People v. Ciulla

[726]

WASTE, P. J.

The defendant was convicted of a violation of section 207 of the Penal Code, having been charged with the kidnaping of Mary Sehiro, an unmarried Italian woman twenty-two years of age, and the taking and carrying her from the city of San Jose to another portion of the county of Santa Clara, some miles away. The defendant made no defense to the charge upon its merits, but contented himself with standing upon a special plea of once in jeopardy, and a former conviction. He appeals from the judgment of conviction, and from the order denying his motion for new trial. The facts of the case are reviewed in

People

v.

Ciulla, ante,

p. 719, [187 Pac. 46]. The same witnesses were called as in the other case, and repeated the story as there narrated. The defendant then offered1 in evidence in support of his special pleas, the information in the rape case, the minutes of the court’s proceedings in that matter, and the transcript of the evidence of the witnesses, to which evidence the prosecution objected, and was sustained by the court.

[1]

The appellant relies upon the rule of law that where one offense is a necessary element of another, and both were in fact one transaction, a judgment on one is a bar to a judgment upon the other. The prosecution concedes that to be the law.

(People

v.

Defoor,

100 Cal. 150, [34 Pac. 642] ;

People

v.

McDaniels,

137 Cal. 192, [92 Am. St. Rep. 81, 59 L. R. A. 578, 69 Pac. 1006].) But the appellant fails to point out wherein the offenses of rape and! kidnaping are identical. He advances no argument, nor citation of authority, to the effect that one is a necessary element of the other.

[2]