People v. Lewis

CHIPMAN, P. J.

Defendant was accused by information, tried by a jury and convicted of the crime of rape committed on April 17, 1911, upon a child under the age of sixteen. He appeals from the judgment of conviction and from the order denying his motion for a new trial. The verdict was, “Guilty of rape as charged. We recommend him to the mercy of the court.” He was sentenced to imprisonment for ten years.

The defendant being unable to employ counsel, the court appointed Mr. Ben Berry as his attorney, who conducted the defense at the trial with zeal and ability, and is prosecuting this appeal with apparent belief in the innocence of his client.

The prosecutrix is defendant’s step-child and at the time of the alleged offense was of the age of thirteen years. Defendant was then and had long been afflicted with weak and inflamed eyes, nearly blind, and deprived of one leg and was at times under treatment by a physician, although the evidence did not show lack of copulative capacity. He was living in Stockton with his mother, Mrs. Sarah Lewis, and his married sister, Mrs. Turner, and three younger brothers and sisters, before his marriage with the mother of the prosecutrix, Mrs. Emily Hamilton, then a widow. The mother and her child had lived in Lodi, and in the early part of 1909 moved to Stockton and took up their residence with Mrs. Lewis, defendant’s mother. Both Mrs. Lewis and Mrs. Hamilton were working women, sometimes going out to families and at other times doing washing at home for patrons. The prosecutrix went to public school with the other children. In September, 1909, defendant married Mrs. Hamilton while living in the family of his mother, Mrs. Sarah Lewis, and not long after moved to a house at a place called “the homestead,” in another part of the city of Stockton. This was a house of three rooms, one of which was a kitchen, where there was also a bed. It was at this house and on .this kitchen bed that the particular act is alleged to have occurred. Part of the time,

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prior to April 17, 1911, a Mrs. Johnson lived with the family at the homestead. The child, Angie, attended public school not far distant. Both Mrs. Lewis, defendant’s wife, and Mrs. Johnson, while living with the family, worked out generally, but not always, on alternate days, one remaining at home to do the work. Mrs. Johnson was not living with them in April, 1911. The story told by the child involves the conduct of defendant while living at his mother’s house, both before and after his marriage, as also in the house at the homestead. The verdict has no foundation other than the testimony of the prosecutrix, which is not corroborated by any circumstance or fact, except it be the result of the examination made by witness, Dr. Miller, and by him only to the extent of appearances, not necessary to mention, known by physicians to indicate sexual intercourse with someone. This fact, as corroborating evidence pointing to defendant, lost its force by admitted conduct of the prosecutrix with other persons. Counsel urge with earnestness that the verdict, based upon the uncorroborated testimony of his accuser and upon a narrative of facts in itself unbelievable, was the result of passion and prejudice and was without substantial justification. The prosecutrix was permitted, without objection, to lay bare her life both on the examination in chief and on her cross-examination, at the time she lived in Lodi, then but ten or eleven years old, until the date of the particular act, in 1911, selected by the prosecuting attorney. The record shows that it was with great difficulty the witness was brought to the point of telling her story and then only after much urging by the prosecuting attorney and intimations by the court that she must answer the questions or render herself liable to punishment. Apparently her hesitation was not from a sense of shame or delicacy of feeling or failure to understand the questions or from fear, and yet the substantial facts finally came out only in answer to leading questions in which the prosecuting attorney himself narrated the circumstances in their sequence and the witness answered yes or no as the question seemed to require. According to the testimony of the witness given at the preliminary, defendant’s intercourse with her commenced six or seven months before his marriage to her mother and was kept up twice a week, on Mondays and Saturdays; that before that time he had conducted himself with her in a lascivious manner: that after his