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"Is there a bed in the next room?" and I said, 'No,' and he looked and there was, and he said, Won't you go in and lie down on the bed?' and I said, 'No, I have to finish reading this book.' He says, 'You have got time to finish that some other time.' So we lied down on the bed, and he opened his trousers and lifted up my dress, and he asked me if I liked to do this, and I says I didn't know, and he says: 'Well, you ought to know; you might as well say yes.'

The witness then stated that defendant had sexual intercourse with her. She testified to acts of improper familiarity with her before this time and afterwards, and that two or three days later he had sexual intercourse with her again on the sleeping porch of the house under circumstances described by her and while her little brother aged eight and little sister aged four were playing in the dooryard. She testified that on this occasion defendant came to the house unexpectedly and found her alone; that he accomplished his object and "tiptoed across the porch" and quietly slipped away without the children seeing him.

make note of any fact connecting the particular circumstances testified to with any particular date. That the prosecutrix failed to remember the date is not surprising. The evidence showed that she offered no resistance and yielded without reluctance; that she did not mention the affair until her pregnancy made concealment of her condition impossible. Considering all the circumstances, and that defendant admitted being alone with her in the house, under the circumstances described, which at no other time is it pretended again occurred, we find ourselves compelled to hold that the time and place were fixed with sufficient certainty, or to hold that this particular character of crime cannot be made out unless the day and hour are selected and definitely shown by direct evidence. We cannot subject the trial courts to so rigid and inflexible a rule as is contended for by defendant. Furthermore, inasmuch as he admitted being present on the only occasion when all these circumstances concurred, an alibi, obviously, As to the circumstances surrounding the could not avail him. His situation would first act there was corroboration, but as to have been no more favorable to him and no defendant's connection with the act itself different had the day been fixed and he had there was no corroboration. The witness was admitted being there on that day. We must delivered of a child on January 27, 1918, hold that the motion was properly denied. which established the fact that some person 2. And this brings us to the only ground had sexual intercourse with the prosecutrix, for reversal open to him, aside from certain but did not tend to prove that defendant was further alleged errors of law later to be no- the father of the child. It is now urged that ticed, namely: That the evidence was in- the story told by the prosecuting witness sufficient to justify the verdict. This conten- is inherently improbable; that she first extion is based upon the alleged inherent im- plained her condition by stating that two probability of the testimony of the prosecut- hunters came along and one of them forced ing witness. Her testimony was: That she her to submit to his embraces, but it appearwas at the time doing the housework of her ed that at the time she made this statement home. Her mother was dead, and her sister, she finally under some pressure said that dea year younger than herself, was away. Her fendant was the cause of her situation; and, father was at defendant's place, about half particularly, it is urged that the child apa mile distant. Her brother Joe was work-peared to be a full nine months' child as tesing in the hayfield with defendant helping tified by Dr. Fairchild, the physician who him. One of the young children was at school, and the other was with its father. At noon her brother, Joe, and defendant came to the house. Joe had occasion to go back to the field, which he did on his bicycle. That the witness was on the back porch near an opening to the cellar, and defendant attempted to have sexual intercourse with her there, but for reasons he explained and be cause Joe was liable to return any moment, which in fact he did in a few minutes, defendant desisted. That while at dinner defendant complained of having a headache and spoke of some chores to be done at his home and that he had promised to go over and hitch his horse to a buggy for his wife. That Joe told him to lie down on the couch and he would take his wheel and run over and do his chores and hitch up the horses. That defendant lay down on the couch, and Joe went to defendant's house, and witness took a story book, went into the room where defendant was lying, and commenced read

officiated at the accouchment, and hence defendant could not be the father, since the testimony did not fix the first act at an earlier date than about May 20th, or 252 days before the birth of the child, whereas the birth of a normal child usually occurs after from 270 to 280 days from the date of conception, and that the evidence was that this child was normal in all respects. The defendant did not testify in his own behalf.

