People v. Denton

GRAIL, P. J.

Defendant was convicted under three counts of rape, one count of kidnaping, two counts of kidnaping for

[675]

the purpose of robbery, one count of grand theft, one count of assault, two counts of assault with a deadly weapon, one count of robbery, and he admitted two prior convictions. Sentence was pronounced, and the appeal is from the judgments and the order denying a motion for a new trial.

The first and primary contention of the defendant is that the evidence is insufficient to support the verdict as to each count and he takes the counts up in detail. His argument in this regard being that the defendant was not properly identified. There is positive and direct identification of the defendant as to each count. The defendant nowhere claims that there is no such evidence of identification, but confines his argument solely to the amount of weight to be given to such testimony, characterizing it as being in the opinion of counsel improbable and unlikely. It is sufficient for us to say that there is substantial evidence identifying the defendant as to each count. This court will not concern itself with its weight.

(People

v.

Young,

136 Cal. App. 699, 703 [29 Pac. (2d) 440];

People

v.

McGill,

10 Cal. App. (2d) 155, 160 [51 Pac. (2d) 433] ;

People

v.

Grider,

10 Cal. App. (2d) 287, 288 [51 Pac. (2d) 881];

People

v.

Smith, ante,

p. 209 [70 Pac. (2d) 677].)

After the People had rested their ease the defendant called Clara Lowe as his own witness and asked her a question regarding a statement made to her mother upon the question of identification of defendant, which question he stated was solely by way of her impeachment. The court sustained an objection thereto. The defendant contends that the court erred in sustaining such objection. In the case in chief the witness upon her direct examination on behalf of the People identified defendant as her assailant and she was cross-examined at length upon that subject. In the cross-examination, however, appellant failed completely to question the witness concerning whether or not she was able to identify defendant other than by his voice. Afterwards when the defendant used her as his own witness he sought to develop the fact that at the time she had reported this attack to her mother she had told her mother that she could not identify the defendant other than by his voice. Under this contention defendant cites a large number of cases to the effect that in eases of rape the defendant should be allowed a wide latitude