People v. Arnold

HOUSER, J.

Defendant was convicted of the crime of rape on the person of a girl of the age of thirteen years. He appeals from the judgment and the order denying his motion for a new trial.

From the testimony given by the prosecutrix, which was corroborated by her ten year old sister, it appears that the act of which defendant was found guilty was committed on or about March 23, 1925. There was other evidence tending to establish the case against defendant, including the facts that one witness testified to having seen defendant and the prosecuting witness in a most compromising situation on one occasion, and another witness testified that on another occasion, in the presence of herself and several

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other persons, defendant ‘ ‘ grabbed Marie (the prosecutrix) and put a big bite on her neck that was about that size around (indicating), monkey bite, I think they call them.” It also appears in evidence that on November 24, 1925, which was eight months and one day after the alleged criminal act of defendant toward the prosecutrix occurred, the prosecutrix gave birth to a fully developed child. The prosecutrix testified further that approximately ten separate acts of sexual intercourse had taken place between her and defendant, some of which occurred before, the date of the particular act specified in the information.

The first irregularity in the trial of which appellant complains is that the trial court sustained an objection interposed by the People to the following question which had been asked by counsel for defendant of the mother of the prosecutrix. “Q. Now, during the month of February, 1925, did Marie stay at Granite all the time?”

As having a bearing upon the materiality of such question, appellant urges that because the child born to the prosecutrix was fully developed at its birth on November 24, 1925, instead of its having been conceived on March 23, 1925, it “must have been begotten late in February or early in March”; and that in order to rebut the charge that defendant was the father of the child defendant had a right to show, first, that because of the possible absence of the prosecutrix from Granite during the month of February, 1925, men other than defendant had opportunity of intercourse with the prosecutrix during the particular period in which, as he contends, the child was conceived; and, secondly, that defendant had no such opportunity during such time. But, assuming (without deciding) the materiality of the question, no offer of proof was made that during the month of February, 1925,. no opportunity was open to defendant to have sexual intercourse with the prosecutrix; and it was immaterial that during such time men other than defendant may have had access to the prosecutrix. It is a cardinal rule that error, in order to be available as a ground for new trial, must be shown to have been prejudicial.