
    [Crim. No. 703.
    First Appellate District.
    August 28, 1917.]
    In the Matter of the Application of WILLIAM KOSTRIKEN for a Writ of Habeas Corpus.
    Habeas Corpus—Commitment for Rape—Insufficiency of Complaint and Evidence.—Where upon the hearing for a writ of Imbeas corpus the return shows that the petitioner was charged with and held to answer for the crime of rape upon evidence which in part shows that at the time of the alleged commission of the offense the prosecutrix, a minor, under the age of fifteen years, was the wife of the petitioner, and that the complaint filed with the committing magistrate does not allege that the prosecutrix was not the wife of the petitioner at the time of the commission of the alleged rape, the petitioner is entitled to his discharge, as neither the complaint nor the evidence shows the commission of an offense.
    
      APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the First Appellate District.
    The facts are stated in the opinion of the court.
    Ambrose Gherini, and J. Edwin Lyons, for Petitioner.
    Chas. M. Fiekert, District Attorney, A. L. O’Grady, Deputy District Attorney, and John S. Harloe, for Respondents.
   THE COURT.

Upon this hearing for a writ of habeas corpus the return to the writ previously issued shows that the petitioner was charged with and held to answer for the crime of rape upon evidence which in part shows that at the time of the alleged commission of the offense the prosecutrix, a minor under the age of fifteen years, was the wife of the petitioner; the return further shows that the complaint filed with the committing magistrate does not allege that the prosecutrix was not the wife of the petitioner at the time of the commission of the alleged rape. • It follows that neither the complaint nor the evidence show the commission of an offense against the penal laws of the state; therefore the writ is granted and the petitioner ordered discharged from custody.  