Abduction. exceeding one thousand dollars, or imprisonment in the County Jail not exceeding one year, or by both. SEC. 2. If two persons, each being married to another, live together in a state of open and notorious cohabitation and adultery, each is guilty of a felony, and is punishable by imprisonment in the State Prison not exceeding five years. SEC. 3. A recorded certificate of marriage, or a certified copy thereof, there being no decree of divorce, proves the marriage of a person for the purposes of this Act. 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 consent, 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. NOTE.-Under the analogous English statute (9 Geo. IV, Chap. XXI, Sec. 20), it has been held not to be necessary that the girl should be taken by force, either actual or constructive, or be taken out of the actual possession of the parent or guardian. It is enough if she be persuaded by the prisoner to leave her home, and the control of the parent continues down to the time of the taking.-Reg. vs. Monktelow, 6 Cox Crim. Cas., p. 143; 22 L. J. M. C., p. 115; s. p., Reg. vs. Kipps, 4 Cox Cr. Cas., p. 167; Reg. vs. Frazer, 8 id., p. 446. So it has been held that the statute was satisfied, though the prisoner and the female quitted the house together in consequence of a proposition which emanated from the girl herself to that effect, and a statement by her to the prisoner that she intended to leave her father's house.-Reg. vs. Biswell, 2 Cox Cr. Cas., p. 279. As to what is to be deemed a person "having the legal charge of her person," in the case of an orphan child over whom no guardian has been appointed, see State vs. Ruhl, 8 Clarke, p. 447; Stats. Kansas, Sec. 324. CHAPTER II ABANDONMENT AND NEGLECT OF CHILDREN. SECTION 270. Omitting to provide child with necessaries. 271. Deserting child. 270. Every parent of any child who willfully omits, without lawful excuse, to perform any duty imposed upon him by law, to furnish necessary food, clothing, shelter, or medical attendance for such child, is guilty of a misdemeanor. six NOTE. Consult the Civil Code for the provisions child. 271. Every parent of any child under the age of Deserting years, and every person to whom any such child has been confided for nurture or education, who deserts such child in any place whatever, with intent wholly to abandon it, is punishable by imprisonment in the State Prison not exceeding seven years, or in a County Jail not exceeding one year. CHAPTER III. ABORTIONS. SECTION 274. Administering drugs, etc., with intent to produce mis carriage. 275. Submitting to an attempt to produce miscarriage. Adminis tering drugs, etc.. with intent produce 274. Every person who provides, supplies, or administers to any pregnant woman, or procures any such woman to take any medicine, drug, or substance, to prod employs any instrument or other means whatever, with intent thereby to procure the miscarriage or uses or riage. Submitting to an produce miscar riage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the State Prison not less than two nor more than five years. NOTE.-Provides.-It is not necessary that the accused should be present when the drug, etc., is taken.Reg. vs. Wilson, 1 Dears. & B., p. 127; Reg. vs. Farrow, 40 Eng. L. and Eq., p. 550; see, also, Reg. vs. Fretwell, 9 Cox Cr. Cases, p. 152. See, also, on this subject generally, People vs. Josselyn, 39 Cal., p. 396. 275. Every woman who solicits of any person any attempt to medicine, drug, or substance whatever, and takes the same, or who submits to any operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the State Prison not less than one nor more than five years. NOTE. The two preceding sections are based upon Stats. 1861, p. 588, Sec. 1. Definition and punishment of child stealing. CHAPTER IV. CHILD STEALING. SECTION 278. Definition and punishment of child stealing. 278. Every person who maliciously, forcibly, or fraudulently takes or entices away any child under the age of twelve years, with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, is punishable by imprisonment in the State Prison not exceeding ten years, or by imprisonment in a County Jail not exceeding one year, and a fine not exceeding five hundred dollars. NOTE.-Stats. 1856, p. 131, Sec. 2. CHAPTER V. BIGAMY, INCEST, AND THE CRIME AGAINST NATURE. SECTION 281. Bigamy defined. 282. Exceptions. 283. Punishment of bigamy. 284. Marrying a husband or wife of another. 