People v. McCoy

FINCH, P. J.

The defendant was convicted of the crime of rape and prosecutes this appeal from the judgment and the order denying a new trial.

[535]

The prosecutrix was thirty-seven years old at the time of the alleged offense. She had been married twice; once in Arkansas and once in New Mexico. Both husbands were dead. She was the mother of six children. The eldest, a son of twenty years, was married and lived in his own home. The other children lived with the prosecutrix. She and the defendant first met at Modesto in the latter part of August, 1920. They were both working in a milk eondensary at that time. The prosecutrix testified that early in November the defendant proposed marriage and that she accepted; that the defendant said he desired to keep the marriage secret for business reasons and it was, therefore, agreed that the marriage ceremony be performed in Berkeley; that the defendant introduced a man under the name of Williams, whom they authorized in writing to procure a marriage license for them; that on the fifteenth day of November, after nightfall, she and defendant motored from Modesto to a city, which the defendant said was Berkeley, where they met Williams and two other men in an office and there went through the form of a marriage ceremony, after which she and the defendant returned to Modesto the same night; that thereafter she and the defendant maintained the relation of husband and wife under the belief on her part that they were legally married and that the defendant was her husband; and that she was induced to maintain such relation by the artifice of the pretended marriage which she had been induced to enter into by the defendant. A daughter and a daughter-in-law of the prosecutrix testified that the defendant stated to them, during the early part of the year 1921, that he and the prosecutrix had been married and that he had the marriage license and certificate in his possession. The defendant denied all of the foregoing testimony except that as to sexual relations, which he admitted. He testified that the prosecutrix told her children and her daughter-in-law in his presence that he and the prosecutrix were married and that he did not deny it. He testified, and the prosecutrix denied, that •such relations commenced the second day after the parties became acquainted and continued up to the middle of November, 1920. Both testified that such relations were maintained for several months after November 15th. Several witnesses testified that the defendant gave the prosecutrix