People v. Dudley

MARKS, J.

Defendant was charged with the crime of rape in one count of the information and with violating the provisions of section 288 of the Penal Code in a second count, both acts alleged to have been committed on the person of the same girl. The jury disagreed on the guilt of the defendant of the alleged crime of rape so no further attention will be given to that phase of the case. He was found guilty of the other crime.

The information charged that the crime of which defendant was convicted was committed on November 3, 1941, and evidence was offered tending to show its occurrence between two and three o ’clock on the afternoon of that date. The evidence

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is sharply conflicting, with much evidence indicating that neither crime had been committed.

Defendant moved for a new trial on all statutory grounds of which three were urged at the hearing of the motion. The trial judge denied the motion on the grounds of improper introduction of evidence over the objection of defendant and an improper instruction, and granted the motion on the ground that the evidence failed to support the verdict, specifying as his reason that the evidence showed the prosecutrix to be fourteen years of age on November 3, 1941, so that the provisions of section 288 of the Penal Code had not been violated by the alleged acts of defendant. Plaintiff has appealed from the order granting the motion for new trial.

It is admitted that November 4, 1941, was the fourteenth anniversary of the birth of the prosecutrix. The controlling question submitted by counsel for decision here is the proper construction to be placed on section 26 of the Civil Code, which provides as follows:

“The periods specified in the preceding section must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority.”

It is admitted that the common law rule that “Full age in male or female is twenty-one years, which age is completed on the day preceding the twenty-first anniversary of a person’s birth” (1 Black. Com. - 497) prevails in many jurisdictions. If that rule has not been abrogated by section 26 of the Civil Code the order must be affirmed because, if the section is merely a reenactment of the common law rule, the minor was fourteen years old at the time the acts were alleged to have been committed. Under section 288 of the Penal Code the acts must have been committeed on “a child under the age of fourteen years” to constitute a crime. If the common law rule is applicable the prosecutrix was fourteen years of age on November 3, 1941, the day before the anniversary of her birth, so that the crime charged could not have been committed against her person under the provisions of section 288 of the Penal Code.