Matter of Application of Drennan (1917) · DecisionDepot

Matter of Application of Drennan

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Mar 9, 1917 No. Crim. No. 395.Published

Before: THE COURT. —

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Holding. The court denied the petition for a writ of habeas corpus because the petitioner's judgment of conviction was not void on its face, and alleged trial errors must be addressed through an appeal rather than a collateral attack.

Issues

Whether a judgment of conviction for assault to commit rape is void on its face when the underlying information charged statutory rape.
Whether alleged trial errors regarding the admissibility of evidence can be reviewed in a habeas corpus proceeding.

Disposition. Denied

Quotations verified verbatim against the opinion

“The remedy for the correction of errors occurring in the course of the trial of a case, either criminal or civil, lies wholly in an appeal, unless the judgment is absolutely void upon its face”

“The judgment of conviction against the petitioner is not void upon its face, and the error of which he complains cannot be reviewed in a proceeding of this character.”

Synopsis

APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Third Appellate District.

The facts are stated in the opinion of the court.

THE COURT.

The petition for the writ must be denied. Inasmuch as the petitioner is confined in the penitentiary, is not represented by counsel, but has,

in propria persona,

made this application and is not an attorney, it is deemed proper to state briefly the ground of our refusal to grant the application or to issue the writ.

The petitioner was convicted of and is now undergoing punishment for the crime of an assault to commit the crime of rape. He claims that the judgment of conviction was and is void because the crime of which he was found guilty was not within the crime charged in the information. The point is that he was therein charged with statutory rape or carnally knowing a female incapable under the law of consenting to such an act, in which ease force is not a necessary element and which, where committed even with the actual consent of the female, is, under the law, a crime, and that, therefore, an assault is not a necessary ingredient of the crime. He cites and relies on the case of

People

Akens, 25

Cal. App. 373, [143 Pac. 795],

We considered this precise question when the petitioner’s case was before this court on appeal.

(People

Drennan, 25

Cal. App. 645, [145 Pac. 106].) The case was not argued before this court either orally or by briefs, but it was submitted on the record. We, nevertheless, examined the record, although, under the rule, we would have been authorized and justified in dismissing the appeal without any consideration of the record. In the opinion therein filed, however, we stated that there' was disclosed by the record evidence tending to show that the female child upon whom the crime was alleged to have been committed objected to and protested against the conduct of the defendant, and from this testimony we said the jury were warranted in finding that there was an assault, and that the verdict as returned was, therefore, sustainable, notwithstanding that the prosecutrix was under the age of consent. In this connection, we cited the case of

People

Matter of Application of Drennan

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Synopsis

THE COURT.

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