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12. Indictment or information Sufficiency of.-In an indictment charging defendant with having feloniously introduced instrument into womb of pregnant woman, with intent to produce miscarriage, it is sufficient to charge that instrument was feloniously so introduced, without showing what kind of wound it produced or what diseases it caused. Where felonious use of instrument is shown, and it appears that operation was not necessary to save woman's life, it is not incumbent upon state to go further.-Rhodes v. State, 128 Ind. 189, 25 Am. St. Rep. 429, 27 N. E. 866.

13. Information charging that the defendant used certain instruments upon one A, who was then and there a pregnant woman, with intent to procure a miscarriage, would be improved by alleging the instruments were used "upon the body" of A, but the omission of the words "upon the body" raises no doubt as to what was meant and what defendant might readily have understood to have been meant by the language used and is, therefore, sufficient.People v. T. Wah Hing, 15 Cal. App. 195, 114 Pac. 416.

14.

Marriage of woman after pregnancy -As affecting her competence as a witness. -The fact that the woman was married to another man after pregnancy, and that the child was born while such marriage existed, does not preclude her testimony to show that such pregnancy existed prior to her marriage, and at the time the medicine was prescribed for the purpose of producing a miscarriage.-People v. Richardson, 161 Cal. 560, 120 Pac. 20.

15. Subsequent pregnancy-Setting aside verdict of conviction.—A mere possibility that pregnancy took place after the medicine was furnished will not warrant the setting aside of a verdict of guilty, where the evidence is sufficient to justify the jury in concluding, beyond a reasonable doubt, that pregnancy existed at the time the medicine was furnished.-People v. Richardson, 161 Cal. 559, 120 Pac. 20.

16. Verdict of manslaughter.-Under a charge of murder by attempting to procure an abortion a verdict of manslaughter may be returned and will be upheld.-People v. Huntington, 8 Cal. App. 612, 619, 97 Pac. 760.

§ 275. SUBMITTING TO AN ATTEMPT TO PRODUCE MISCARRIAGE. Every woman who solicits of any person any medicine, drug, or substance whatever, and takes the same, or who submits to any operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not less than one nor more than five years.

History: Enacted February 14, 1872, founded on § 1, Act May 20, 1861, Stats. 1861, p. 588.

CHAPTER IV.

CHILD-STEALING.

§ 278. Definition and punishment of child-stealing.

$278. DEFINITION AND PUNISHMENT OF CHILD STEALING. Every person who maliciously, forcibly, or fraudulently takes or entices away any minor child with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, is punishable by imprisonment in the state prison not exceeding twenty years.

History: Enacted February 14, 1872, founded on § 2 Act April 19, 1856, Stats. 1856, p. 131; amended March 11, 901, Stats. and Amdts. 1900-1, p. 269.

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enough to show that there was an intent to conceal the minor, but the intent must be accompanied with an intent to detain, and both must exist, and be found by the jury, in order to constitute an offense under the statute. The matter of intent, both as to detention and concealment, is made a question of fact, under the provision of the section, and this question of fact is to be proven, like any other fact. from the acts and conduct of the parties, considered in connection with all the other circumstances in the case; and while it is the peculiar province of a jury to find upon the fact of intent, and their finding thereon is generally conclusive, yet this conclusiveness exists only when the evidence bearing upon intent (when the intent is made a question of fact) is such that the jury were warranted in reasonably inferring therefrom the existence of the particular intent made necessary by the law to be found by them in order to support their verdict. This is true when the evidence, even though meager, is yet sufficient, if believed by the jury, to support their finding and is always true when sufficient, but conflicting, evidence is presented upon the subject.People v. Black, 147 Cal. 426, 430, 81 Pac. 1099.

3. Same-Same-Concealment alone not sufficient.-"Now, while it is true that, in compliance with the promise made to the girl Dottie not to disclose her abidingplace, he deceived her mother when she sought information from him as to where her daughter was, still, taking this as evidence tending to prove concealment under the statute, it was only proof bearing on

one of the essential elements necessary to be proven thereunder. It was essential, further, to prove that the girl was taken by defendant with intent, not only to conceal her, but to detain her from her mother."People v. Black, 147 Cal. 426, 428, 81 Pac. 1099.

4. Same Same Intent - No conflict -Question of law.-When there is no conflict in the evidence, and all the evidence which was before the jury, and from which they found upon matter of intent, is before the court, there is then presented a question of law, whether such evidence was sufficient to sustain the finding of specific intent which the law requires shall exist in order to constitute the offense of childstealing.-People v. Black, 147 Cal. 426, 430, 81 Pac. 1099.

