People v. Gardner

California Supreme Court Apr 11, 1893 No. 20943Published

Before: Garotjtte

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Holding. The court held that the trial court erred in admitting a stenographer's testimony regarding a witness's prior preliminary examination testimony because it violated the defendant's right to be confronted by witnesses, as the testimony did not qualify as a valid deposition under the Penal Code.

Issues

Whether the statute provides a valid penalty for an attempt to commit rape.
Whether the testimony of a stenographer regarding a witness's prior testimony at a preliminary examination is admissible when the deposition itself was rejected.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The law thus states that the defendant is entitled to be confronted with the witnesses against him in the presence of the court, with but a single exception, and this case is not that exception.”

Synopsis

Criminal Law—Attempt to Commit Bate—Pleading—Age of Child—Special Demurrer—Abbest of Judgment.—An objection that an information charging the defendant with the crime of an. attempt to commit rape upon a girl “being then and there of the age of eleven years,” does not state facts constituting a public offense, in that it fails to show the child to have been under fourteen years of age, is without merit. Such an objection is too technical to he raised otherwise than by a special demurrer, and is not ground for a motion in arrest of judgment.

Id__Grounds for Arrest of Judgment—Jurisdiction to Affix Penalty.—A motion in arrest of judgment in a criminal prosecution can only he based upon defects appearing upon the face of the information or indictment. An objection that the court has no jurisdiction to affix any penalty or render any judgment, because of the failure of the statute to provide any punishment for the offense charged, cannot be urged upon the hearing of such a motion.

Id. — “Attempt” to Commit Rape Distinguished from “Assault with Intent” —Punishment of Offense.—The offense of an attempt to commit rape differs from the offense of an assault with intent to commit rape, for which provision is made by section 220 of the Penal Code; and the punishment for the former offense is governed by section 664 of the Penal Code, which provides that an attempt to commit an offense, where no provision is made by law for the punishment of such attempt, is punishable by imprisonment for a term not exceeding one half the longest term prescribed upon a conviction of the offense.

Id. — Validity of Sentence.—The crime of rape being punishable by imprisonment for life, or for any specified term of years not less than five, a judgment of imprisonment for five years for an attempt to commit rape is warranted by section 664 of the Penal Code.

In.— Evidence—Testimony of Prosecutrix—Corroboration—Support of Verdict.—Evidence of the prosecuting witness alone, in a criminal prosecution for an attempt to commit rape, is sufficient to sustain a verdict of guilty, and where such evidence convinces the jury and satisfies the law, it need not he corroborated.

In.—Testimony Taken at Preliminary Examination—Defective Certificate — Absence of Witness from State — Stenographer’s Notes Inadmissible._ A defendant in a criminal prosecution has the right to be confronted with the witnesses against him in the presence of the. court, with the single exception that the deposition of a witness properly taken at a preliminary examination may be read upon its being satisfactorily shown to the court at the time of trial that he is dead, or insane, or cannot, after due diligence, be found within the state; and it is error to admit in evidence the testimony of a stenographer as to the evidence given by a witness upon the preliminary examination, after the rejection of the deposition of such witness by reason of a defective certificate, although it was proved that such witness could not he found in the state, due diligence being used.

Garotjtte, J. The defendant was convicted of the crime oí an attempt to commit rape upon a girl under the age of fourteen years, and this appeal is taken from the judgment and order denying a motion for a new trial.

Defendant moved to arrest the judgment upon the grounds: 1. The court had no jurisdiction to affix any penalty or render any judgment for the reason that no punishment was provided for the offense by the statute. 2. The information did not state facts sufficient to constitute a public offense. The objectionable language of the information is “ said Lizzie Cox being then and there of the age of eleven years.” It is now insisted that the information does not show the child to have been under fourteen years of age. Appellant’s position has no merit, and the objection to the information, if it is objectionable, is entirely too technichal to be reached otherwise than by special demurrer. As to the remaining ground relied upon to arrest the judgment, it was not a matter that could be urged upon the hearing of such a motion. A motion of that character can only be based upon defects appearing' upon the face of the information or indictment. (Penal Code, sec. 1185; People v. Fair, 43 Cal. 147; People v. McCarty, 48 Cal. 559.) But the question is before us upon appeal from the judgment, and we proceed to its consideration.

The defendant was sentenced to imprisonment in the state prison for the term of five years, and it is now asserted that no penalty is prescribed by statute for a conviction of the offense here charged. It will be noticed that the defendant was convicted of an attempt to commit rape, and not of the offense of an assault with intent to commit rape, for which provision is made by section 220 of the Penal Code. There is a distinction between these offenses, and the facts required to prove an attempt [129]are not necessarily sufficient to prove an assault with intent. We had occasion to consider at some length this question in People v. Lee Kong, 95 Cal. 666, and leave the matter with a reference to that case and the case of Godfrey v. State, 17 Or. 300. Judgment was pronounced upon this defendant by virtue of section 664 of the Penal Code, which provides, “Any person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows:—

“1. If the offense so attempted is punishable by imprisonment in the state prison for five years or more, or by imprisonment in a county jail, a person guilty of such attempt is punishable by imprisonment in the state prison, or in a county jail, as the case may be, for a term not exceeding one half the longest term of imprisonment prescribed upon a conviction of the offense.”

People v. Gardner

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