People v. Stoll

CRAIG, J.

The appellant was accused by information of the crime of rape and incest. During the trial, on motion of the district attorney, the charge of rape was dismissed. The defendant was found guilty of the crime of incest. This appeal is taken from the judgment and the order denying his motion for a new trial.

The only points argued by the appellant in his brief are that the court erred in refusing to give an instruction to the jury that the complaining witness was an accomplice, and that it was error to admit evidence showing her pregnancy.

It appears that the prosecutrix is the daughter of the defendant and was between fourteen -and fifteen years of

[101]

age at the time the act constituting the crime was charged to have been committed. The district attorney on direct examination drew from a physician that the prosecuting witness was pregnant on' the fifth day of October, 1926. On cross-examination this witness testified that the pregnancy was only six to eight weeks advanced. The case was tried on November 17, 1926. The information alleged that the act of incest occurred on or about April 10, 1926. Appellant argues that it is obvious that if the girl was pregnant this cannot be charged to the defendant, and that his motion to strike this evidence should have been granted. That proof of this character is generally competent and relevant and admissible cannot be doubted. Its purpose is to establish the

corpus delicti

of the charge.

(People

v.

Soto,

11 Cal. App. 431 [105 Pac. 420].) In this connection it must be remembered that evidence which tends to prove the

corpus delicti

need not even tend to connect the defendant with the commission of the offense.

(People

v.

Tarbox,