People v. White

[401]

BURNETT, J.

Appellant was convicted of the crime of rape and he appeals from the judgment and the order denying his motion for a new trial. He was jointly charged with one Willard Carlson but he was tried separately. The prosecutrix was fifteen years of age, and the evidence shows quite conclusively that she was the victim of a brutal assault •committed by the defendants acting in concert. Indeed, it would have been surprising if the jury had failed to convict appellant. We make these observations to indicate in what light we should view the two alleged errors upon which appellant relies for a reversal.

[1]

The first of these relates to the introduction in evidence of a conversation between the two defendants while they were confined in jail before the trial. The testimony was given by a constable, who was secreted in one of the cells near those occupied by White and Carlson. Their statements were purely voluntary and they were indicative of a purpose on the part of both defendants to fabricate a defense to the charge. At least, the statements were capable of such construction, and it was entirely proper to submit them to the jurors for their consideration. The statements are too indecent for publication, but it is sufficient to say that they agreed as to what their testimony should be. That they should -consider it necessary to make such agreement affords some evidence of a guilty mind. Innocent men might inquire of each other as to their recollection of an event or their knowledge of an alleged offense, but they are not at all likely to plunge immediately into" a proposal and acceptance of a-certain definite statement to be made by each in answer to a criminal charge. We are entirely satisfied that it was a proper circumstance for the jury to consider, but at any rate, under the rule that now prevails in this state, if the ruling was erroneous, it should not operate to overthrow the verdict.

[2]

The other objection is probably worthy of more serious consideration. As to it the only record is contained in the following minutes of the clerk: “The jury being now complete . . . the clerk thereupon read the information to the jury and stated defendant’s plea of not guilty. Thereupon the district attorney requested and was granted permission of the court to amend the information on its face by striking out the word Carlsen and inserting in lieu thereof the word Larsen.” In reference to this matter,