People v. Holmes

CRAIG, J.

The appellant was charged by information with having committed the crime of rape in violation of the provisions of subdivisions 3 and

á

of section 261 of the Penal Code, and was also charged jointly with one Tetta Ratiate with having contributed to the delinquency of a girl under the age of twenty-one years. Both defendants were convicted by a jury, and this appeal is taken from the judgment and order denying a motion for new trial upon the charge of rape.

The portions of said section which are relied upon by respondent read as follows:

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“Rape is an act of sexual intercourse, accompanied with a female not the wife of the perpetrator, under either of the following circumstances:

“. . .

“3. Where she resists, hut her resistance is overcome by force or violence;

“4. Where she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution, ...”

Appellant’s contention in his brief is that the prosecutrix cohabited with him continuously for a period of about two years from March, 1922, until the fourteenth day of May, 1924, and that from that fact, coupled with all the evidence in the case, he succeeded in proving that there was no resistance, or prevention of resistance accompanied by apparent power of execution; that such a condition of depravity was shown to have existed that the jury concluded, contrary to the evidence, that he “should be in the penitentiary regardless of the fact that he had not committed the offense alleged.” It is argued that the testimony of the prosecutrix was so inherently improbable and unworthy of belief that it should have been rejected, and that without it there was no proof of the exercise by appellant of any force or violence toward her.

The only authority attempted to be cited by appellant is section

4½

of article VI of the constitution, which he contends has been violated in spirit and intent, by the failure of the trial court to grant him a new trial. This section provides that “no judgment shall be set aside or new trial granted, unless after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” It is suggested that a proper understanding of the case requires a careful review of the entire record, in order to obtain an adequate and comprehensive knowledge of the facts. We are in accord with appellant’s admonition, but are unable to conceive of a jury rendering a different verdict upon the sordid state of facts presented in this case.