People v. Hall

PULLEN, P. J.

Defendant was accused and convicted of the crime of incest. Upon this appeal from the judgment and from the order denying the motion for a new trial appellant contends that the evidence does not support the verdict, that the court and district attorney were guilty of misconduct, and that the motion for a new trial should have been granted.

It is not necessarjr to recite in detail the evidence submitted to the jury. In brief, however, it appears that ap

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pellant and his family, consisting of his wife and two children, lived near Diamond Springs in El Dorado County. The complaining witness, a daughter about eighteen years of age, was living at the home of friends in Placerville, where she was attending school, returning home usually about every other week-end. The complaining witness testified that on a Sunday, either February 21st, or February 28th, she was at her parents’ home; her mother and younger sister had gone to visit an aunt who lived not far away, and the brother was mining in a nearby stream. During the afternoon while she was alone and studying in the living room of the home, appellant entered, seized her, stifled her outcries by tying a dish towel across her mouth, tied her to the bed and there committed the act complained of. The witness testified that similar acts had been perpetrated upon her by appellant since she was about ten years of age.

It must be admitted that the recital of the method of attack was not altogether convincing, not only to this court, but the trial court seemed to have had some doubt as to the truth of the facts concerning the details. However, the trial court and the jury seem to have had no doubt as to the commission of the act itself. It is more probable that the cooperation of the complaining witness was obtained through fear of the father, and the somewhat improbable recital of the tying and gagging was added by the witness as a justification for her course of conduct in not making an outcry or in not reporting the occurrence immediately after its perpetration.

Appellant, of course, denied the charge but by his equivocations and attempted explanation of his conduct at the time of the first alleged attack, which he claims he made under the guise of explaining to his daughter the necessity of being able to protect herself against an assault, is almost an admission of guilt on his part. If this occurrence actually took place with his daughter when she was then approximately ten years of age, and having then overcome her physical and moral resistance, the continuation of his course of conduct with her would undoubtedly have become more easy with the passage of time, and it may well have .been that at the time here in question the witness did not strenuously resist his approach.