People v. Johnson

JAMES, J.

Defendant was convicted of the crime of rape and sentenced to be imprisoned in the state prison. He has taken this appeal from the judgment entered against him. Conviction was had after several mistrials. In the presentation of this appeal we have not been aided by briefs, although counsel for the appellant did by oral argument point to several matters in support of the claim that error had been committed in the lower court by reason of which defendant had been deprived of his right to a fair trial. The record is quite voluminous. We have, however, made a very close examination of it in order to determine whether the contentions of appellant are of sufficient merit to warrant a reversal.

At the time the alleged offense was committed, the date being the twenty-seventh day of March, 1919, according to the charge contained in the information, the prosecutrix was a child of the age of fifteen years. She was a daughter of a sister of the wife of the defendant. She went to .live in the household of the defendant about the year 1916. This household at that time consisted of the defendant and his wife, and a minor child of the two latter. The family first lived at Sawtelle; later, in the year 1918, they resided for a time in Tulare County (that being in July of the year referred to), and subsequently took up their residence in the oil fields in Kern County. It was while they were residing in the latter county that the act complained of was alleged to have been committed. So far as the particular act referred to in the information is concerned, there was no testimony concerning the happening other than that given by the child. This girl, the prosecutrix, was shown to have given birth to a child in April of 1919, approximately one month after the commission of the unlawful act charged in the information. The prosecuting attorney, commencing at a time prior to that when the defendant and his family removed to Tulare County, offered evidence which was received by the court showing a continuous course of lascivious conduct by the defendant toward the prosecutrix, and a series of illicit acts, the number or circumstances of which it is unnecessary to detail. These various acts and

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conduct were established by the testimony of the prosecutrix, which was, so far as we can judge from the printed page, given unhesitatingly and with considerable exactness of detail. This testimony was offered under the familiar rule which permits other acts and conduct than the one charged to be shown in a case of this nature, in order that the disposition of a defendant as to the propensity involved may be made apparent. That such testimony is highly dangerous and damaging to a defendant’s case must be conceded, for the reason that a jury, in considering the tender age of such a prosecutrix, is prone, under the influence of prejudice, to allow the aggregate proof of acts other than the one charged to overcome any uncertainty that it may feel as to the sufficiency of the proof as to the particular act referred to in the information. Hence it has often been said in the decisions that trial courts cannot be too careful in cautioning juries against unwittingly allowing their personal bias and prejudice, which is naturally aroused against a defendant in the presence of such an accusation, to cause them to deviate from their sworn duty.