The record-union., 1891-04-01
[Filed March 21st.l

|
from are reversed, and the cause re-
manded for new trial.
Filled March 2lst.1
| Habeas corpus.
Police Court, San Francisco.
For petitioner, Benz. 3. Haskell.
For people, District Attorney VIM. S.
Barnes.
IN BANK
EP PARTE EsTRADo.-No. 20,S19
The petitioner is held in the custody of
the Chief Of Police of the City and County
OF San Francisco, under a commitment
| which reciteS an order of the Police
Judge holding her to answer "on charge
of felony, to-wit: enticing minor away
for the purpose of prostitution, commit
ted as follows: Said Cora Estrada did, in
the City and County Of San Francisco, on
the 18th day of February, 1891, willfully,
unlawfully and feloniously, take away a
certain female under the age of eighteen
/ years"-naming her-''of the age of sew
enteen years, from her father, for the pur-
| pose of prostitution
1t is claimed that the imprisonment OF
the petitioner is unlawful for two reas-
| onS:
FErSt-Because the order recited in the
commitment does not show that the
father of the girl from whom she was
taken had the legal care of her person;
and.
,Second-Because the evidence adduced
at the examination does not show any
reasonable or probable cause for holding
that the petitioner is guilty of the offense
charged.
The first ground is not alleged in the
petition upon which the writ was issued
| but IS taken by way of objection to the
return, and rests upon counsel's con-
! struction Of Section 267 of the Penal Code,
which reads as follows:
! Section 267. Every person who takes
| away any female under the age OF
! eighteen years from her father, mother,
guardian, or other person having the legal
| charge of her person, without their con-
! sent, for the purpose of prostitution. is
! punishable by Imprisonment in the State
| prison not exceeding five years and a
/ fine not exceeding one thousand dollars. -
According to the construction of this
section contended for, it is not sufficient
to allege and prove that girl has been
taken away from her father, mother or
| guardian; it must also be alleged that the
| father, mother or guardian had the legal
charge of her person.
| But father, mother or guardian neces-
! Sarlly has the legal charge of the person
Of a minor child or ward, and the true
construction of the statute only requires
averment and proof of legal custody
when the child is taken from some other
! person.
Moreover, defect in the commitment
| IN describing the offense is immaterial if
/ 1t IS sufficiently described in the order
! indorsed on the depositions, lex parte
kell, 80 Cal. 300, and cases cited, and it is
not alleged in this case, either in the pc
| luton or by way OF traverse to the return,
/ that a sufficient order was not so indorsed.
The second ground relied on is, if pos
! s1ble, more barren of merit than the first.
we note IN passing, that the petition, so
| far as this ground is concerned, was
| wholly insufficient to call for the issu-
/ ance of the writ under the decision in Elk
parte Walpole Isl Cal. 5S4. But the writ
was issued, and on the return enough of
the dispositions was read to show that the
| petitioner induced a girl of seventeen
years to go to house of prostitution for
| the ostenslble purpose of domestic
| service. She did not disclose to the girl,
or her father, what the character of the
place was. 1t is contended that this does
not show that the purpose Of taking the
| girl to the house was to make her pros
/ titute. But clearly, such evidence would
| sustain verdict against the petitioner
1t IS not to be supposed that a procuress
| Will furnish direct and positive proof of
| her guilt by openly proposing life of
| shame to girl that she is seeking to lead
astray; on the contrary, every motive of
policy Will conspire to induce her to pur-
| sue course of indirection in carving
out her design, and she is to be Judged
not by what she says so much as by what
she does. people VS.. Marshall, 80 Cal.
! 1861
If person is to be presumed to intend
the natural consequences of his acts, it is
certainly fair to presume that when a
woman takes young girl, without the
knowledge or consent of her parents, and
puts her to work as domestic servant in
a house of prostitution, she intends to
4 haN Tn feal- 1,
Is very certain, that amidst such sur
roundings she cannot long preserve either
! reputation or modeSty.
And court should look with extreme
suspicion upon such an excuse as the pc
tltioner offers for her conduct. To treat
| 1t with any favor would make the nefari-
Gus traffic Of which she is accused easv
and safe-when it ought to be made diff
cult and dangerous. An example which
would enforce the lesson that domestic
servants for such places are TO be sought
outside of the ranks of immature girls
would be extremely salutary.
The prisoner is remanded,
BEATTY, G. J.
We concur:
GARoUTTE, J.,
DEHAVEN, J.,
MCFARLAND, j.,
SHARPSTEIN, J.,
HARRISON, j.
Titled at San Francisco, March "A, 1891. !
Appeal from the Superior Court of
Santa Clara County-Francis Z. Spencer,
Judge.
For appellant, DIorehouse 6S Tuttle.
For respondents, c. A. Johnson, d. w.
Harrington and S. G.. Tompkins.
DEPARTMENT ONE.
THE PEOPLE OF THE STATE
OF CALIFoRNIA,
Respondent, No % 7a7
VS.. W. @o,tof'
HANFoRD IL. GORDON,
Appellant.
This is an action charging the defend
ant with an assault with deadly weapon
upon the person of one Charles II. Potter,
with intent to kill and murder said
| Potter. The defendant was convicted of
an assault with deadly weapon, and
fined s., 800, and in default of the payment
thereof 1t was ordered that he be iInpris-
oned in the County Jail of Santa Clara
County at the rate of one day for each 81 of
said fine, and not exceeding in the aggre-
| gate 625 days. This appeal is from the
judgment and the order denying defend
ants motion for a new trial.
Among the grounds relied upon by de-
fendants counsel to support this appeal,
/ it is claimed the court misdirected the
| Jury as TO the law of the case
The court gave the jury the following
/ instructions:
upon trial for an assault to commit
murder, the assault and the intent being
proved, the burden of proving circum-
stances of mitigation, justification or ex-
cuse therefor, deyolves upon the accused.
unless the proof upon the part of the
prosecution tends to show that the crime
committed only amounted to an assault
with deadly weapon, with intent to in
! flict upon the person of the prosecuting
witness great bodily injury, or of SIM
| pie assault, Or that the defendant was jus
| titled or excused.r