People v. Currie

CHIPMAN, P. J.

Defendant was tried on an information accusing him with having unlawful sexual intercourse, on or about the twenty-fifth day of February, 1908,' with the female named, she then being under the age of sixteen years. He was convicted and sentenced to imprisonment for the term of sixteen years and six months. Motion for a new trial was denied and defendant appeals from the order.

This is the second appeal of defendant after having been twice convicted.

1. Appellant’s first point is that the complaint before the magistrate was sworn to by the district attorney “positively, not upon information and belief,” and that “no depositions accompanied the filing of the complaint and, the charge being a felony, the justice had no legal right to issue the warrant of arrest or hold the examination under such a state of facts.”

It is suggested as “a seeming legal impossibility that he (the district attorney) should know the facts of his own knowledge. ’ ’

There is nothing in the statute which disqualifies the district attorney from swearing to the complaint. The statute does not prescribe who shall make oath to the complaint. The argument that the defendant could not have and did not have a fair trial because of the fact that the district attorney made the complaint and afterward conducted the trial is without merit. His having made the complaint before the magistrate would not indicate necessarily any

[734]

greater zeal or interest in the case than the subsequent filing of the information. The fairness of the trial is to be judged by what took place at the trial.

2. It is contended that the story told by the prosecuting witness is inherently improbable. We do not think it necessary to give publicity to her testimony. These salacious narratives of man’s brutal instincts add little to our legal .literature and should be kept out of the reports where the points made do not imperatively demand giving the testimony. We cannot say that the undisputed story told by the prosecuting witness, accepted as true by two juries, contains any such improbabilities as at once to import disbelief in them, or to suggest that, in believing them, the jury showed that it acted under passion and prejudice. The prosecuting witness testified that the illicit act complained of happened on the 24th or 25th of February, T908, and that she had never, either before or after, had sexual intercourse with defendant or any other person. It was in evidence that she gave birth to a child at Sacramento on October 31, 1908, eight months and three days after February 25, 1908, and the attending physician testified that the child weighed eight pounds. He also testified, in reply to the question whether the child “had passed the full period of gestation,” that “it was full nine months.” He also testified that “if it had not been a full nine months child there .would have been peculiarities about the child or mother to show that it was born sooner than provided for”; and that “there were no such appearances.” Upon this latter point it was testified by a physician in rebuttal that if “it had not been a full nine months child,” there would not have been “any peculiarity about the mother or child to show that it was born sooner than provided for.”