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6. The court say: "So far as we have been able to discover, the question of the consent of a minor, under the section which is the basis of the information here, has not been passed upon by any of the appellate courts of this state. Still, we believe the conclusion here reached is, as we have seen, supported by both principle and the weight of authority of the courts of other jurisdictions."-Citing State v. Brandenberg, 232 Mo. 531, 32 L. R. A. (N. S.) 845, 134 S. W. 529; Gould v. State, 71 Neb. 651, 99 N. W. 541; Reg. v. Biswell, 2 Cox C. C. 279.

CHAPTER V.

BIGAMY, INCEST, AND THE CRIME AGAINST NATURE.

$281. Bigamy defined. $282. Exceptions.

§ 283. Punishment of bigamy.

§ 284. Marrying a husband or wife of another, punishment.

$285. Incest.

§ 286. Crime against nature. § 287.

Penetration sufficient to complete the crime.

§ 288. Lewd and lascivious conduct with child. Felony.

§ 288a. Fellatio and cunnilingus felonies.

§ 281. BIGAMY DEFINED. Every person having a husband or wife living, who marries any other person, except in the cases specified in the next section, is guilty of bigamy.

History: Enacted February 14, 1872, founded on § 121, Criminal
Practice Act, Stats. 1850, p. 244.

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15. Same-Belief that first wife was divorced.

16. Same-Honest belief that defendant was not married.

17. Same-Mistaken belief that first marriage was void.

18. Same-Plea of duress.

19. Evidence-As to admissibility of. 20, 21. Same-Admissions of defendant. 22. Same-Cohabitation.

23. Same-General reputation of first mar-
riage.

24. Same-Judgment of divorce, when.
25. Same-Manner of intercourse.

26, 27. Same-Of first marriage.

28. Same-Same-First wife still living.
29. Same-Same-Otherwise where solem-
nization and ceremony not required.
30. Same-Presumptive evidence, incom-
petent for what.

31. Same-Presumption of innocence.
32. Same-Reputation is incompetent.
33. Indictment and information-As to
necessary averments.

34, 35. Same-Same-Date and place of first marriage.

36. Same Same-Knowledge of legality of first marriage.

37. Same-Same-Second marriage. 38, 39. Same-Matters of defense-Exception embodied in subd. 1, § 282, post.

40. Same Same-Exceptions embodied in subd. 2, § 282, post.

41, 42. Same-Sufficient when.

43. Instructions-What properly refused. 44. Marriage-Consent followed by Cohabitation.

45. Same-No form necessary.

46. Same-Sufficient to support charge.

1. Bigamy in another state-Completion of crime.—If person having husband or wife living in this state goes into another state, and marries again, the crime of bigamy is completed by such second marriage, and the place where such second marriage occurs is, undoubtedly, the place where the crime is committed, within the meaning of the criminal law. Hence he must be indicted and tried for bigamy in the state where such second marriage took place.Note 93 Am. Dec. 257.

2. Same-Extraterritorial force of laws. -One state can not enforce the criminal laws of another state, nor punish crimes committed in or against another state. The criminal laws of a state have no force beyond its territorial limits.-State v. Hall, 114 N. C. 909, 41 Am. St. Rep. 822, 28 L. R. A. 59, 19 S. E. 602.

3. Same - Indictment should be found, where.-An indictment for bigamy must always be found within the jurisdiction where second marriage took place.-John

son v. Commonwealth, 86 Ky. 122, 9 Am. St. Rep. 269, 5 S. W. 365; People v. Mosher, 2 Park. Cr. Rep. (N. Y.) 195.

See note, 9 Am. St. Rep. 269.

4. Same Venue of crime.-If married man goes into another state and marries there, and within the parties come this state, the law of this state does not punish cohabitation here under a bigamous marriage; the offense committed is not an offense against the laws of this state, and there can be no conviction of bigamy in this state.-Note 93 Am. Dec. 257; State v. Cutshall, 110 N. C. 538, 16 L. R. A. 130, 15 S. E. 261.

5. Same Where punishable.-In some of the states it is, by statute, made punishable for a person, who is married, to marry another person, if former husband or wife is then living, or to continue to cohabit with such second husband or wife, without regard to the state or country where such second marriage may have been contracted. In a state where the legislature has never enacted such statute, the offense consists alone of the second marriage, and, like any other criminal act, must occur in such state, to be made punishable by its laws.-Johnson v. Commonwealth, 86 Ky. 122, 9 Am. St. Rep. 269, 5 S. W. 365.

