People v. Boardman

[588]

JAMES, J.

Defendant was convicted of the crime of rape. The appeal is from the judgment of imprisonment and from an order made denying a motion for a new trial.

It was charged in the indictment that the act complained of was accomplished with defendant’s daughter, who was, at the time, of the age of fourteen years. To sustain a conviction the people relied upon the testimony of John Board-man, a brother of the defendant, and Hazel Boardman, the daughter referred to. The evidence shows that the defendant was the father of three children, all girls, the youngest being Hazel, the one named in the indictment; that for about ten years prior to the commission of the alleged offense the wife of the defendant and mother of these girls had been confined in an insane asylum; that the custody and care of the children had devolved upon the father, who worked at common labor in the support of the family. At the time in question he was living in the county of Kern near the town of Wasco. The quarters available at that place for sleeping purposes were meager, being of shed-like construction, and the father and three girls slept in the same room, which was in part an open-air affair. In this room there were two beds, one of which was occupied by the two elder girls, while the defendant and his youngest daughter occupied the second. It appears that since this daughter was a very small child she had been in the habit of sleeping .in the same bed with her father. On the date charged in the indictment a brother of the defendant was stopping at the same place, and at night he used a third bed which was about eighteen feet away from the bed of the defendant. Between the two beds there was some screen or obstruction which it was necessary to look over in order to obtain a view of the space wherein the girls and father slept. This brother testified that on the night in question, after the defendant and Hazel had retired, he, with the intent to observe what transpired, got up and looked across the intervening obstruction at the bed which his brother and niece occupied. This witness testified that both of the elder daughters were away that evening ; that he saw his brother awaken Hazel, heard a mumbled conversation, and saw certain movements of the bedclothes which he described.

[1]

Hazel Boardman, when called as a witness, answered first the direct question as to whether at the time specified her father had had sexual intercourse