People v. Carey

NOURSE, J.

Appellant was convicted on an indictment charging forcible rape upon Jessie Montgomery. He appeals from the resultant judgment and from the order denying his motion for a new trial.

[1]

It is first urged that the testimony of the prosecutrix is inherently improbable and insufficient to justify the verdict. This testimony is substantially the same as that reviewed in

People

v.

Murphy, ante,

p. 474, [200 Pac. 484], and in

People

v.

Kruvosky, post,

p. 744, [200 Pac. 831]. It is not necessary to review it here. It is enough to say that it was sufficient, if believed, to justify the verdict, and that it is not so improbable as to warrant this court in setting aside the verdict. The fact that when the prosecutrix was confronted with appellant she merely identified him as one of the party and did not specifically charge him with rape is said to be highly significant. But the prosecutrix was merely asked to make the identification.

[2]

Criticism is made of the following instruction: “You are further instructed that the moral delinquency of the girl complainant, if there be any such moral delinquency, is not to be considered as affecting her credibility.” The vice of this instruction is that it singles out one witness from all those who appeared before the jury. The jury is told that the moral delinquency of that one cannot be considered by them, thus giving the impression that the moral delinquency of others might be considered. Though the instruction as given cannot be defended, a careful review of the entire record in this particular case fails to show that defendant was prejudiced by it.

(People

v.

Murphy, supra.)

The same criticism of the instruction on the flight of defendant which was made in the Murphy case is made here, and the court in that case correctly disposed of that objection.

[3]