People v. Lopez

[370]

THOMAS, J.

This is an appeal from a judgment on conviction for the crime of rape, committed upon one Clorinda Manriguez, a female person under the age of eighteen years, not being the wife of defendant.

Defendant was sentenced to imprisonment in the state’s prison. There was a motion for new trial, which was denied. Prom the order denying said motion, and the judgment, defendant appeals, and for reversal relies upon the following grounds: “(1) Error occurring at the trial in the admission and rejection of evidence; (2) Error in instructions to the jury; and (3) The improbability of the truth of the testimony of the complaining witness, Clorinda Manriguez.”

On cross-examination the defendant sought' to show, by the testimony of the prosecuting witness given at the preliminary examination of defendant, that she there testified to certain facts .contrary to her testimony on the trial in the superior court in this action; and after the portion of the transcript of the evidence taken at the preliminary examination, which defendant desired to have read, was actually read into the record, and the witness had answered the question, admitting that she had so testified, the district attorney objected on the ground that it did not tend in any way to impeach the witness. This objection was sustained by the court. As already stated, however, the evidence was in. There was no motion to strike. The evidence is still a part of this record. If the' ruling was error, it was without prejudice, because the defendant, so far as this point is concerned, had full opportunity to use the transcript. It was resorted to, too, on other occasions, as disclosed by the record, and for the same purposes. The ultimate question is not: “Is there conflict between the testimony given by the prosecuting witness at the preliminary hearing and that given by her at the trial in the superior court?” but rather, “Do the jury believe the testimony given at the trial, notwithstanding said conflict?” In ’ this case the jury apparently believed the testimony of the little girl.

[1]

It is urged that the court erred in giving the following instruction: “You are further instructed that the evidence of other acts of sexual intercourse between the