Sacramento daily record-union., 1888-11-03
GEORGE LANG DISCHARGED.
Judge Var. Fleet Finds the Evidence No,
Sufficient.

several days ago to secure the re-
lease of George Lang, held TO answer in the
Police Court on two chsrges of attempt to
commit rape. The matter was argued for
the people by District Attorney Bruner,
and by G. 7, Jones and Z. C. Hart for the
petitioner. Judge Van Fleet took the mat
ter under advisement and yesterday ren.
dered his decision, dischargiug the prisoner.
The result was not unexpected either by
the attorneys or those who listened to the
testimony IL the Police Court, Following
is the full text of the decision:
State otCsliiornia county OF Sacramento. In
the Superior Court, Department Two. Ex parte
George +. Lang.
Application for discharge on habeas corpus.
Petitioner is in custody Of the Sheriff of Sacra-
mento county under two several commitments
issued by the Police Judge of the city of Sacra-
mento sitting as a committing magistrate; the
first bas ed upon an order holding petitioner ia
answer 10 the Superior Court upon q charge of
assault with intent TO commit rape upon one
Cora Mains and the second hold ng him for
like assault committed upon one Theresa
Rankin.
1t is contended By petitioner. first, that these
orders were made without reasonable or proba-
ble cause, in that the evidence taken at his pre-
hmlnary examination does not tend 10 establish
his guilt upon either charge, or warrant his
commitment hereunder: and second that as
TO the order holding him for assault up0u the
person OF said Theresa Rankin the magistrate
had 10 Jurisdiction to make said order Tor the
reason that petitioner was never charged with
said otfense before said magistrate and was not
arralsned or examined thereon. Considering
the last contention first
II appears that petitioner was regularly
charged before the Judge of said Police Court
with assault with intent to commit rape upon
the person o. one Cora Mains and had an eX-
animation upon said charge; that during said
examination evidence was inf identally elected
from witnesses tending, in the opinion OF the
Magistrate, to establish that petitioner had been
guilty OF like assault upon the person of one
Theresa Rankin. At the conclusion of the eX-
animation the Magistrate made an order hold
ing the petitioner TO answer on the charge of as
saulting said Cora Mains and at the same time
made another aud similar order holding peti-
toner for a like assault upon said Theresa Ran
kin. That this last order was made without pc
titioner having been confronted with any COM
plaint charging him with assault upon said
Theresa, or any arraignment OF, or notice to pc
titioner that he was TO be examined on said las
named charge and without in fact, any exam
ination OF petitioner being had thereon. It is
manifest that in making this second order of
commi ment the Magistrate acted under a mis-
apprehension of his powers and without uris-
dicti0n.
The Penal Code requires that when a person
j. accused OF crime a complaint or information
u ust be lodged against him charging him with
the oiensa: Q. c. See. S06 SID: that upon being
brought before the Court he must be informed
Of the specific charge against him have the
right To counsel and be given Il reasonable time
il which to prepare for his examination Secs
e5s s59, $50, 2. c. The complaint or informa-
ton Is the foundation upon which the subse-
qucnt proceedings are based and is REQUIRED to
set forth the fact which is relied upon as consti-
tutlng the OienSe charged against defendant
taat lie may be informed what he has to meet
II IS jurisdctlOnal prerequisite to legal pre-
Dmlnary examination of one charged with
absoluiely void.
1t was suggested that the committing magis-
trdte in making this order conceived that he
was acting under Section SD of the Penal Code
but, If so, the me All & OF that section was mis-
interpreted. II is not contemplated by Section
S12 that defendant charged with an offensc
committed upon one person may upon ex-
ANIMATION on that charge be held for an en-
tirely distinct otiense committed against an
other individual which the evidence NAV in
cidentally tend to disclose. This would be 10
entirely ignore the undoubted right of the de.
llendant TO be informed of the charge against
him and to have q separate examination upon
such charge if he so desires
1t is obvious that the term public ofrense."
as used IN Section S72 refers To an offense grow
ing out OF or comprehenGed within the facts
charged in the complaint under which the ac-
cused is being examined and of which he has
note and opportunity to r. flute. As for instance
If a IS charged with the murder of T. he NAV
upon an eXamiE alion Of that charge be legally
held to answer for man daughter for the unlaw-
tul killing OF i, but, being 50 charged and ex-
amlnt for the murder of B. he cannot be
legally committed upon such examination for
the murder or manslaughter of BIS wife. not.
withstandng the evidence may disclose him
guilty of that fact.
