People v. James

FRICKE, J.,

pro tem.

Appeal from judgment and order denying a new trial. Defendant was convicted of a violation of section 288 of the Penal Code, the offense being committed upon his five-year-old daughter. The sole question presented on this appeal is whether it was error to permit appellant’s wife, the mother of the child, to testify against him over objection.

While the wife of a defendant in a criminal action is, under section 1322 of the Penal Code, generally not a competent witness against him, that section contains various exceptions to this general rule, among which is in cases of “criminal violence” by the husband upon a child of the wife. This reduces the legal problem before us to the question as to whether the act made punishable by section 288 is one of “criminal violence”.

The terms “violence” and “force” are synonymous when used in relation to assault

(People

v.

Will,

79 Cal. App. 101, 119 [248 Pac. 1078]), and include any application of force even though it entails no pain or bodily harm and leaves no mark. As stated in

People

v.

Bradbury,

151 Cal. 675, 677 [91 Pac. 497], quoting from Bishop on Criminal Law, “The kind of physical force is immaterial ... ; it [violence] may

[164]

consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will.” It follows that the taking of indecent liberties with a five-year-old child is an act of violence, and if of the type described and made punishable by section 288 of the Penal Code, is “criminal violence”. Appellant cites

People

v.

Curiale,

137 Cal. 534 [70 Pac. 468, 59 L. R. A. 588], in which the court held that an act of sexual intercourse by defendant with his wife before marriage, she being under the age of consent, was not an act of criminal violence