People v. Morgan

ASHBURN, J.

Defendant Draper appeals from a judgment of conviction of the charge of commission of the infamous crime against nature (Pen. Code, § 286) upon his willing codefendant Morgan. The crime was proved by an eye witness and defendant did not testify or offer any defense witnesses.

It is claimed that certain evidence was received in violation of the Cahan rule (44 Cal.2d 434 [282 P.2d 905]). Defendant and Morgan were taken

in flagrante delicto

by the police. They were transported forthwith to the police station, thence to Valley Hospital, where the police requested Dr. Nieremberg to make some slides for them. Neither defendant objected and the doctor took from appellant’s private part certain fecal matter from which he made some smears and slides that were introduced into evidence over defendant’s objection that they were obtained by unlawful search and seizure.

Appellant relies upon

Rochin

v.

California,

342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396], which condemned as brutal and violative of due process the forcible extraction of evidence from the stomach of one under arrest. That case is not apposite for there was nothing resembling brutality here and there was apparent consent to the examination of defendant’s person. Upon the authority of the following cases it must be held that there was neither a violation of defendant’s immunity to self-incrimination nor the making of an unreasonable search and seizure.

(People

v.

Haeussler,

41 Cal.2d 252, 257, 259 [260 P.2d 8];

People

[724]

v.

Woods,

139 Cal.App.2d 515, 525 [293 P.2d 901];