People v. Rigby

HALL, J.

Defendant was charged with the crime of rape, alleged to have been committed upon a girl eleven years of age. Upon his trial the jury found him guilty of assault with intent to commit rape. From the judgment and order denying his motion for a new trial he has appealed.

But two points are urged as grounds for reversal.

1. The court permitted the district attorney, over the objection of defendant, to re-examine the prosecutrix upon matters about which she had been examined in chief.

Whether or not the court should permit such a re-examination is largely a matter of discretion, and the action of the court in so doing will not be disturbed unless a clear case of abuse of discretion is shown.

(Rea

v.

Wood,

105 Cal. 314, [38 Pac. 899];

People

v.

McNamara,

94 Cal. 509, [29 Pac. 953].)

In the case at bar no such abuse of discretion is shown. On the contrary, the record, in our judgment, discloses a very proper case for the exercise of such discretion. Upon her direct examination the girl had testified that defendant had inserted his private parts in her private parts, but on cross-examination had made statements inconsistent therewith. Her testimony was thus left in a very unsatisfactory condition upon this point. The re-examination was directed to this matter, and seems to have been very fairly conducted by the district attorney, who co'ncluded by calling her attention to the inconsistent answers she had made to defendant’s attorney and asking for. an explanation. The verdict returned shows that the jury disregarded her statement that defendant penetrated her private parts.

2. It is next urged that the evidence is insufficient to support the verdict. Upon this point the counsel for defendant has reviewed the testimony of the girl, and pointed out what he claims to be inconsistencies therein, as well as contradictions between her testimony and that of other witnesses who gave testimony as to what occurred between defendant and the girl upon the occasion in question. Doubtless a similar

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