People v. Castro

CASHIN, J.

Defendant was convicted of the crime of rape, alleged to have been committed on one Carmen Mancha, a female aged about fifteen years. The appeal is from the judgment and from an order denying a motion for a new trial. It is contended that the evidence was insufficient to support the verdict and that the admission of certain testimony over objection and the giving of an instruction to the jury were prejudicially erroneous.

The crime was alleged to have been committed in the city of Monterey on or about October 5, 1925, and it was shown that the defendant had been acquainted with the child and her parents for some" time previous to that date. It was testified that the defendant had invited the child to visit the place where he resided, that visits were made, and that on the occasion in question she was accompanied by other girls about her age. These were called as witnesses for the prosecution, and. according to their testimony, the girl Carmen on this occasion—the date of which they fixed as October 5, 1925—went into a bedroom with the defendant, where she remained for several minutes. The testimony of Carmen Mancha as to the fact charged and the place of its commission was contradictory. At the trial, after testifying that the act was committed by the defendant and relating in detail the circumstances, she retracted the statement, but subsequently on her redirect examination repeated

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the charge. It further appears that before the trial the witness had also retracted the charge which she originally made. Her testimony, however, tended to show that she feared that if the charge was made it would lead to her being committed to the reform

school;

and it is evident that the jury believed that her testimony was influenced in a considerable degree by her fears in this respect. According to her testimony, she made no resistance or outcry and no complaint subsequently, and it is apparent from the evidence that she willingly submitted to the defendant. In view of all the circumstances shown her testimony was not inherently improbable; and the question of her credibility was for the jury (Code Civ. Proc., sec. 1847), who not only had the right but the duty to determine to what extent her testimony should be believed