[2] It is well settled by the decisions of the Supreme and appellate courts of this state that a conviction may be had upon the uncorroborated testimony of the prosecuting witness, although she may have made contradictory statements as to the person who had committed the criminal act and had otherwise made contradictory statements. Where there are no corroborating circumstances, in cases of this kind, the reviewing court should scrutinize with discriminating care the testimony given by the prosecuting witness. The defendant may be so placed as

[5, 6] 4. It is claimed that the court erred in making statements as to the age of the prosecutrix and in declaring that it would make no difference if half a dozen men had had illicit intercourse with her. During the course of a colloquy in which the court, the district attorney, and defendant's attorney took part, the court incidentally referred to the prosecutrix as of tender years; and in connection with the evidence relating to fixing the date of the act of sexual intercourse the court remarked that "the witness is not overly bright." The undisputed fact was that the prosecutrix was 14 years of age. That the court referred to her as of "tender years" could not have prejudiced defendant's case. The remark that "the witness is not overly bright" was made in connection with a ruling as to relaxing the rule somewhat which forbids leading questions. In the connection used, we do not think the remark was prejudicial. Furthermore, the court immediately directed the jury to pay no attention to the remarks and, in its charge, instructed the jury that they were "not to consider in any manner any remark made by either counsel or by the court, concerning the admissibility of testimony or the striking out of testimony improperly admitted."

may have no means of disproving her testi- | sires were alike admissible. Logically, this mony except by convincing the jury that she seems to be sound reasoning. has committed downright perjury-a last resort not easy of accomplishment. Our Supreme Court, in some of the earlier cases, cited by appellant, has ordered reversals on the ground that the testimony of the prosecuting witness on its face convinced the court that the jury in believing it must have been governed by passion and prejudice. We are unable to discover in the testimony given in the present case by this young girl improbabilities inherent or otherwise. Viewing carefully all the facts and circumstances as narrated by her, as we have done, we can find no motive for falsely accusing defendant; the two families were close neighbors and frequently interchanged visits and were on the most friendly terms; this girl was not shown to have had intimate or dubious relations with any young men. So far as appears, she was a simple, unsophisticated girl of 14 years (the court spoke of her as "of tender years and not overly bright") who apparently did not comprehend the consequences or full meaning of the act to which she seems willingly to have consented. The friendly relations existing between these families should have restrained defendant from bringing this shame and disgrace upon this young girl. So far from the story related by Augusta Schwall being inherently false, it presents to our minds an instance, quite too common, of the power by which some men's sexual passions obtain complete mastery of their conscience and in seeking their gratification no heed is given to the consequences accruing to their victims.

[3] The expert testimony as to the normal period of gestation was not such as conclusively showed that the birth date of the prosecutrix's child was wholly inconsistent with the fact that conception may have taken place at the time fixed by the child's mother as the time when she had sexual intercourse with defendant. The testimony was sufficient to leave with the jury the determination of the fact involved in the point made by defendant. We think the verdict had sufficient support.

[4] 3. Error is claimed in permitting evidence to be introduced of familiarity "not actually amounting to acts of sexual intercourse," defendant contending that any acts short of this are inadmissible. Defendant relies upon People v. Castro, 133 Cal. 12, 65 Pac. 13, citing People v. Soto, 11 Cal. App. 431, 105 Pac. 420, to the effect that no case has extended the rule in the Castro Case. The district attorney cited People v. Koller, 142 Cal. 623, 76 Pac. 500. The view of the question taken by the learned trial judge was that, it being conceded that prior and subsequent acts of sexual intercourse were admissible as showing an adulterous disposition, any lascivious or other acts of familiari

[7] The objection made by the defendant to the questions put to the prosecutrix, “Did you ever have an act of sexual intercourse with any one else than Fred Wademan?" and, "Who is the father of that child?" was sustained by the court. Defendant seems to assume that this ruling precluded him from making proof that some other person was the father. He made no such offer during the trial. The ruling was not so intended and had no such effect. The court held that it was not a part of plaintiff's case and was not at that point admissible. Whether right or wrong in the ruling, defendant was not prejudiced by it.

[8] 5. A reversal is demanded because of error in giving people's instruction No. 8, as

follows:

"You are instructed that while the crime is alleged, in the information, to have occurred on or about the 20th day of May, 1917, it is not necessary that the prosecution prove that the crime was actually committed by the defendant sufficient to sustain the charge if you be conprecisely on the 20th day of May, 1917. It is vinced beyond a reasonable doubt, from the evidence in the case, that the crime alleged was mediately preceding the filing of the informacommitted at any time within three years imtion, which filing was had and done on the 27th day of December, 1917."

It is conteaded that in every substantial part of this instruction it is similar to the one considered as error in People v. Elgar, 171 Pac. 697, and which was held not to be cured by a subsequent instruction. In the Elgar Case there were two acts of rape committed, one about May 6, and the other about

the first act as the one relied on for a con- other acts of sexual intercourse or other lewd viction. After giving the instruction sub- acts were committed by the defendant with Austantially as in the present case, that it is gusta Schwall, you may consider them for the purpose of determining whether or not he comsufficient to show that the crime was committed the particular act of sexual intercourse mitted at any time within three years immediately preceding the filing of the information, the court gave an instruction to the jury that

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[9] The Attorney General does not defend the instruction. His claim is that instruction No. 9. must be read with No. 8, and when so read "it is apparent that the instruction No. 8 is not improper in the case, but only has the effect of showing that the offense of rape stands alive and subject to prosecution for a period of three years after the date of the alleged act."

