People v. Avena

CHIPMAN, P. J.

On information filed by the district attorney of Sacramento County defendant was convicted of the

[501]

crime of rape upon his twelve year old daughter and was sentenced to fifty years’ imprisonment at Folsom. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

Defendant invites attention to the following three points which he deems sufficient to call for a new trial: 1. That the verdict is contrary to the evidence; 2. Errors of law committed by the trial court; 3. Misconduct of the deputy district attorney.

The facts testified to by the prosecuting witness and her sister were amply sufficient to justify the verdict. The point urged is that both these witnesses admitted that the testimony they gave at the trial was directly contrary to that given at the preliminary examination and that their testimony given at the trial was false. The explanation given by them for this change in their testimony was that they had been told that if their father was convicted he would be sent to the penitentiary and they would be sent" to the detention home or the reform school. There was evidence tending to show that some such representations were made to them, before testifying at the preliminary examination, as inducement to shield their father from the consequences of the unnatural act with which he was charged. It was for the jury to decide whether these contradictory statements, under all the circumstances and facts placed before the jury, so far impeached these witnesses as to render their testimony at the trial improbable or unbelievable.

(People

v.

Preston,

19 Cal. App. 685, [127 Pac. 660].) There is nothing in the story told by the prosecuting witness, corroborated as it was by her sister, which is inherently improbable or would justify the reviewing court in interfering with the verdict of the jury. It is not without some significance that the learned judge who sat at the trial not only denied the motion for a new trial, but that the sentence imposed amounted practically to life imprisonment, for defendant, forty-nine years of age, was given a fifty years’ term of imprisonment.