People v. Bell

THOMPSON (IRA F.), J.

The defendant was charged by information filed by the district attorney of Orange County with the crime of statutory rape. The jury returned a verdict of guilty and defendant appeals from the judgment and from the order denying his motion for a new trial.

The appellant assigns four reasons for reversal, as follows:

1. That the court erred in restricting the cross-examination of the complaining witness, and of her father.

2. That the trial judge was guilty of misconduct.

3. That the court gave an erroneous instruction.

4. That the district attorney was guilty of misconduct.

We shall dispose of the arguments in the foregoing order and turn our attention to the claim that appellant was not permitted to cross-examine the complaining witness or her father on pertinent questions. The record discloses that the prosecutrix, a girl of sixteen years, testified to the following situation: On the evening of May 26, 1928, she and appellant attended a party on board a boat called “The Vision,” lying in Newport Harbor. They went aboard between 8 and 9 P. M.; went down below with the others, of whom there were about six, and talked and drank whisky. Some time before 12 o’clock the complaining witness became sick and went on deck. About five minutes later the appellant followed her. They .sat and talked for a while. Appellant then went and got some blankets so that she could lie down. He then crawled in under the blankets with her and there accomplished the act of intercourse. During the direct examination of this witness she testified that just before the act “I was sick and I didn’t know at first, but afterwards I was aware of it.” On cross-examination she answered in response to queries as follows:

“Q. And you say when he first started to having intercourse with you that you were unconscious? A. Partly.

“Q. You didn’t know what he was doing? A. Not at first.”

Later, on cross-examination, counsel asked the question: “When did you start to become unconscious?” The district

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