Matter of Application of Kantrowitz

Petitioner is in the custody of the sheriff of Los Angeles County under a commitment issued pursuant to an order holding him to answer upon a charge of rape. In his behalf it is contended that the -imprisonment of the petitioner is illegal in this that the person upon whom said rape is alleged to have been committed appears from all of the testimony to be the wife of said Abraham Kantrowitz; also that he has been committed to custody without reasonable or probable cause in that the only testimony directly connecting him with the alleged offense is the testimony of his wife,-it being claimed that she is not a competent witness.

By section 261 of the Penal Code rape is defined to be an act of sexual intercourse accomplished with a female not the wife of the perpetrator and under certain circumstances specified in said section. Section 31 of the same code defines principals in the commission of a crime in terms which include not only those who directly commit a felony or misdemeanor, but those who aid or abet in its commission. Section 971 of the Penal Code,- abrogates the distinction formerly existing between an accessory before the fact and a principal, and between principals in…