People v. Smith

BURNETT, J.

Defendant was convicted of the crime of rape in having sexual intercourse with a female who was under the age of consent and not the wife of said defendant.

1. There is no merit in the contention of appellant that the venue was not proved. The witness, Keeran, was asked this question: “This that you have testified to occurred in the county of Tehama and state of California, did it, Mr. Keeran?” and the answer was “Yes, sir.” The witness had just detailed certain occurrences at the home of Mrs. Ladd, the mother of the prosecutrix, and there was no conflict in the evidence that the offense was committed at said home. The showing could not have been more direct or satisfactory as to the county in which the crime was perpetrated.

2. Appellant claims that the trial court erred in overruling his objection to certain testimony given by the said witness Keeran. He was asked this question: “Mr. Keeran, in reference to the two Misses Ladd, the young ladies, did the defendant ever make any statement to you about having one of them down on the bed?” Without any objection he answered the question, “Yes, sir.” Then he was ásked: “Will you please state to the jury what that conversation was?” An objection to this was overruled and he answered: “He was speaking of the Ladd girls, and he said he had one of them down on the bed, the other night, and had felt of her and she first fought and finally just gave way to him and he felt of her and could have had sexual intercourse with her if he had wanted to.” The point of the objection is that the testimony referred to de

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fendant’s action with someone other than the prosecutrix, but this, we think, was for the jury to determine. He was speaking of both of the girls and said the conduct occurred with one of them, without mentioning her name. Manifestly, it might have referred to either, but in connection with the other evidence the jury were justified in concluding that he referred to lewd conduct with the prosecutrix. It may be said, also, that the answer to the question, which was not objected to, carried with it an inference as unfavorable as the subsequent, question and answer.

Again, the witness was asked: “And on another occasion, during the time you were in that neighborhood and you were making your headquarters at Mrs. Ladd’s, did the defendant ever make any statement to you in regard to his action with a thirteen year old girl?” The objection to this question was overruled and he answered: “Yes, he did.” He was then directed to state the conversation. He was proceeding to do so when the court, interrupting, asked the district attorney, “Do you mean this girl?’.’ and the district attorney answered, “No,' sir.” The court then sustained the objection and directed the jury to disregard what was said in relation to it. The district attorney, however, in further explanation, stated that the defendant made a remark about a thirteen year old girl but mentioned no name and did not state when it occurred. We must assume that the district attorney acted in good faith and believed the evidence was relevant and referred to the prosecutrix. It is often difficult to determine whether language used relates to the issue involved, and we cannot say that the question here is so plain that it must be held that the prosecuting officer, in violation of his oath of office, endeavored to deprive the defendant of a fair trial by offering testimony which he knew to be inadmissible. The cases cited by appellant on this point are quite different in their facts.