People v. Price

CHIPMAN, P. J.

An information was filed against the defendant by the district attorney of San Joaquin County, charging the defendant with rape upon the person of one Nancy Baker, a girl under the age of consent. Defendant was convicted of an attempt to commit rape and sentenced to serve a term of ten years at San Quentin prison. He appeals from the judgment and from the order denying his motion for a new trial.

Appellant’s brief is devoted chiefly to a discussion of the evidence and to a challenge of its sufficiency to support the verdict. The prosecuting witness testified that defendant had sexual intercourse with her—that there was actual penetration of her private parts. A physical examination of the girl by physicians shortly after the alleged crime, and other evidence created such doubt in the minds of the jury that they found the defendant guilty only of an attempt to commit the crime. It is hence argued that this finding of the jury, to

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gether with many circumstances and facts pointed out, shows that the story told by the girl is wholly unworthy of belief and in fact purely the creature of her imagination.

At the time of the alleged commission of the crime, defendant and his wife were guests of Nancy Baker’s stepfather and her mother who were living in a small house, in the city of Stockton, consisting of a sitting-room, back of which was a bedroom in which the parents slept and back of this another bedroom where their three girls—Nancy, aged 12; Ruth, aged 14, and the third much younger, slept. Opening on the side of this latter bedroom was a room used as a dining-room, back of which was the kitchen. The girl’s bedroom was given to the guests and at night a mattress was laid in the dining-room at the kitchen door on which these three children slept, Nancy with her head toward their bedroom and the younger sister beside her and the older with her head at the other end of the mattress. Nancy’s testimony was that, on Saturday night, September 13, 1913, defendant came to where she was sleeping and there had sexual intercourse with her. For the purpose of showing an adulterous or lascivious disposition toward this girl on the part of defendant the prosecutrix testified that, three days prior to the date named in the information, he had sexual intercourse with her, coming to her bed on the floor as on the later occasion; that when she and her sister were playing out doors near the house he put his hand under their clothing; that he came one night, prior to September 13th, to the place where they were sleeping and displayed his private parts and on another occasion he came to the door leading from the dining-room to the bedroom where he slept and attracted the attention of the girls, who were on the mattress, and again exposed his privates. Nancy also testified that, on the afternoon of September 13th, her mother and aunt (defendant’s wife) were away; defendant bought some beer and cheese and gave the girls; that thereafter she went to her bedroom “to fix her hair” and defendant “threw her on the bed and he said, ‘let me-’ ”; that “she called her sister and she came in and he hid in the closet.” Ruth Baker corroborated Nancy’s testimony concerning defendant’s indecent exposure of his person; she also testified that she went to the bedroom when called by Nancy and the defendant was coming out of the closet and Nancy coming out of the door. Nancy made no