Matter of Application of Kantrowitz

CONREY, P. J.

Petitioner is in the custody of the sheriff of Los Angeles County under a commitment issued pursuant to an order holding him to answer upon a charge of rape. In his behalf it is contended that the -imprisonment of the petitioner is illegal in this that the person upon whom said rape is alleged to have been committed appears from all of the testimony to be the wife of said Abraham Kantrowitz; also that he has been committed to custody without reasonable

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or probable cause in that the only testimony directly connecting him with the alleged offense is the testimony of his wife,-it being claimed that she is not a competent witness.

By section 261 of the Penal Code rape is defined to be an act of sexual intercourse accomplished with a female not the wife of the perpetrator and under certain circumstances specified in said section. Section 31 of the same code defines principals in the commission of a crime in terms which include not only those who directly commit a felony or misdemeanor, but those who aid or abet in its commission. Section 971 of the Penal Code,- abrogates the distinction formerly existing between an accessory before the fact and a principal, and between principals in the first and second degree in cases of felony.

In accordance with the foregoing statutory provisions, it is necessary in -any indictment or information charging a defendant with the crime of rape that he shall be accused as a principal The argument here presented on behalf of petitioner is that, since under the section defining the crime of rape it is manifest that a husband is incapable of personally committing that crime against his own wife, therefore he cannot be guilty of that crime under any circumstances. Under similar statutory conditions, the contrary rule is established by the authorities of several other states. In

People

v.

Chapman,

62 Mich. 280 [4 Am. St. Rep. 857, 28 N. W. 896], it appeared that the defendant, being desirous of obtaining evidence by which'to secure a divorce from his wife, employed. another man to have intercourse with his wife, either with or without her consent, and the husband with witnesses concealed himself in an adjoining room. The wife resisted and the rape was committed. Under the statutes of Michigan it was provided that all persons aiding, assisting, or abetting in the commission of a crime were liable to indictment, trial, and punishment as principals. The supreme court cf Michigan sustained the lower court’s instruction to the jury that if they found facts substantially as above stated the defendant was guilty of rape. To like effect see: