People v. Rabbit

CONRET, P. J.

By information the defendant was charged with the crime of felony, to wit, rape, in that on or about November 16, 1922, in the county of Kern, he committed an act of sexual intercourse with and upon a certain named female person under the age of sixteen years, and not then and there the wife of the defendant. Having been convicted and sentenced upon that charge, he appeals from the judgment and from the order denying his motion for a new trial.

Appellant contends that the judgment should be reversed because the only evidence of the commission of the offense on the day charged is that of the complaining witness, and because there is no evidence of' penetration, and because there is no evidence to show that no marriage ceremony had been performed between the defendant and the prosecuting witness. We have read the evidence. We deem it not necessary to set it forth in this place. The prosecuting witness, a girl fifteen years old, testified in general terms that, at the time and place stated, sexual intercourse between herself and the defendant did occur, and that she herself was not and never had been married. Sufficient details were shown in the testimony, and there was no contention that the statements of the witness did not cover the essential facts of sexual intercourse.

It was not essential to a conviction that the testimony of the prosecuting witness be corroborated by other evidence.

(People

v.

Akey,

163 Cal. 54 [124 Pac.

718]; People

v.

McMillan,

59 Cal. App. 785 [212 Pac. 38].) The fact that she made contradictory statements at other

[266]

times prior to the trial, and even during the course of the trial, affects only the weight and credibility of her testimony. Nevertheless, since the jury believed that part of her testimony upon which the conviction rests, it is not for this court to take the place of the jury and set aside the verdict because, perchance, we might not have believed the testimony of the witness.