People v. Marino

California Court of Appeal Apr 17, 1917 No. Crim. No. 666.Published

Before: Lennon

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Holding. The court held that evidence of prior acts of sexual intercourse between the defendant and the prosecutrix, including resulting pregnancy and abortion, was admissible to show the defendant's lewd disposition and as an admission of guilt. Furthermore, the court held that the failure to give a specific instruction on penetration was not reversible error because the jury was adequately instructed on the definition of rape.

Issues

Whether evidence of prior sexual acts, pregnancy, and abortion was admissible in a rape trial.
Whether the trial court's refusal to give a specific instruction on penetration constituted reversible error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under the settled rule in this state the evidence of those prior acts was admissible in support of the charge upon which the defendant was being tried, upon the theory that it tended to show the lewd and lascivious tendencies and disposition”

“The fact that it also'tended to show the commission of two separate, independent, and outlawed crimes did not render it incompetent as evidence for the purpose for which it was offered.”

“The phrase “sexual intercourse” as employed in this definition of rape, is commonly understood, we think, to imply an actual penetration.”

Synopsis

APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. W. A. Beasly, Judge.

The facts are stated in the opinion of the court.

LENNON, P. J.

Upon this appeal from a judgment of final conviction after a verdict finding the defendant guilty of the crime of rape upon his seventeen year old daughter, the sufficiency of the evidence to support the verdict is not challenged. A reversal of the judgment is urged because of the ruling of the trial court, which, over the objection of the defendant, permitted the prosecutrix to testify in substance that when she was about fourteen years of age she became pregnant as the result of an act of sexual intercourse with her father. Upon that occasion she told her father, the defendant, that “she did not get her monthlies.” The defendant replied: “I know what’s the matter with you—you are in the family way.’ ’ The defendant then left the house and two or three hours later returned, whereupon he said to the prosecutrix: “Dress up and I will take you to a place where you will get over what you have.” Defendant took the prosecutrix to the home of a Mr. Gibson, and while there told her in Italian to “tell Dr. Gibson” that she was “in a family

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way.” She so told Gibson, who replied that he could help her but that he “could not do it for nothing.” Whereupon the defendant promised to pay Gibson the sum of $50. At this point in the testimony of the prosecutrix the trial court sustained an objection to a question which sought to elicit what Gibson did to her, but permitted her to say that she remained alone with Gibson for three or four hours, after which she was taken “to some place to get well,” where she remained “very ill” for about a week. The defendant called there to see her in the evening of the day that she left Gibson’s house, and said to her, “How are you? Are you better?”

We see no error in the ruling complained of which permitted the above narrated facts to go in evidence. The act of sexual intercourse referred to therein was one of a series of such acts which the prosecutrix testified had been committed with her by the defendant from the time that she was fourteen years of age. Under the settled rule in this state the evidence of those prior acts was admissible in support of the charge upon which the defendant was being tried, upon the theory that it tended to show the lewd and lascivious tendencies and disposition of the prosecutrix and defendant.

(People

People v. Marino

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Synopsis

LENNON, P. J.

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