People v. Carrell

CHIPMAN, P. J.

Defendant was convicted of a felony under section 288a of the Penal Code, and was sentenced to imprisonment at San Quentin for the period of seven years. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

The charging part of the information is as follows: “Did willfully, unlawfully and feloniously commit the acts technically known as

fellatio

upon the person of one Ethel Carrell, a human being, by force and violence and against the will of the said Ethel Carrell, contrary,” etc.

Section 288a of the Penal Code was passed in 1915 and is as follows: “The acts technically known as

fellatio

and

cunnilingus

are hereby declared to be felonies and any person convicted of the commission of either thereof shall be punished by imprisonment in the state prison for not more than fifteen years.” .

[794]

Defendant demurred to the information on the ground that it “does not contain a statement of the acts constituting the offense, in ordinary and concise language, and in a manner to enable a person of common understanding to know what is intended”; that the information is not direct and certain “as it regards the crime charged therein”; and that the facts stated do not constitute a public offense. The demurrer was overruled. The motion for a new trial was on the grounds that the court misdirected the jury in that the offense defined by the court “is not included in the word

fellatio

as defined in its technical use”; also, on the ground that the prosecuting witness was an accomplice, and her testimony was not corroborated as required by section 1111 of the Penal Code. Upon the denial ■ of defendant’s motion for a new trial, he moved in arrest of judgment on the foregoing grounds, which motion was also denied. Neither the statute nor the information defines what is meant by the term