People v. Owens

[726]

BARNARD, P. J.

The defendant was charged with forcible rape and, in a second count, with a violation of section 288a of the Penal Code. The jury found him guilty on both counts and the judgment provided that the two sentences should run concurrently. From that judgment this appeal is taken.

With respect to the first count it is contended that the evidence is not sufficient to sustain the verdict. It is argued that the prosecuting witness was subnormal mentally, that her testimony contained conflicting statements, that portions of it are incredible, and that it appears that she was acting under the domination of her father. The record fails to sustain any of these contentions to an extent that would justify a reversal. While the prosecuting witness may not have been a model of intellectual strength her testimony was clear and direct and indicates a considerable degree of intelligence, and the same was corroborated in many respects. It is further argued that the evidence fails to show resistance on her part to the extent and in the degree required by law. The offenses are alleged to have been committed in a, lonely spot in Kem County, in a rolling country some distance from the nearest habitation. The prosecuting witness testified that she resisted to the best of her ability, that she tried to run away and was dragged back, and the court submitted the issue to the jury under proper instructions. In view of all of the circumstances, including the lonely location, we see no good reason for disturbing the jury’s finding on this question of fact.

It is next contended that the court committed error in permitting the father of the prosecuting witness to testify as to a complaint made to him by her the first time she saw him after the offenses were committed. In particular, it is contended that this witness was permitted to give particulars of the complaint made by naming the appellant. The case of

People

v.

Avila,

50 Cal. App. 228 [194 Pac. 768], is relied on in support of this contention. In that case the witness was specifically asked for the name of the person accused by the one making the complaint. In the instant ease, an objection was sustained to a question as to the nature of the complaint made, on the ground that the question was too broad. The question was then asked: ‘‘What was her complaint?”