People v. Rubalcado

FINLAYSON, P. J.

Defendant was charged with the crime of rape upon the person of a female child under the age of sixteen years. He was found guilty and sentenced to state’s prison. He appeals from the judgment of conviction.

Besides contending that the evidence is insufficient to support the verdict, appellant assigns as error the giving of an instruction which, it is claimed, was misleading in that the jurors may have concluded therefrom that they could consider, as direct evidence of defendant’s guilt, certain testimony that was given by the girl upon defendant’s preliminary examination, and which, if admissible, could be received solely for the purpose of impeachment. As we are of the opinion that appellant’s criticism of the instruction is well taken, it will not be necessary to consider whether there was sufficient evidence to justify the verdict of guilty. It will, however, he necessary to give a brief statement of the facts in order to show the prejudicial effect of the instruction.

Defendant was a' boarder in the home of the parents of his alleged victim, an eleven year old school girl. On June 10, 1921, a friend drove the pair to the house of a neighbor, one Francisco Villegas, who lived on a near-by ranch. They stayed there three days. The neighbor’s house has but two rooms, only one of which is a bedroom. During their stay at Villegas’ home, defendant and the girl slept on the same bed; but, according to the uneontradicted testimony of the

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witnesses for both, the prosecution and the defense, the two used separate coverings and slept fully dressed. Francisco Villegas slept on the floor in the same room.

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On the trial of the case in the superior court the girl was called as a witness for the prosecution. In response to questions propounded to her by the district attorney she testified that she had not had sexual intercourse with the defendant at any time during their three-day stay at Villegas’ house. She strenuously insisted that defendant’s conduct had been entirely proper. Thereupon she was ashed by the district attorney, by whom she had been called as a witness, if, at the preliminary examination before the committing magistrate, she had not testified that she did in fact have intercourse with the defendant during their stay at Villegas’ home. She admitted that she had so testified, but emphatically declared that her testimony before the committing magistrate, so far as it related to her alleged sexual intercourse with defendant, was not true.