People v. Moore

McFarland, J. Appellant was convicted of the crime against nature, and was sentenced to suffer the very severe penalty of imprisonment in the state prison for the term of forty-one years. He appeals from the judgment.

The appellant had no counsel in the court below; con[510]sequently there is no statement or bill of exceptions before us, and, of course, no evidence. Afterwards counsel took an appeal for appellant, and is compelled to rely upon the judgment-roll, or what is called in section 1207 of the Penal Code a “ record of the action.” This includes only the indictment or information, a copy of the minutes of the plea or demurrer, a copy of the minutes of the trial, the instructions given or refused, and a copy of the judgment. The offense charged in this case is in its nature coarse and detestable; but it is an offense easily charged and difficult to disprove; it affords great facility for a false accusation, made for the purpose of revenge and injury; and usually its proof depends mainly upon the testimony of an accomplice. These considerations, and the very severe penalty imposed, induce us to look closely into the only record which appellant’s counsel on the appeal could bring here.

We are disposed to think that the objections to the sufficiency of the information are not good. The averment that the alleged crime was committed “in and upon the person of Carl Kohler ” sufficiently states that it was committed with a human being, as distinguished from an animal. We think, also, that the jurisdiction of the case in Kern county sufficiently appears from the face of the information. The crime is alleged to have been committed on a car; and whether or not the information would be good under section 783 of the Penal Code, upon the theory that the jurisdiction was in any county through which the car passed in the course of its trip, we think that it sufficiently avers the offense to have been committed in Kern county. Appellant objects to the instructions of the court upon the subject of reasonable doubt; but considering them all together, they are hot erroneous.

We think,- however, that under the circumstances of this particular case the judgment should be reversed for the failure of the court to inform the appellant of his rights as provided in section 1066 of the Penal Code. [511]