People v. Roderigas

By the Court, Wallace, C. J.: The indictment in this case is founded upon the Act of March 1st, 1872 (Statutes 1871-2, p. 184), which Act, for the purposes of this case, may be considered as identical with section two hundred and sixty-six of the Penal Code. The indictment alleges that the defendant willfully and feloniously, and by false pretenses and fraudulent representations did, on a day therein mentioned, inveigle and [10]entice a certain unmarried female, in the indictment named, under the age of eighteen years, to wit, of the age of sixteen years, from her home in the city of San Jose to the town of Santa Clara, for the purpose of prostitution, and did on said day, at a certain hotel, in the said town of Santa Clara, by and through his false pretenses, and fraudulent representations, procure the said female to have illicit carnal connection with himself, the said defendant, contrary to the form of the statute, etc.

The defendant interposed a demurrer, which, having been sustained by the Court below, and the prisoner discharged, this appeal is prosecuted by the people. The grounds of the demurrer were: that it is not alleged in the indictment that the female therein mentioned was of previous chaste character; that the facts stated do not state a public offense; and “that the complaint does not state facts sufficient to constitute a cause of action.”

1. To entice a female into a house of ill-fame, or elsewhere, for the purposes of prostitution, is not an offense under the two hundred and sixty-sixth section of the Penal Code, nor under the provisions of the Act of March 1st, 1872 (p. 380), unless such female was of previous chaste character. Character in this respect is a fact, and one which must be alleged in the indictment, and established by the prosecution, in order to a conviction of the accused. It need not, however, be proven by evidence given directly upon the point, but may be shown prima facie, by presumption from other facts and circumstances attending the transaction; as, for instance, that the unmarried female—the subject of the injury—was at the time residing with her parents, or other relatives, or her guardian, or in some respectable household, or by proof of other like circumstances consistent with, and the usual concomitants of, chaste female character. But by whatever evidence it may be proven in the case, the fact of previous chaste character must be alleged in the indictment. It is not a presumption of mere law, to b'e indulged against the counter presumption of the innocence of the prisoner on trial upon a charge of crime committed. We are of opinion, therefore, that