People v. Bernon

THE COURT.

This is an appeal from a judgment of conviction of the defendant upon a charge of rape alleged to have been committed by the defendant upon his daughter, Leona Bernon, a girl of the age of fourteen years, and from an order denying a new trial.

Mr. Mering (for the Appellant) : Your Honors, our contention is that the defendant was convicted on the uncorroborated testimony of an accomplice; the girl herself was an accomplice under

People

v.

Robbins,

171 Cal. 466, [154 Pac. 317], which was a case of the unmentionable crime on a boy sixteen years of age, and the supreme court said he was an accomplice. It would be exactly the same as with a boy—

[425]

The Court: If this girl was below the age of consent she could not have consented to this crime.

Mr. Mering: But the boy was below the age of consent.

The Court: Our statute does not make the rule of consent applicable to a boy as well as to a girl. The only application of the rule as to the age of consent is as to females. There is no doubt about that.

Mr. Mering: She cannot give consent to the crime. The girl herself testified that she had had intercourse with another young man. This shows the corruption of her mind. There is certainly a distinction between the weight of testimony of a girl who resists and is outraged, and the girl who says, “Yes, it is so; it is all right; I consented to it. ’ ’ Isn’t the testimony of a girl that is outraged stronger than that of - a girl who is not?

The Court: That may be true, but that is a question for the jury. We lmow of no law, and are cited to no case which holds, that a female below the age of consent is an accomplice in the crime of rape committed upon her, or that requires that her testimony should be supported by corroboration in order to sustain a conviction.

Nor do we think that the testimony of the prosecuting witness in this case is either so weak because of her intellectual or moral infirmities, or is so inherently improbable, as to be insufficient of itself to support a conviction.