The Magistrate having exceeded his juristlic-
ton in holding petitioner for an assault upon
Theresa Rankin, it follows that the proceeding
was absolutely void. Being void and not merely
erroneous 1t may be inquired into ON habeas
corpus.
SO far, then, as this second order is concerned.
II IS not necessary TO consider the question of
probable cause.
Upon the charge of assault ucon the prosecr-
trlX, Cora Mains. ! have with eat care and
patience examined and considered the testi-
mony taken at the preliminary examination,
and fail to find anything therein legally tend.
ing to show the guilt of the defendant The
evidence OF the proseeutrix is not of q character
TO invite Its recital. If true, it tends ONLY to
snow that the prosecutrix a girl of the age of IL
years, went voluntarily on several occasions. in
company with another girl, to the sls seping-room
OF the petitioner; that on the occasion of these
visits the petitioner was guilty of committing
many lewd and lascivious acts toward the
proSecutrix, and made efforts apparently to
nave sexual intercourse with her, but without
success that these efforts were not resisted by
the prosecutrix, but on the contrary, it appears
that all his acts were with her consent The
prosecutriX herself testifes that petitioner used
no violence or threats toward her at anv fine
and she repeated her visits to his room ON sev-
eral occasions after his first impro1er advances
Nhlle such acts with girl of the prosecutrix's
ags may be well calculated to cause IL feeling OF
indignant protest through the community and
shock the moral sense beyond expression they
lack the essential element of rape Whsteyer
might be he legal aspect OF such acts If c1ro.
nltled with girl under tie age of 10 years and
therefore Incompetent to consent, il appears
that this prosecutriX was over the age when She
could legally consent thereto. and such consent
takes rom the petitioners acts, however repra-
henslbie morally, any criminal charac er
Force Is necessary element of the offanse of
rape as attempted to be shown here. (Pensl
CODE, sec .6l) Nj are his acts affected by the
fact that he may have used blandishmerlts and
arti1ice to induce the prosecutrix to consent.
Ihe employment of arts and devices with
ont violence, by which the moral nature Of n
female Is corrupted, so that shc is 10 longer able
10 resist the temptation to yield to sexual desire
Is not sufficient to constitute rape People VS.
Royal. 81 Cal. g.. If defendant were con
NlcteG upen the evidence of such acls as are
relied on here, the verdict would be set aside.
People VS.. Hamilton, 46 Cal. $40; People VS.
Bro wn, AZ Cal. 447.
In ordering petitioners Discharge dae,n
but just to him, in view of the grave character
of the charge and the fact that he has adj
mlttedly heretofore borne good character in
The community, to suggest that the evidences "a
to his laSciyious conduct with the prosecut-ix is
not OF q character to inspire fuIl confidence in
It's truth. II rests upon the testimony OF the
and the witness Theresa Rankin,
anu their statements in many respects are not
only improbable IN themselves, but sIe incon-
slstent with many physical facts and circum-
lances appearing III evidence while it appears
from their own statements that they were not
lnacquainted with evil ways and associations
In prosecutions of this kind the Courts have
always scrutinized the evidence with jealous
care and il my judgment the general character
Of the evidence here, having in view the cir
cumstances under which the prosecutrix was
induced 10 lay this charge againstthe petitioner
gives rise to just suspicion of the good faith
with which the prosecution was Instituted and
aptiy points the language of our Supreme Court
In the case OF People VS.. Benson {6 Cal. 22). The
defendant had betn convicted of rape on a girl
OF Is years of age, and In reversing the judg-
ment because of the insutficiency of the evil
dence il is said There is no class of prosecu-
afford so ample an opportuni for free pay of
malice and private vengeance. In such cases
The accused is almost defenseless and Courts in
view OF the facility with which charges of this
character may be invented and maintsined
have been strict in laying down the rule which |
should govern the jury in their findings"