6. Definition — “Husband" interpreted.People v. Hovey, 5 Barb. (N. Y.) 117.

7. Guilt or innocence of accused party depends upon legality of the first marriage. -Regina v. Willshire, 50 L. J. M. C. 57, 6 Q. B. Div. 366, 14 Cox C. C. 541, 20 Am. L. Reg. N. S. 717; Bresky v. Bresky, 2 Up. Can. (Q. B.) 353.

See par. 8, this note.

8. Gist of offense-Validity of first marrlage.-Gist of offense consists of entering into second marriage while a valid first one exists. If a former marriage is void, a subsequent marriage by one of the parties to a third person is not bigamous. See Ark. Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17. Me. State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 742. Mich. People v. Lambert, 5 Mich. 349, 72 Am. Dec. 49; People v. Brown, 34 Mich. 339, 22 Am. Rep. 531, 1 Am. Cr. Rep. 72. N. Y. People v. Case, 14 Hun 503. Ohio, Shafher v. State, 20 Ohio 1. Vt. State v. Horn, 43 Vt. 20. Va. O'Neil v. Commonwealth, 17 Gratt. 532. W. Va. State V. Goodwin, 14 W. Va. 334. Can. Bresky v. Bresky, 2 Up. Can. (Q. B.) 353. Eng. Rex v. Butler, Russ. & Ry. 61.

9. Same-Failure to prove first marriage valid by the lex loci contractus is fatal to the case of the prosecution.-Ala. Parker v. State, 77 Ala. 47. Ga. King v. State, 40 Ga. 246. Iowa. State v. Hughes, 58 Iowa 165, 11 N. W. 707. Minn. State v. Johnson, 12 Minn. 476, 481, 93 Am. Dec. 241. N. C. State v. Patterson, 2 Ired. L. 345. Va. O'Neil v. Commonwealth, 17 Gratt. 587; Budd v. Commonwealth, 21 Gratt. 106. Wis. Weinderg v. State, 25 Wis. 370. Fed. United States v. Jennegon, 4 Cr. C. C. 118, 26 Fed. Cas.

306. Eng. Sorinshire v. Scrimshire, 2 Hag. Const. 370.

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10. Same Second marriage an indispensable element of the offense.-Ala. Begg v. State, 55 Ala. 108; Brewer v. State, 59 Ala. 101. Mich. People v. Brown, 34 Mich. 339. N. Y. Hayes v. People, 25 N. Y. 39, 82 Am. Dec. 364.

11. The second marriage must Occur within the territorial jurisdiction of the state; if the overt act is committed in another state, although the first spouse resides in this state at the time, and the married couple subsequently return to this state, a grand jury of this state has no power to inquire into such offense, and the courts no jurisdiction to try, and inflict punishment for, such offense; and on presentation of an indictment showing fact, or as soon as fact is disclosed in the proceedings, that second marriage occurred outside this state, it is the duty of the presiding judge to dismiss the cause of his own motion. See, ante, § 4, note par. 19, and ante § 27 and note.

12. Same-Where first marriage invalid by the laws of the place where contracted, it is invalid everywhere, and a prosecution can not be predicated thereon.-See Hutchins v. Kimmell, 31 Mich. 131, 18 Am. Rep. 164; Paris v. Cooper, 31 Up. Can. (Q. B.) 182.

13. Jurisdiction to determine disputed marriage.A justice of the peace or a police magistrate may determine as to a disputed marriage, where such determination is necessary to the finding of the guilt or innocence of a person on trial.-People ex rel. Lichtenstein v. Hodgson, 126 N. Y. 647, 27 N. E. 378.

14. Defenses-Belief that first wife was dead. In prosecution for bigamy, defendant's bona fide and reasonable belief that first wife was dead at time of second marriage does not entitle him to acquittal.— Commonwealth v. Hayden, 163 Mass. 453, 457, 47 Am. St. Rep. 468, 470, 28 L. R. A. 318. 40 N. E. 846.

15. Same-Belief that first wife was divorced. In prosecution for bigamy, defendant's honest belief that he had been divorced from first wife before second marriage is no defense, though that fact is admissible in mitigation of punishment.Russell v. State, 66 Ark. 185, 190, 74 Am. St. Rep. 78, 49 S. W. 821.

