People v. Hewitt

CRAIG, J.

The appellant was charged by information filed by the district attorney of Los Angeles County with statutory rape, alleged to have been committed upon a female person of the age of fifteen years, on or about December 1, 1928, December 15, 1928, and March 30, 1929. Having been convicted upon all three counts, a motion for a new trial was presented, which was denied, and the defendant appeals from the judgments and from the order last mentioned.

The principal ground assigned for reversal arises from conflicting evidence which appellant attempts to construe as rendering the evidence offered by the People so inconsistent and improbable as to have resulted in a miscarriage of justice. An exhaustive

résumé

of the details is not necessary. The prosecutrix testified that appellant, who is her father, had so conducted himself toward her that she feared him, and that on the first occasion he accomplished the act charged when she was about to take a bath; that he cautioned her to be quiet; that his revolver hung on the bedpost and that she made no outcry. The second offense, according to her testimony, occurred as she lay on her bed,

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reading, when her mother had gone to the store; that she fought with her hands and made an outcry. She swore that upon the third occasion the defendant threatened her with a wrench while repairing his automobile, and said that should she refuse to comply with his demands when made he would kill her, and that she should not inform her mother; that she accompanied him in the machine to a secluded place in a vacant street or alley, where he repeated the sexual offense charged in the information. The child further testified that during this latter debauchery appellant had his gun with him, and that he also told her to make no complaint lest there might be people around; that she pleaded with him, finally becoming hysterical. It appears from the testimony of the prosecutrix that upon her return home on March 30th other members of the family were preparing for a picnic luncheon on the following day, Easter Sunday, and that on the following Friday she related her experiences to an aunt, who, with the defendant’s mother, accompanied her to the offices of the juvenile department. A county physician testified to the physical evidences tending to corroborate the fact of recent penetration.