduction is made out, as defined by section 268, Pen. C., it must appear that the prosecutrix has relied upon the promise of the accused that he will marry her; if such prosecutrix at the time knows that the promise so made can not be carried out, as that the accused is a married man, then she is not warranted in relying upon such a representation.-People v. Wright, 18 Cal. App. 171, 173, 122 Pac. 835.

7. Chaste character-Confined to what. -In prosecution under this section, chaste character of prosecutrix is confined to her previous chaste character, and evidence of her subsequent sexual intercourse with other men is properly excluded. Chastity,

as here implied, means, in case of an unmarried female, simply that she is virgo intacta, and though one woman may permit familiarities, liberties, or even indecencies, at the thought of which another woman would blush, so long as that woman has not surrendered her virtue she is not put without the pale of the law.-People v. Kehoe, 123 Cal. 224, 229, 69 Am. St. Rep. 52, 55 Pac. 911.

8. Same-Evidence of reputation of prosecutrix for chastity is admissible for purpose of showing her character as previously chaste female.-In re Vandiveer (Cal. App. Dec. 31, 1906), 88 Pac. 993.

9. Same Same — Province of jury.—In prosecution under this section, where intercourse is matter conceded, but promise of marriage is denied, and evidence establishes female to be of previously chaste character, it is for jury to hear evidence and declare result.-People v. Hough, 120 Cal. 538, 540, 65 Am. St. Rep. 201, 52 Pac. 846.

10. Same Consummation of crime — Marriage.—Under this section, when man induces unmarried female of previous chaste character to submit her person to him by reason of promise of marriage upon his part, seduction has taken place, and crime has been committed. Next succeeding section, which provides that marriage is bar to prosecution, duly recognizes that crime has been committed when promise has been made and intercourse thereunder has taken place. Yet woman is not compelled to condone offense by marrying man, and thus freeing him from penalties of law. Upon seduction, her affection for him may change to hatred; or thereafter her belief as to his good character may be displaced with knowledge that he is a felon. Indeed, whether or not reasons which actuate her in refusing to marry him are good or bad is of no moment. She is sole arbiter upon that question, and man takes those chances when he obtains his pleasures under circumstances here presented. It does not lie in his power to escape penalties of law by reason of his willingness to carry out his marriage promise. The woman has power and right to decline marriage, and, when she has so declined, road to his successful prosecution is free and undisturbed.-People v. Hough, 120 Cal. 538, 539, 540, 65 Am. St. Rep. 201, 52 Pac. 846.

woman

en

11. Condition that become ceinte.-Promise to marry the woman only in case she became enceinte as the result of the immoral relations is not a crime, but there is a distinction between such a case and one of a promise to marry if the woman would consent to the intercourse, coupled with a declaration of the man "that he would take care of her" if she became pregnant.-People v. Jensen, 15 Cal. App. 220, 114 Pac. 585.

12. Evidence admissible-Previous chaste character.—Testimony is admissible, under this section, to show previous chaste character of prosecutrix prior to time of alleged seduction.-People v. Tibbs, 143 Cal. 100, 102, 76 Pac. 904.

13. Same Illustrative case.-Evidence admissible as tending to show that prosecutrix under this section was woman of previous chaste character.-People v. Samonset, 97 Cal. 448, 452, 453, 32 Pac. 520.

14. Same-In general.-Evidence admissible in prosecution under this section.People v. Tibbs, 143 Cal. 100, 102, 76 Pac. 904.

15. Same Previous chaste character, how proved. In prosecution under this section, previous chaste character of prose

cross-examination.

18. Same — Improper -In a prosecution for seduction of female of previous chaste character, under promise of marriage, question asked of third person as witness, namely, "During time you knew her, or at any time, have you ever known any improper conduct on her part?" is not proper cross-examination.-People v. Godwin, 123 Cal. 374, 376, 55 Pac. 1059.

19. Same-Improper questions.--On prosecution for seduction of female of previous chaste character, under promise of marriage, prosecutrix can not be impeached by testimony of third person that he had never had sexual intercourse with her; and such witness can not properly be asked if he had not, at several specific times and places, stated to certain individuals that he had had sexual intercourse with the prosecutrix. People v. Godwin, 123 Cal. 374, 375, 55 Pac. 1059.