Instruction No. 9 is as follows:

"You are instructed that in the charge of rape, other acts of sexual intercourse between the accused and the female whom he is accused of having raped occurring both before and after the principal act charged may be introduced in evidence as tending to sustain the act of sexual intercourse charged; that is, the particular act upon which the defendant is being tried. In other words, acts of sexual intercourse between the parties may be shown by the prosecution to prove that the parties are lewdly inclined and that the barriers of modesty have been broken down with reference to each other but not primarily to prove habitual or continuous criminality or other offenses.

"But where several acts of sexual intercourse are claimed, by the prosecution, to have occurred between the defendant and a particular girl under the age of consent, the prosecution is required, at the commencement of the trial, to select some one particular act of sexual intercourse upon which it relies to make good the allegation of the information.

"In the case before us the prosecution has selected one particular act of sexual intercourse which it claims occurred between the defendant and Augusta Schwall. This one particular act is designated and described by the prosecution to be the first act of sexual intercourse which it is alleged was actually accomplished by the defendant with Augusta Schwall. It is further described by the prosecution to be the act which it is alleged was committed during the noon hour at the home of Augusta Schwall, at the time her father was alleged to have been at the home of the defendant for the purpose of pumping water with a gasoline engine and while her brother Joe Schwall went to the home of the defendant during said noon hour for the purpose of hitching up the defendant's horse and attending to his hogs.

"Such being the case, before you can find the defendant guilty you must find that he accomplished an act of sexual intercourse with Augusta Schwall on the particular occasion which the prosecution has selected. If you find that

with Augusta Schwall which the prosecution has selected. But you can consider such acts for no other purpose."

The Attorney General says:

"A consideration of the last 20 lines of said instruction No. 9 will show that a verdict of guilty could only be had by the jury by refer election stated) on the particular occasion ence to the offense charged (made specific by which the prosecution has selected.""

There was no evidence of sexual intercourse except upon the two occasions in May, the acts being within five days of each other. The jury were very clearly told that the act relied on must be and was selected by the prosecution, and that the act thus selected must be established to their satisfaction beyond a reasonable doubt or they must acquit the defendant, and that evidence of other acts was admissible only for the specific purpose explained by the court. sidered together, as they should be and doubtless were by the jury, no person of ordinary intelligence could fail to understand that conviction must rest entirely, if at all, upon evidence directed to the particular act selected by the prosecution. We cannot doubt that the jury so understood the instructions.

When con

6. Error of the court is assigned for refus

ing to give an instruction to the jury not to be influenced by the presence of the child, citing People v. Stanley, 33 Cal. App. 624, 629, 166 Pac. 596; and in declining to instruct the jury to disregard the question asked of the prosecutrix by the district attorney, "Who is the father of that child?" citing People v. Soto, 11 Cal. App. 436, 105 Pac. 420.

[10] It appeared that while the prosecutrix was on the witness stand her baby was brought into court from an adjoining room. She testified that it was her child and was born on January 27, 1918. In the course of the examination the district attorney put to her the question, "Who is that father of that child?" Defendant objected to the question and also asked the court to instruct the jury to disregard the question as misconduct of the district attorney in asking it. The court seems to have regarded the matter as rebuttal and not open to the prosecution, unless evidence was introduced tending to show that some man or men other than defendant had had sexual relations with the prosecutrix; that, should the evidence make it admissible for the prosecution to put the question, it would be allowed. The request made by defendant for an instruction to the jury at that time included a request that the jury be instructed "not to be influenced or their sympathies captivated" by the presence of the child; that the child could be exhibited for the sole purpose of proving the corpus delicti, and not to prove that the defendant was its father. The court refused the request, stating that some of the matters he was willing to instruct upon as requested, but that others

of them would be error. There was no circumstance connected with the presence of the child having any tendency to show that defendant was its father and that the child was there for any purpose other than to show that it was the child of the prosecutrix. There was no evidence in the case offered by defendant that had any tendency to show that some person other than defendant might have been or was the child's father. We do not think its presence in court alone made it necessary for the court to instruct the jury as to the limit to which inferences might be indulged from such presence.

