People v. Murray

ADAMS, P. J.

Defendant was charged with statutory rape of his stepdaughter in violation of section 261 of the Penal Code. The information contained six counts. Defendant was acquitted on four and convicted on two, to wit, counts one and six. Count one charged a commission of the offense

[255]

“on or about” the 10th day of February, 1947, when the stepdaughter was 16 years old; and count six a commission of same “on or about” the 14th day of April, 1948, when the girl was 17 years of age. Sentences were ordered to run concurrently.

On this appeal defendant, appearing as his own counsel, states in his opening brief:

“I was convicted on perjured testimony, uncorroborated testimony, and without one point or piece of visible evidence; further, the district attorney in this case violated all existing laws, rules and regulations governing the conduct, behavior and procedure of any attorney in any court in the State of California, to wit: intimidating the witnesses, by coaching and leading same into testimony that was untrue to his own personal knowledge; further, by conduct unbecoming a district attorney by questioning defendant’s wife, Mrs. Patricia Murray, in regards to immaterial, irrelevant, unnecessary and personal marital affairs above and beyond any scope or bearing whatsoever upon the alleged charges with the sole intent of prejudicing the jury.”

Without enlarging upon these generalities appellant attacks the testimony of the prosecutrix that as a result of intercourse on February 10, 1947, she became pregnant, as being inconsistent with her admission that she gave birth to a full-time baby on October 11, 1947. We do not attach particular significance to this asserted inconsistency, since the girl testified that she had sex relations with defendant before February 10, 1947, and she could have been mistaken as to when conception occurred. Whether it was or was not the result of intercourse on February 10th or thereabouts was for the jury to determine; and earlier conception would not prove that defendant did not commit the offense charged to have been committed on or about February 10, 1947.

Appellant also relies upon testimony given on his behalf, that the girl’s testimony regarding intercourse on February 10th was false because defendant showed that he was working all day February 10th at a place 33 miles distant from the girl’s home, the asserted place where the offense was committed. Also, regarding the alleged offense on April 14, 1948, he asserts that he was away from the place where the intercourse is claimed to have taken place at 9 o’clock in the morning, as he had left that morning for Eureka on a fishing trip. He asserts, therefore, that the girl’s testimony was impeached, and that she “is a liar.”