People v. Kasunic

WILSON, J.

Defendant was found guilty on four counts of violation of section 288 of the Penal Code, offenses committed upon his stepdaughter, and one count of violation of section 288a, an act committed upon his stepson, both being minors under the age of 14 years. He has appealed from the judgment of conviction.

Defendant’s wife, mother of the two children, was called as a witness by the prosecution and was permitted to testify over defendant’s objection that she was not a competent witness against her husband by reason of the provisions of section 1322 of the Penal Code.

*

Among the exceptions permitting one spouse to testify against the other in a criminal action are “in cases of criminal violence upon one by the other, or upon the child or children of one by the other.” An act of taking indecent liberties with a child, punishable under section 288, is one of “criminal violence.”

(People

v.

James,

9 Cal.App.2d 162,164 [48 P.2d 1011].)

The competency of a wife to testify against her husband must be determined upon the interpretation to be given to reservatory language in section 1322.

Defendant contends that the phrase “upon the child or children of one by the other” means that the child must be the issue of one spouse by the other spouse—in others words, says defendant, the child must be the issue of both spouses. Such a construction does violence to the intent and purpose of the statute and is contrary to grammatical construction. Section 1322 since its adoption in the original code of 1872 and in all amendments thereof has carried the words “in eases of criminal violence upon one by the other.” (Amendments to codes 1873-4, p. 451; Stats. 1905, ch. 139, p. 140; Stats.

[678]

1907, eh. 230, p. 290; Stats. 1911, eh. 103, p. 270; Stats. 1933, ch. 109, p. 565.) The 1933 amendment added after the above quoted words “or upon the child or children of one by the other. ’ ’