285. Incest. 286. Crime against nature. 287. Penetration sufficient to complete the crime. defined. 281. (§ 121.) Every person having a husband or Bigamy wife living, who marries any other person, except in the cases specified in the next section, is guilty of bigamy. NOTE. What is proof of marriage.—What is to be deemed a marriage is left to the operation of the rules of law governing that relation. It is generally understood that a marriage in fact must be proved, and that mere proof of reputation is not enough. In a recent case in the New York Court of Appeals this rule and its limit were carefully considered. In that case the prosecution to establish the fact of a recent marriage, called a witness who testified in substance that the prisoner conducted her to a house where he had taken rooms. The prisoner went out and returned with a person represented to be a minister. He was dressed like one, and had on a white neck-tie. She did not ask his name. The marriage ceremony was then performed by this person. He used the form of marriage of the Protestant Episcopal Church. He inquired of the witness if she would take the prisoner for her husband, and she replied in the affirmative; and the prisoner was asked if he would have her for his wife, and upon his replying affirmatively, the minister declared them man and wife. The person officiating gave her a certificate, using a partly printed form, and filling in the blanks by writing. The certificate was taken by the prisoner, and put in his trunk, and was afterwards seen by a sister of the witness, when the parties were living together as man and wife. This marriage ceremony was followed by cohabitation, which continued for about a year. Held: that even if to constitute a valid marriage, it must be solemnized by a minister or magistrate, the evidence was sufficient prima facie to prove a marriage in fact. A person appeared in the character of a clergyman, performed the ceremony, and it was followed by cohabitation. If the person officiating was not a clergyman, it was for the prisoner to show that fact.-12 Vt., p. 396; 10 East, p. 282. In New York there may be a valid marriage, though not formally solemnized by a clergyman or consent declared before a magistrate. And in this case (People vs. Haynes, 25 N. Y., p. 390), it was held that if parties competent to contract, in the presence of witnesses, agree together to be husband and wife, and afterwards cohabit and recognize each other as such, it is a sufficient marriage to sustain an indictment for bigamy in the event of one of the parties having before that time married another, who is still living, and that it was not an error for the Judge to instruct the jury, that if the prisoner and the witness agreed, in the presence of the man represented to be a minister, to be man and wife, and afterwards lived together as such, that was, in the eye of the law, a sufficient marriage to sustain an indictment for bigamy; the fact that the prisoner had, before that time, married Sarah E. Blair, and she was then living, being admitted; and that it was of no consequence whether the man represented to be a minister was such or not. Marriage in this State is a civil contract, and does not require the intervention of a minister or magistrate to make it legal.-See Civil Code, Sec. 55; Graham vs. Bennett, 2 Cal., p. 503. Whether the prisoner's confession that his first wife was living when he contracted the second marriage is sufficient evidence, see Reg. vs. Flaherty, 2 Carr. & K., p. 782; Laugtry vs. State, 30 Ala., p. 536; Gorman vs. State, 23 Tex., p. 646. It was held in the case of Graham vs. Bennett, 2 Cal., p. 503, that no particular form was necessary to solemnize a marriage; an open avowal of an intention to become, and the assumption of the relative duties of, husband and wife, renders it valid and binding. This is now the law of this State, made so by Sec. 55, Civil Code Cal.; see note thereto where this relation is fully discussed. Under the law as it existed prior to the adoption of the Codes, it was held in the case of People vs. Anderson, 26 Cal., p. 129, that cohabitation as man and wife for a long time, and representing each other as such, was not proof of marriage for crim. con. divorce, indictment for bigamy, and similar cases; but under the Civil Code, Sec. 55, supra, this case would seem to be superseded. See, also, Civil Code, Vol. I, Secs. 55, 63, and notes. |