People v. Petrille

JENNINGS, J. The information against the defendant filed by the district attorney of Fresno County contained four counts. In the first count the defendant was charged with having committed the offense of statutory rape; in the second count the defendant was charged with having committed the crime of incest with his daughter Elsie Petrille on March 24, 1934; in the third count he was charged with having committed the crime of lewd and lascivious conduct with and upon the aforesaid daughter on the aforesaid date; in the fourth count he was charged with having committed the crime of incest with another daughter, Josephine Petrille, in the month of October, 1931.

On arraignment the defendant pleaded that he was not guilty of the offenses charged against him and the cause was set for trial. At the time appointed for the trial and prior to the introduction of any evidence in the case the district attorney moved that the action be dismissed as to the first and third counts. The motion was granted and the case proceeded to trial on the allegations contained in the second and fourth counts and the defendant’s plea of not guilty thereto. Upon the conclusion of the trial the jury returned a verdict finding the defendant guilty of the offense charged in the second count of the information and not guilty of the offense charged in the fourth count. Defendant’s motion for a new trial was denied as was also his application for probation and the trial court pronounced judgment upon him whereby it was ordered that as punishment for the offense of which he was convicted he should be confined in the state prison at San Quentin. From the judgment thus pronounced and from the court’s order denying his motion for a new trial the defendant has prosecuted this appeal.

In support of his appeal the defendant contends that the trial court committed reversible error in permitting his wife to testify without his consent and over his express objection thereto. The action of the trial court in so doing is said to be in direct contravention of section 1322 of the Penal Code wherein it is provided that neither husband nor wife is a competent witness for or against the other in a criminal action to which either or both are parties, except with the consent of both, or in cases of criminal violence upon one by the other or upon the child or children of one [283]by the other. It is urged that criminal violence is not an element of the crime of incest in accordance with the opinion rendered in People v. Stratton, 141 Cal. 604 [75 Pac. 166], and that therefore the wife was not a competent witness against her husband and the admission of her testimony was erroneous and fatally prejudicial to the defendant’s right to a fair trial.