People v. Peery

JAMES, J.

Appellant was convicted of the crime of rape and sentenced to serve a term of imprisonment in the penitentiary. Appeals were taken from the judgment and from an order denying a motion for a new trial. Counsel for appellant states that there is an appeal also from an order denying a motion made in arrest of judgment. No separate appeal lies from such an order, although that ruling is subject to review on the appeal taken from the judgment.

(People

v.

Rogers,

163 Cal. 476, [126 Pac. 143].)

The female participant in the alleged crime was a girl of about nineteen years of age, the daughter, by a former marriage, of appellant’s wife. It was alleged that the girl was of unsound mind and incapable of consenting to the illicit act. At a trial previously had appellant admitted the fact as to the intercourse had with the girl, and he at the time of his arrest made the same admission, in effect, to the arresting officer. These statements were proved before the jury. The grandmother of the girl testified that she had

[145]

known the latter since her birth and had seen her constantly during a great many of the years following that event, and as often as once a week during the five years immediately preceding the trial. She testified that the girl had always been weak mentally; that she could not be taught to read or spell or do sums in arithmetic, although she was sent to school and every effort made to teach her; that she could not count money and did not know the difference in value between a nickel and a twenty-five-cent piece. The physician who attended t*he girl upon the occasion of the birth of her child testified that she answered his questions vaguely and contradicted herself several times. He said: “In the dealings I have had with this girl she has appeared to me to be not violently insane or anything of that sort, but she does appear to me to be equipped with a grade of mentality that is insufficient to protect her from the common vicissitudes of life as they are likely to come to us, and on that ground I base my opinion that she is of unsound mind. ... I don’t consider she is in danger of becoming violent or a menace to herself or to her children or a menace to the people around her. She is suffering from a milder grade of not being sound; I think she isn’t of the ordinary mentality. ” The girl sat in the courtroom and was pointed out and identified by a witness for the benefit of the jury. There was testimony introduced on behalf of appellant in defense of the charge which contradicted that of the prosecution touching the matter of the alleged unsoundness of mind of the girl. With the question as to whether this contradictory testimony was of preponderating weight, this court has nothing to do; the jury in the case had the right and it was their duty to- finally settle any question arising out of a conflict of the evidence. It is claimed, however, that a question of law is presented on the evidence in the record, for the reason that the proof offered by the prosecution was not sufficient to warrant a finding, as the verdict implies, that the girl was incapable of consenting to an act of sexual intercourse. Legal consent which will be held sufficient assumes a capacity in the person consenting to understand and appreciate the nature of the act committed, its immoral character and the probable or natural consequences which may attend it. Impaired mentality may exist and yet the individual may be able to exercise reasonable judgment with respect to the particular matter presented to his or her mind.