20. Same-Want of chastity.-Under this section, evidence of general reputation of female for want of chastity is inadmissible. By "chaste character," statute means actual personal virtue, and not reputation, and requires specific acts of lewdness for impeachment.-Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177.

21. Evidence insufficient to justify conviction.-Evidence insufficient for conviction in prosecutions under this section.People v. Krusick, 93 Cal. 74, 78, 28 Pac. 794.

22. Evidence sufficient to justify conviction.-In prosecution under this section, statement made by prosecutrix, in terms, that she did not consent to act, does not control jury, where her testimony, taken as whole, shows that she did so consent, but which also shows that her objections were SO far overcome by defendant's solicitations that she yielded reluctant acquiescence in his act.-People v. Wallace, 109 Cal. 611, 613, 42 Pac. 159.

23. As to sufficiency of evidence to justify magistrate in holding defendant to answer for this offense, see In re Vandiveer, 4 Cal. App. 650, 88 Pac. 993.

24. Same-Section 1108 has no application. Under this section, evidence of prosecutrix, whether corroborated or not, if believed by jury and presiding judge, is sufficient to justify conviction. Section

1108 post has no application to offenses committed in violation of this section.People v. Wade, 118 Cal. 672, 674, 60 Pac. 841.

25. Same What must be proved.-In order to convict defendant of crime defined in this section, it is necessary for state to prove that person seduced was "unmarried female of previous chaste character," and that she consented to sexual intercourse with defendant upon sole consideration of his promise to marry her. Unless all of these elements are established by competent evidence, crime is not proved. It is as essential for prosecution to show that person against whom offense was committed is of character named in statute as it is to show that sexual intercourse was had under promise of marriage. Statute does not attempt to punish seduction of married woman, or of one whose character was not previously chaste, nor does it attempt to punish illicit cohabitation, or seduction of unmarried woman whose character was previously chaste, which is accomplished either in whole or in part by any other means, or from any other motive than promise of marriage.-People v. Krusick, 93 Cal. 74, 77, 28 Pac. 794.

26. Evidence sufficient to justify submission of case, under this section, to. jury. -People v. Hough, 120 Cal. 538, 540, 65 Am. St. Rep. 201, 52 Pac. 846.

27. Infancy will not save one against prosecution under this act. if promise, though made by infant, is consideration for, or inducement to, illicit intercourse, and offense is complete.-People v. Kehoe, 123 Cal. 224, 229, 69 Am. St. Rep. 52, 55 Pac. 911.

30. Same-Proper instructions.-Instructions held proper in prosecution under this section.-People v. Samonset, 97 Cal. 448, 452, 453, 32 Pac. 520; People v. Wallace, 109 Cal. 611, 613, 42 Pac. 159; People v. Kehoe, 123 Cal. 224, 230, 69 Am. St. Rep. 52, 55 Pac. 911.

See par. 33, this note.

31. Instruction properly refused in prosecution under this section.-People v. Samonset, 97 Cal. 448, 453, 32 Pac. 520.

32. Proof that promise was not binding. -If previously chaste woman submits herself to embraces of man, under promise of marriage from him, upon which in fact she relies, conviction, generally speaking, may not be avoided by proof that promise was not legal and binding. The exceptions to rule are found in those cases in which promise itself is base and meretricious, and known to be such by consenting woman. Thus if married man seduces woman, under promise of marriage, she not knowing that he has wife, his promise is illegal and invalid, but this fact does not excuse him. The woman, in ignorance of fact, is justified in relying upon that promise; but if, at time of giving her consent, she knew fact to be that man was married, and that, therefore, promise was necessarily conditional upon death or putting away of his present wife, such a base contract would not excuse her in law for surrender of her chastity. The contract itself would be void as against public policy, and woman's reliance upon it could not be extenuated or excused. People v. Alger, 1 Park. C. C. (N. Y.) 333.

33. Compare: People v. Kehoe, 123 Cal. 224, 227, 69 Am. St. Rep. 52, 55 Pac. 911.

34. Promise contemplated by this section need not be such legal promise as would support action for its breach, provided it be such promise as would justify the reliance upon it of the woman betrayed.-People v. Kehoe, 123 Cal. 224, 227, 69 Am. St. Rep. 52, 55 Pac. 911.