People v. Gump

NOURSE, P. J.

The defendant was tried before a jury upon an information in three separate counts charging incest, rape, and a violation of the juvenile court law. He was found guilty on all three counts and sentenced to Folsom prison on the first and second and given a suspended county jail sentence on the third. He appeals from the judgment and from the order denying a new trial.

His first ground is the inherent improbability of the evidence of the prosecutrix. She had been living for many years with her father, her brother and her grandmother at' the latter’s home. She testified to an act of intercourse on August 31, 1935. She was then sixteen years old. A few days later she left her grandmother’s home and went to work at a “speakeasy” operated by Mr. and Mrs. Esparza. The defendant, who was the father of the prosecutrix, objected • to her association with these parties, and a fight followed, after which Mrs. Esparza persuaded the prosecutrix to make the charge to the authorities. This occurred in February, 1936, and this was the first complaint which the girl made to anyone about the alleged occurrence in August, 1935. When called as a witness she testified that these relations with her father began when she was ten years old and continued regularly until

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she left the grandmother’s home. On cross-examination she explained that she had not told her grandmother because she was afraid she would not believe her.

In his argument attacking the sufficiency of the evidence the appellant emphasizes the failure of the prosecutrix to make timely complaint of the alleged attack and also the complete lack of any corroborating evidence. Counsel frankly concedes that neither factor is essential to a conviction of the crime charged but he urges that they are persuasive evidence of the improbability of the story of the prosecutrix. There is much force in the argument that it is highly improbable that these relations could have existed for a period of six years without mention to anyone, and grave suspicion is cast upon the story when it is shown that it was only told after trouble had arisen between father and daughter over her relations with others. But these suspicions are not sufficient to support appellant’s plea that the judgment should be set aside. The jury believed the testimony of the prosecutrix, and the trial judge was satisfied to let the verdict stand. We cannot say that the testimony is so inherently improbable that there is no evidence to support the verdict.