People v. Oliver

FINCH, P. J.

The defendant was convicted of the crime of rape accomplished with a girl of the age of fourteen years. He prosecutes this appeal from the judgment and the order denying his motion for a new trial.

At the time of the alleged offense the defendant was a married man but separated from his wife, from whom he had theretofore secured an interlocutory decree of divorce. He resided, apparently alone, in a house near the residence of his mother. The prosecutrix had lived with her parents for several months in the same neighborhood in which defendant resided and was a friend of defendant’s sister, both girls being of about the same age. The prosecutrix testified

[694]

that the defendant committed the act charged, her resistance being formal only, if any; that prior to that time he had done things which were not gentlemanly “in different ways; fooled with me . . . with his hand.” The defendant denied the crime charged but did not deny the acts of familiarity further than to say that his relations with the prosecutrix had been “proper.” According to the defendant’s testimony the girl was the pursuer and he the pursued. He testified that he met her nearly every evening by her appointment; that he frequently kissed her; that she asked him to marry her and he replied: “I will talk with you after I get my final decree.” As is usual in such cases, there was no direct testimony as to the commission of the act other than that of the prosecutrix and the defendant. It is not contended, however, that the evidence is insufficient to sustain the charge.

On cross-examination the prosecutrix was asked if she had ever had sexual intercourse with another young man, naming Mm. Over the people’s objection she was permitted to answer in the negative. Thereafter, on motion of the district attorney, the answer was stricken out by the court. The ruling was not erroneous.

(People

v.

Harlan,

133 Cal. 16 [65 Pac. 9];

People

v.

Kilfoil,