People v. Barton

CRAIG, J.

It was charged by information that the appellant committed rape upon a girl of the age of eleven years on or about the fifteenth day of September, 1921; and by a second count he was also charged with having committed an assault upon the same child with intent to commit rape. A jury found him guilty as charged in the first count, and acquitted him on the charge of attempted rape. A motion for new trial having been denied, this appeal is taken from the judgment and order denying said motion.

[423]

The prosecuting witness was one of two adopted daughters of appellant and wife, and she testified that she came from Montana to San Pedro, Los Angeles County, in the year 1917, and that she lived in a tent at the latter place, until the defendant built a garage, wherein she slept thereafter. She testified that she became eleven years of age on September 27, 1921, and that appellant had taken indecent liberties and indulged in lascivious conduct with her person ever since she was about eight years old, but that he had had actual intercourse with her only once and that it occurred about two weeks before her eleventh birthday.

Many grounds are assigned for reversal, including alleged insufficiency of the evidence to support a conviction, and asserted errors of the trial court in its rulings during the trial, and in giving and refusing instructions. From the view which we take of the ease it is apparent, as we shall hereafter show, that it must be reversed, and doubtless certain features complained of will not recur upon another trial. We shall, therefore, devote our attention only to points which require rulings at this time.

Although the testimony of the prosecutrix, if believed by the jury, may be said to have been accompanied by incriminating circumstances, yet without it there was little evidence of guilt; such being the fact, we are constrained to analyze and subject to close scrutiny the principal factors which apparently led to the conviction.

The prosecutrix testified, and it was the theory of the prosecution, that appellant slept in the garage with his daughter, and that the act complained of occurred therein, but appellant stated positively that there had been no bed in the garage for months preceding the date of the alleged offense, and that all of the girl’s testimony in this regard was false. Other witnesses corroborated him in this, and swore that the principals in the case occupied beds in different parts of the house during all of this period. Appellant argues that the prosecutrix was discredited by this evidence, but disputed questions of fact were thus presented, and it was solely within the province of the jury to determine as to the credibility of the witnesses, and as to the truth or falsity of the evidence.