The record-union., 1891-03-02
SUPREME COURT DECISIONS.

For petitioner, J. A. Harris.
For respondent, William S. Barnes,
District Attorney.
IN BANK. O.
Elk PARTE MoRRIsoN.-No. &c, 500.
This is q proceeding upon hddeas
corpus. 1t appears from the return to the
writ issued that +. P. Morrison, the per-
son in whose behalf the writ was issued,
is detained by the Superintendent of the
House of Correction of the City and
County of San Francisco, under and by
virtue of a judgment of the Police Court
of said city and county, convicting the
said Morrison of the crime of yagrancy,
and adjudging that he be imprisoned
therefor in said House of Correction for
the period Of ninety days. The judgment
was rendered February 5, 1891. The
Judgment appears to be regular on its
face, and it does not appear therefrom
under which clause of Section 647 of the
Penal Code said Morrison was convicted
1t was argued that the first clause of
this section is unconstitutional, but we
cannot assume, for the purpose of pass
ing on this question, or OF discharging
tle prisoner, that this is the particular
clause under which the conviction was
had. The complaint, upon which the
Judgment, was rendered is not in this
record.
We cannot say from the record before
us that the judgment is void.
The said Morrison is relnanded and the
writ discharged. DE HAVEN, J.
We concur:
BEATTY, c. J.,
MCFARLAND, j.,
GAEoUTTE, j,
PATTERSON, j.,
HARRISON, j.
SHARPsTEiN, j.,
[Filed February q, 1871
Appeal from Superior Court, San Fran
| cisco-T. II. Rearden, Judge.
For appellants, c. III. Jackson and
Henry G. McPike
For respondent, james r. Smith.
DEPARTMENT ONE.
BOYS, Respondent,
ys. NJ 70 o-o
SHAWHAN ET AIS, ~ io'"o''
Appellants.
BY THE COURT.
The plaintiff brought this action against
w. ID. Shawhan, Mary Shawhan and
John r. Shawhan, and alleged in his
amended complaint that on the 22d day
of December, 1886, ''the said defendants,
and each Of then,' We're indebted to his
assignor in the sum of S40S 30 for certain
merchandise '.sold and delivered to said
| defendants at their special instance and
request" The defendants answered the
complaint denying all of its allegations.
The court, having tried the cause without
Il jury, made the following finding of
| fact: THAT all the allegations and aver
ments in the plaintiff IS amended COM
| plaint are true;0 and as conclusion oflaw
| found, that said plaintiff is entitled to
| Judgment against said defendants, w. d.
Shawhan and Mary Shawhan, and each
! of them" for the sum claimed in the COM
plant. Judgment was thereupon en-
tered against the defendants, w. d.
! Shawhan and Mary Shawhan. only, and
from this judgment they have appealed.
1t was error in the court below to
render judgment against them upon the
facts found by it without at the same time
rendering judgment against their co-de-
fendant, John f. Shawhan, and for this
error the judgment is reversed, and the
cause remanded for a new trial.
[Iiled February %, 1891
Appeal from the Superior Court of
Santa Barbara County-B. r. Williams,
Judge.
For appellant, Carroll Cook and J. E.
Foulds.
For respondent, Walter b. Cope, Dis
| trict Attorney, and George II. Johnson,
late Attorney General.
DEPARTMENT ONE.
PEOPLE, Respondent,
FOWLER, Appellant.
The information charges that the de-
fendant on the 18th day of June, 1889,
| did williully, unlawiully and feloni-
ously take away one Rosa Keep, then and
! there being an unmarried female under
the age of Is years, to wit, of the age of
II years, from and out of the custody of
! Maria Keep, her mother, without the con-
sent, and against the Will OF her said
mother, for the purpose of prostitution"
stSection 267 Of the Penal Code provides:
every person who takes away any fe-
male under the age of is years from her
father, NEITHER guardian, or other person
having the legal charge of her person,
without their consent, for the purpose Of
prostitution, is punishable etc.
The information follows the language
of the statute and is sufficient. 1t alleges
all the acts and facts which the Logis-
lature has said shall constitute the Of
tense and is direct and certain, both as to
the party charged, and the particular Of
Tense charged. These are the tests of suf-
ticiency in matters OF averment.
1t was not necessary to aliege that the
mother had the legal charge" of the per-
son of the girl One who takes minor
female from the actual custody of her
mother for the purpose of prostitution
should not be heard to say that as be-
tween the mother and the father the latter
may have had the better right to the GUS
tody Of the child, and may have given
his consent. So long as the child was in
inc aclual c,tslOuy OF tne nlOtnGf Ine laJ-
ter was bound by every principle of law,
| humanity, and parental care, to protect
her person. and had the legal charge OF
| her person within the meaning of the
statute. Q3ishop on Statutory Crimes,
| Section $751;
1t is claimed that the information is de-
fective because it is not alleged that the
defendant knew the girl was under
age. We think that under this statute
the people are not bound to allege or
prove that the defendant know the girl
was under Is years OF age. 1.-The gist Of
the offense is the taking away of the child
against the will of theperson having law
tul charge of her, for the purpose of
| prostitution;' and one who does so acts
at his peril, and cannot defend himself
on plea of ignorance as to the age of the
child. Bishop, S. c., Section 632.) The
law was intended to protect the family
against the assaults of those who traffic in
women for houses of prostitution-to save
the members thereof from sorrow and
! disgrace; and the court ought to be care
ful not to construe the statute so as to de-
| prive it of any element of effectiveness in
this regard. people VS.. Demouset, II
Cal. 6l3)
Appellant urges that "penal statutes are
to be construed strictly in those parts
which are against defendants, but liber-
ally in those which are in their favorn
Such is always the contention made, and
too often followed; but it is no longer the
rule. In former days, when the lawmaller
acted upon the idea that penal legislation
was sn important factor in shaping the
morals ofthe people, many acts trivial in