Crim. No. 562.
January 13, 1915.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. George H. Cabaniss, Judge.
The facts are stated in the opinion of the court.
Johnson Schuhl, for Appellant.
U.S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.
This is an appeal from a judgment of conviction of the crime of rape.
Two points are made upon the appeal. The first is that the information is fatally defective in the following respect: Instead of averring that the offense was committed upon the person of the minor "not being then and there the wife of said John Souleotes"; its words are "not being then and there with wife of said John Souleotes." There was no demurrer or other objection to the sufficiency in form of the information until after the defendant's conviction. We think the point made for the first time after conviction is without merit. The substitution of the word "with" for "the" was a mere clerical misprision by which the defendant could not have been misled, and to which he should have demurred. Not having done so, he must be held to have waived the objection.
The second point made by the appellant is that the court erred in overruling the defendant's objection to the action of the court in requiring the minor girl who was the subject of the alleged crime to be sworn, and to testify as a witness against the defendant, it appearing to the court in support of the objection, that a marriage ceremony had been performed between the defendant and the said minor after the arrest of the former but before the trial, and that by virtue thereof they were at the time she was called as a witness, husband and wife. It is conceded that the minor girl at the time of her said marriage was of the age of a little over fourteen years, and hence below the age of consent, but it is also shown that the marriage was otherwise regularly solemnized with the consent of the mother of the said minor. The question is, Was such a marriage void, voidable, or valid? If either voidable or valid it would necessarily follow that the trial court erred in compelling the witness to testify.
It seems clear that the marriage is not void, but at most voidable. At common law the marriage of minors below the age of consent was merely voidable. (2 Nelson on Divorce and Separation, secs. 721 to 725, and notes.) The well-established rule of the common law in this regard has not been expressly changed by our code. There are but three kinds of marriage which are expressly declared to be void by the terms of the Civil Code. This is not one of them, but on the contrary the fact that a minor has been married when below the age of consent is made a ground for annulment under the provisions of section 82 of the Civil Code, under the terms of which a strong inference arises that the rule of the common law has not been changed, and that such marriages are merely voidable.
In addition to this, a reading of section 69 of the Civil Code, providing for the consent of the parent or guardian to the marriage of a minor, will show that such consent may be given when the minor girl is below the age of eighteen years, but without further limitation upon the time within which such consent is required in order to validate the marriage of the minor. When sections 69 and 82 of the Civil Code are read together, they would seem to justify the conclusion that the consent of the parent may be given to the marriage of the minor below the age of legal consent, and that when the marriage of such minor is otherwise legally solemnized it is not even a voidable marriage. This being so, it follows necessarily that the court was in error in compelling the wife of the defendant to be a witness against him.
The judgment and order are reversed and the cause remanded for a new trial.