People v. Mitchell

HOUSER, J.

Defendant was convicted of having committed the crime of rape on the person of a girl of the age of fourteen years. He appeals from the judgment and urges the following reasons why he should be granted a new trial:

1. That the evidence is insufficient to justify the rendition of a verdict of guilty.

2. That errors of law in the admission of evidence were committed 'by the trial judge and the evidence so admitted was prejudicial to defendant.

3. That the verdict of the jury was not such a verdict as is contemplated by law.

With reference to the first specification, the evidence which the jury had a right to consider in making up the verdict showed that the mother of the prosecuting witness and her younger brother and their stepfather were living in a tent in the town of Johannesburg; that on the 20th of August, 1922, the mother and the stepfather went to the town of Huntington Beach for a stay of a few days, leaving the children alone in the tent; that defendant was well acquainted with all the parties, lived in their immediate neighborhood, knew of the temporary absence of the mother and the stepfather of the girl; that the next day after the departure of the mother ,and stepfather he visited the girl at least twice, and probably three times, and that it was on the evening of that day when the offense was committed; that on the latter or the last of the occasions on which he visited the girl ,he found her sleeping alone in one of the beds in the tent which she occupied; that, according to his own testimony, earlier in the day he had had some conversation of an improper nature with the prosecuting witness; that on one occasion he had seen the girl and her stepfather go into a bathroom to take a bath together; that

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his own wife had told him that the prosecuting witness had confessed to her that she had been intimate with several different men; the prosecuting witness testified that the first knowledge she had of defendant’s presence in the tent was when she was awakened by defendant, who was in bed with her, with his arms around her, and that the act of which complaint is made then occurred; that both the nightgown worn by the prosecuting witness at that time as well as the undergarments of defendant which he wore on that occasion, and which were exhibited to the jury, had on them spots of blood; that defendant made damaging admissions with reference to his guilt to the stepfather of the prosecuting witness, and that defendant also wrote a letter to his wife which contained statements from which his guilt might be inferred. While defendant denied many of the foregoing statements, and made some effort to establish .an alibi, it is a well-settled rule of law that the degree of credibility which shall be accorded to a witness, or to all the witnesses, as well as the power of judging of the effect and value of evidence, are matters which lie exclusively within the province of the jury. (Sec. 1847, Code Civ. Proc.;