16. Same-Honest belief that defendant was not married. In prosecution for bigamy, where second marriage is admitted, defendant's honest belief that he had not been married to the woman who was then his wife does not authorize an acquittal.-People v. Hartman, 130 Cal. 487, 491, 62 Pac. 823.

17. Same-Mistaken belief that first marriage was void.-Defendant's mistaken belief that his first marriage was void at time of his second marriage, is mistake of law.

and no defense to charge of bigamy.Medrano v. State, 32 Tex. Cr. Rep. 214, 40 Am. St. Rep. 775, 22 S. W. 684.

18. Same-Plea of duress.-In prosecution for bigamy, defendant can not plead duress to avoid a prosecution for seduction when he married the second time.-Medrano v. State, 32 Tex. Cr. Rep. 214, 40 Am. St. Rep. 775, 22 S. W. 684.

of.—

19. Evidence-As to admissibility Evidence admissible in prosecution for bigamy.-Commonwealth V. Hayden, 163 Mass. 453, 47 Am. St. Rep. 468, 472, 28 L. R. A. 318, 40 N. E. 846.

20. Same-Admissions of defendant are not competent evidence to establish the first marriage.-People v. Jones, 31 Cal. 565, 566; People v. Thrall, 50 Cal. 415. Conn. State v. Roswell, 6 Conn. 446. Minn. State v. Johnson, 12 Minn. 476, 93 Am. Dec. 241. N. Y. People v. Humphrey, 7 John. 314. Eng. Regina v. Savage, 13 Cox Cr. Cas. 178, 14 Moak Eng. Rep. 632.

See, note, 93 Am. Dec. 254.

21. Unless admission is incidental to cohabitation, it is not sufficient to prove first marriage.People v. Lambert, 5 Mich. 349, 72 Am. Dec. 49. See Regina v. Flaherty, 2 Car. & K. 782, 61 Eng. C. L. 781; Regina v. Savage, 13 Cox Cr. Cas. 178, 14 Moak Eng. Rep. 632.

22. Same-Cohabitation can not be shown for purpose of establishing first marriage.People v. Anderson, 26 Cal. 129, 133. See Williams v. State, 44 Ala. 24; Brown V. State, 52 Ala. 340; Moore v. State, 7 Tex. Ct. App. 608.

23. Same-General repute of first marriage. In prosecution for bigamy, general repute of first marriage is admissible as circumstance tending to show marriage.-People v. Hartman, 130 Cal. 487, 489, 62 Pac. 823.

24. Same-Judgment of divorce, when.In prosecution for bigamy, a judgment of divorce establishing first marriage is not admissible in evidence against defendant to prove any matters adjudicated thereby, if appeal is pending from such judgment. -People v. Beevers, 99 Cal. 286, 290, 9 Am. Cr. Rep. 139, 33 Pac. 844.

25. Same- Manner of intercourse.-In prosecution for bigamy, proof of manner of intercourse between defendant and his wife after contract of marriage is admissible in evidence to corroborate testimony of prosecutrix as to actual marriage.Hayes v. People, 25 N. Y. 390, 82 Am. Dec. 364, 366.

26. Same-Of first marriage must be established by strict proof, in order to support prosecution and justify conviction on charge of bigamy. See Mich. Hutchins v. Kimmell, 31 Mich. 126, 131, 18 Am. Rep. 164. Minn. State v. Johnson, 12 Minn. 376, 93 Am. Dec. 241. N. Y. Clayton v. Wardell, 4 N. Y. 231. Eng. Regina v. Savage, 13 Cox Cr. Cas. 178, 14 Moak Eng. Rep. 632.

27. It must not only be proven to have been valid under law of the place where contracted, but it must be shown that marriage ceremony was performed by person duly authorized for that purpose; proof should be made of alleged authority of officiating minister.-See Me. State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 742. N. C. State v. Bray, 13 Ired. 289. Vt. State v. Horn, 43 Vt. 20.

28. Same-Same-First wife still living at time of second marriage must be shown by prosecution. Burden of showing that she was dead does not shift to defendant, under any circumstances short of positive proof that she was living at that time.— Regina v. Willshire, 50 L. J. M. C. 57, 6 Q. B. Div. 366, 14 Cox C. C. 541, 20 Am. L. Reg. N. S. 717.

29. Same- Same - Otherwise where solemnization and ceremony not required to make valid marriage. - See Sharon V. Sharon, 75 Cal. 1, 16 Pac. 345; and Farley v. Farley, 94 Ala. 501, 33 Am. St. Rep. 141, 10 So. 646.

