People v. Lawler

STURTEVANT, J.

The district attorney filed an information against the defendant charging him with the crime of assault with intent- to commit rape. He was tried in the trial court before the court sitting with a

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jury. The jury found him guilty. He made a motion for a new trial. The motion was denied. Judgment was entered in accordance with the verdict. Prom that judgment and from the order denying him a new trial the defendant has prosecuted this appeal.

The appellant claims (1) that the verdict was contrary to the law; (2) that the verdict was contrary to the evidence; (3) that the court erred in denying appellant’s motion for a new trial; and (4) that certain jurors were guilty of misconduct by which a fair and due consideration of the case was prevented.

The appellant takes many pages to quote the testimony of numerous witnesses. Having done so, he states that he fully realizes that an appellate court will not disturb the verdict of the jury simply on a conflict of the evidence. Thereupon he states that his “appeal is raised not merely to point out the very evident conflict of evidence against defendant, but rather to point out that the testimony presented against the defendant was inherently improbable and untrue.” His attempted differentiation is not successful. Taking up the “inherent improbability” we find it is without merit. Because at one time in her testimony the prosecutrix testified that she locked the door to her room before she went to bed, and, in another place in her testimony, she testified that about midnight the defendant entered her room, the appellant argues that her story is inherently improbable. To state the argument is to answer it. Perhaps the prosecutrix was mistaken when she testified that she locked her door. There are many other possible explanations that would square with her story. But the locked or unlocked door is a circumstance which falls far short of justifying a court of review in saying that the entire story as told by the prosecutrix was inherently improbable. It is not at all necessary to recite that story in this decision. It is sufficient to state that the story as told by the prosecutrix was one that was not at all inherently improbable and the only real question presented by the record was the identification of the defendant.