[11] 7. Error is assigned in giving for the plaintiff instruction No. 11 reading as fol

lows:

"You are instructed that if you find from the evidence in this case beyond a reasonable doubt that the defendant, Fred Wademan, committed the act of sexual intercourse with the said Augusta Schwall, on the occasion selected by the prosecution at the beginning of the trial, and you further find that said act of sexual intercourse was committed within three years prior to the filing of the information, and that the said Augusta Schwall was a female person under the age of 18 years at the time the act was committed, and you further find that the said Augusta Schwall was not the wife of the said Fred Wademan at the time the act was committed, then you must find the defendant guilty of the crime of rape as charged in the infor

mation."

The first error pointed out is that the

instruction omits a definite statement of the venue of the crime, and that when the court undertakes to recite the facts contained in the information it must include every elemeat necessary to sustain a conviction. The uncontroverted testimony was that the act was committed in Yolo county, and, while it may be true that the jury were at liberty to find this testimony to be untrue, we think the instruction by its reference to the act as selected by the prosecution sufficiently pointed to the place where the offense was

committed.

of age away from the jury," continues the brief, "certainly works a very substantial injury to a defendant, for it deprives him of an independent finding of the jury which might subject him only to a misdemeanor punishment."

The uncontradicted testimony of John Schwall, father of the prosecutrix, Augusta, and her testimony also, was that she was born March 27, 1903, and her age therefore was 14 years and 2 months at the time the offense was committed. The verdict of the jury was:

"We, the jury impaneled to try the aboveentitled cause, find the defendant guilty of rape as charged in the information."

If the information had charged that the rape was committed upon a female under the age of 18, not giving her age, or if it had charged that she was over the age of 16 years and under the age of 18 years, it might be said that the information was laid under this section and that it was thus made applicable. But where the information distinctly charges that the female was under the age of 16 and the uncontroverted evidence so established the fact to be and the jury by their verdict found the defendant guilty as charged in the information, the amended section 264 has no application. If in such a case the question of age was controverted and the evidence conflicting, there would seem to be some force in the contention that the defendant would be entitled to a finding by the jury as to the fact in order that he might enjoy the right to have the jury determine whether he must suffer as being guilty of a misdemeanor or the greater penalty attached to a felony. As we understand section 264, it is only where "the female is over the age of 16 years and under the age of 18 years" that the jury is called upon to “determine by their verdict whether the punishmeat shall be imprisonment in the county jail or in the state prison." We think the verdict was sufficient without being support

by a separate or other finding as to the age of the prosecutrix.

[12] The point most seriously urged is that the court instructed the jury in effected "that, if they should find that the girl was under the age of 18 years, they must find that she was of the age stated in the information, to wit, 14 years," whereas, under section 261

of the Penal Code, as amended in 1913, "ju

[13] 8. Error is claimed in refusing defendant's instructions Nos. 21, 28, 29, 32, and 33, These instructions are not set out in

No. 21 "should

appellant's brief and the only comment made
have been given," citing a case; "No. 28
upon them respectively is:
should have been given under the rule laid
down in" a case cited; "No. 29 was a prop-

ries are now required not only to find whether or not the prosecutrix was under the age of 18 years, but necessarily they must find whether or not 'the female is over the age of 16 years'"; that, whenever the offense is charged under subdivision 1 of section 261 er instruction to be given as laid down in” of the Penal Code, there must be a finding, a case cited; "No. 32 should have been givwhich the jury alone can make, as to whether or not "the female is over the age of 16 years, and under the age of 18 years."

en," citing cases; "No. 33 was directly within the rule laid down in" case cited. We do not think we are called upon to test the sufThe Legislature by the amendment of sec- ficiency of appellant's assignments of error tion 264, lodged a discretion with the jury thus made. We are entitled to know why to determine whether the defendant is guilty he believes a particular instruction is vioof a felony or a misdemeanor where, in case lative of some rule or principle of law found of rape, the female is over the age of 16 in a decided case. Assuming, as we may in years and under the age of 18 years. Such, the absence of comment by appellant, that however, being the case, "to take the question the purport of these instructions is correctly

stated by the Attorney General, there would, should not shield him from the rule that has appear to be no error in refusing to give been so frequently laid down."

them.

[14] 9. Misconduct of the district attorney in his closing argument to the jury is assigned as error. One of the instances relied on is the reference made by the district attorney to the generally well-known Slaughter Case. Stating who Slaughter was and that he was found guilty of rape, the district attorney said: "Is there any reason to believe this man is a better man than the Rev. Madison Slaughter?" The record shows the objection, but appellant made no motion | to strike out or request that the remarks be disregarded.