See Kerr's Cyc. Civ. Code (2d Ed.), §§ 33, 57, 79, and notes.

30. Same-Presumptive evidence - Incompetent to establish first marriage. People are not to be convicted of felony upon legal presumptions.-Fla. Green v. State, 21 Fla. 403, 58 Am. Rep. 70. Me. State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 742. Wis. Weinberg v. State, 25 Wis. 372. Can. Bresky v. Bresky, 2 Up. Can. (Q. B.) 353. As to presumption and burden of proof in trials for bigamy, see 5 Cyc. 699.

31. Same- Presumption of innocence, which attaches to every one accused of crime until his guilt is established by legal evidence, overcomes all other presumptions, and if in conflict with that of marriage, it will prevail.-See Case v. Case, 17 Cal. 598, People v. Anderson, 26 Cal. 129, 133.

32. Same-Reputation is incompetent to establish first marriage.-See Fla. Burns v. Burns, 13 Fla. 369. Tex. Stewart v. State, 7 Tex. Ct. App. 326. Fed. Jaines v. Honnen. 65 U. S. (24 How.) 553, 605, 16 L. ed. 770. Can. Bresky v. Bresky, 2 Up. Can. (Q. B.) 253; Doe V. McWilliams, 3 Up. Can. (Q. B.) 165; Regina v. Smith, 14 Up. Can. (Q. B.) 567.

As to reputation in community, general, admissible as tending to prove that relation, see 5 Cyc. 701.

33. Indictment and information-As to necessary averments.-In an indictment or information charging bigamy, it is not necessary to set out either time or place of first marriage; it is sufficient to aver that it was valid at place where contracted, and was still subsisting at time of second marriage.-Brown v. State, 59 Ala. 101; Scroggins v. State, 32 Ark. 205.

34. Same-Same-Date and place of first marriage.—An information for bigamy need not state at what place defendant first married. People v. Giesea, 61 Cal. 53, 54.

35. It is immaterial when or where the first marriage took place if the defendant, at the time of the second marriage, had a wife living, and an information is not defective in not alleging such date and place. -People v. Priestley, 17 Cal. App. 176, 118 Pac. 965.

36.

Same-Same-Knowledge of legality of first marriage.—A second marriage under an erroneous assumption that the first marriage was void, or had been annulled or dissolved, is not even a defense to the charge of bigamy, much less need it be alleged in the information. People V. Priestley, 17 Cal. App. 177, 118 Pac. 965.

37. Same-Same-Second marriage being indispensable element of offense, it should be set out, with full particulars as to time and place, and it should be averred that ceremony was performed by person duly authorized thereto; but it is not necessary to allege that second marriage was unlawful. See 3 Encyc. Pl. & Pr. 326.

38. Same-Matters of defense-Exception embodied in subdivision 1. section 282. post. Such exception need not be negatived, but constitutes merely matter of defense, to be relied on and proved by the defendant. - People V. Priestley, 17 Cal. App. 176, 118 Pac. 965.

39. In an information charging the crime of bigamy hereunder, the exception embodied in subdivision 1 of section 282, Penal Code, not being an exception in the enacting or prohibitory clause of the act defining the offense, but being a proviso or qualification in a separate substantive clause, need not be negatived.-People v. Priestley, 17 Cal. App. 174, 118 Pac. 965. 40. Same-Same-Exception embodied in subdivision 2, section 282, post.-In an information charging bigamy it need not be charged directly that the former marriage had not been pronounced void, or annulled or dissolved, thus negativing the exception embodied in subdivision 2, section 282, Penal Code, the reason being the same as noted with reference to the exception of subdivision 1.-People v. Priestley, 17 Cal. App. 177, 118 Pac. 965.

41. Same-Sufficient when. Indictment for bigamy is sufficient where parties agreed to be husband and wife, and Cohabited and recognized each other as such. It is of no consequence whether person officiating was clergyman or not, if defendant had then a wife living.-Hayes v. People, 25 N. Y. 390, 82 Am. Dec. 364.

42. Where the information substantially follows the language of the statute, and is a substantial compliance with section 950 (subdivision 2) and section 958, Penal Code, it will be held sufficient.-People v. Priestley, 17 Cal. App. 177, 118 Pac. 965.

43. Instructions-What properly refused. -It is not error for court to refuse instruction which contains mere abstract proposition of law, where there is other evidence tending to show marriage of de

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