People v. Totman

VAN DYKE, J.

Defendant was accused by information with the crime of rape. He demurred to the information, which demurrer was overruled. He was thereafter tried and convicted. Thereupon he moved for a new trial, which motion was denied, also a motion in arrest of judgment. From the final judgment and from the order overruling his motion for a new trial this appeal is prosecuted.

The rape was alleged to have been committed on June 26, 1900, upon Augusta E. Moullen, an orphan, fourteen years of age, residing on a ranch in Fresno County with her aunt and the defendant, who was her uncle.

The appellant claims that the demurrer should have been sustained, for the reason that the information failed to state that at the time of the alleged criminal intercourse with the prosecutrix she was under the age of sixteen years. The information charges: “That the said Joe Totman, on or about the twenty-sixth day of June, . . . and prior to the filing of this information, did . . . have sexual and carnal intercourse with one Augusta E. Moullen, a female child under the age of sixteen years,—to wit, óf the age of thirteen years.” This language is sufficiently clear to indicate that the prosecutrix was under the age of sixteen.

It is contended by appellant that the court erred in not granting defendant’s motion for a continuance. Necessarily, the trial court is allowed much discretion in the matter of granting or refusing such motions. The code reads as follows: “When an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day.” (Pen. Code, see. 1052.) In

People

v.

Gaunt,

23 Cal, 157, it is said by this court: “Applications for the postponement of a trial are addressed largely to the discretion of the trial court, and its decision upon such motion will not be disturbed on appeal, unless there has been a gross abuse of discretion.” Under the circumstances disclosed by the record in this case, we cannot say that the court below

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abused its discretion in denying the motion for a continuance.