[15] The only other alleged error under this head called to our attention is contained in the following remarks of the district attorney:

We do not think appellant's attorney quite justified in referring to the district attorney's remarks as cunningly intended to remind the jury that the defendant had not testified. But it is with the probable effect on the jury the reference to the matter was likely to have which we are to consider. The defendant is not required to testify in a criminal case, and the statute is intended to prevent the prosecuting officer from taking advantage of the defendant by reason of his failure or refusal to testify. The reviewing courts have very properly held it to be prejudicial error for the district attorney to call the attention of the jury to the fact that the defendant has not testified in his own behalf and to comment on the fact as warranting the inference that his silence is evi"Now, gentlemen of the jury, I had faith when dence of guilt. The district attorney should I took you on the jury, I still have faith in not be permitted by indirection to accomyou, and I think there is only one thing you plish what the law frowns upon when done can do to do justice in this case, and that is directly. And where his address to the jury to render a verdict of guilty. Gentlemen of the jury, I believe I am conscientious in say- shows on its face that the district attorney ing it, I am not saying it because I want to intended to invite attention to the failure of win this case, because I would not be guilty of the defendant to take the witness stand and sending an innocent man to prison, but as sure as there is a God in heaven, that man is guilty. deny the charge and had the apparent effect The officers in this case have done all we can to emphasize such fact and suggest an indo. The rest remains with you. If you want ference of guilt, such conduct should reto do justice in the case, do justice by that ceive quick condemnation. We do not think, girl, do justice by that child that is brought into the world by the defendant, do justice by however, it can fairly be claimed that the that girl's family, and do justice to society in district attorney intended to invite attengeneral, there is only one thing for you to do, tion to the fact of defendant's not having and that is to render a verdict of guilty in this case, notwithstanding that man's position in the testified or to suggest any inference deduccommunity. I would not ask you to do some-ible from the fact. In speaking of the testhing I would not do myself; but, after I have heard the evidence in the case, there is only one conclusion I have arrived at. If you won't find this man guilty, don't ever sit in a rape case, because that is all the testimony you may get in a case of this kind. You will never find the crime committed with people standing about. You have got to believe the story of the girl in a rape case or you will never render a conviction. The girl's testimony is undisputed. If her story was contradicted, you might be in doubt; but the defense has left the story stand where it is unimpeached and undisputed, and, when you go into the jury room to consider whether the girl was telling the truth, ask yourself this question. 'Is her testimony contradicted by a single witness in this case? and I say no. Under those circumstances, gentlemen of the jury, you have got to believe that girl; you cannot do anything else. Her story is true, it rings true, and she is telling the truth. I am not going to argue the case further. I am going to submit it to you for your judgment. Gentlemen of the jury, I have all confidence in you that you will do justice in this case and render a verdict of guilty."

The point emphasized is that the district attorney violated the provisions of section 1323 of the Penal Code "by indirection," citing People v. Morris, 3 Cal. App. 1, 84 Pac. 463; People v. Tyler, 36 Cal. 522; People v. McGungill, 41 Cal. 429; People v. Sanders, 114 Cal. 216, 46 Pac. 153. Referring to the district attorney's remarks, appellant says: "The fact that he cunningly conveyed this thought to the jury, without making a direct reference to the defendant's omission to testify,

timony of the prosecutrix in the way he did, he had a right to claim that it was uncontradicted and that no witness had been called to impeach her testimony. The only reference to the matter came from the follow

ing instruction given at defendant's request:

"The court instructs the jury that, while the statute of this state provides that a person charged with crime may testify in his own behalf, he is under no obligation to do so, and the statute expressly declares that his neglect to testify shall not create any presumption against him. The jury should decide the case with reference alone to testimony actually introduced before them, and without reference to what might, or might not, have been proved, if other persons had testified."

It is impossible to withhold from the jury the fact itself. The most that can be done for the defendant's protection is to instruct the jury as was done and to restrain the district attorney from using the fact to defendmarks of the district attorney were so far ant's prejudice. We cannot say that the reprejudicial as to justify a reversal.

committed error in denying the motion for [16] 10. Appellant urges that the court motion that one of the jurors, a woman, “exnew trial, it appearing at the hearing of the amined the prosecutrix's child during a recess of the court," thereby receiving evidence out of court. It appeared from affidavits in support of the motion that a member of the

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