People v. Wilson

NOURSE, J.

Defendant was tried and convicted upon an information charging incest upon his daughter—a girl of fifteen years of age. From the judgment following the verdict and from the order denying his motion for a new trial he has appealed on a typewritten record.

On August 31, 1925, the district attorney of Fresno County filed an information against the defendant charging him with the crime of incest upon his daughter alleged to have

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been committed on July 19, 1925. On September 8, 1925, this information was dismissed, without the assignment of any reason therefor, after. the grand jury of the county had indicted defendant on two counts— one charging incest, the other charging rape, but both alleged to constitute different statements of the same act. On September 23, 1925, a new indictment was filed containing six counts. This indictment specified three separate criminal acts alleged to have been committed on or about January 27, 1925; July 11, 1925, and July 16, 1925. Two counts covered different statements of each act—one charging incest and the other rape. The defendant was tried on this indictment and the jury returned a verdict of acquittal. Thereafter a new information was filed against the defendant charging the crime of incest upon his daughter and specifying June 2, 1925, as the time of the commission of the criminal act. It was upon this information that the defendant was convicted.

When the defendant was brought to trial on this last information he entered three separate pleas of former acquittal, once in jeopardy, and not guilty. When, the trial opened he objected to the introduction of any evidence on the part of the state upon the grounds of former acquittal and former jeopardy. This objection was overruled and evidence was taken showing defendant’s guilt of the crime charged beyond a peradventure of a doubt. At the same time the state was permitted to offer evidence of numerous other acts of the same nature running over a period of two and a half or three years, including the acts of which he had been acquitted on the former trial. At the conclusion of the testimony the trial judge instructed the jury to find for the state on both of the special pleas of former acquittal and jeopardy.-

On this appeal four grounds are urged by the appellant for a reversal: 1. That the trial judge should have decided the plea of former acquittal in his favor; 2. That the instruction to the jury to find for the state on the two special pleas was error; 3. That the purported confession of the appellant was inadmissible because obtained by duress; and 4. That the evidence relating to the child born to the prosecutrix was inadmissible.