People v. Castro
Before: Garoutte, Harrison
Synopsis
Criminal Law—Rape—Order Granting Hew Trial—Review upon Appeal. — An order granting a new trial to a defendant convicted of rape will be affirmed upon appeal, if it was properly made on any ground raised in the defendant’s motion.
Id. — Charge of Single Act—Proof of a Series of Acts—Main Act not Proved or Selected—Hew Trial. — Where the information charged a single act of rape at a particular date, upon a female under the age of consent, and a series of acts of sexual intercourse between them was proved, without proof of any main act of the date charged, the state should have been required to select the particular act relied upon to sustain the information, and if this was not done, and the court did not direct the jury to any particular act which must be proved to sustain a conviction, and the defendant was convicted, a new trial was properly granted.
Id. — Evidence—Prior and Subsequent Acts.—It seems that where rape is charged by sexual intercourse with a female under the age of consent, evidence of acts of sexual intercourse between the parties, both before and after the particular act charged, may be introduced in evidence, as tending to sustain the main allegation. [Per Garoutte, J., and Van Dyke, J. Harrison, J., holding, contra, that evidence of subsequent acts of sexual intercourse was inadmissible, and should have been excluded.]
Opinion — Garoutte
GAROUTTE, J.
—Defendant was convicted of the crime of rape. The superior court granted a motion for a new trial, and the state appeals. The offense is alleged by the information to have been committed upon June 30, 1899, and the prosecutrix was alleged to have been under the age of consent. At the-trial, four separate acts of sexual intercourse committed by defendant were sworn to by the prosecutrix. These acts were proven under objection of defendant, and covered a period of time extending over several months. No one of the acts was proven to have been committed upon the thirtieth day of June. It is not material, upon this appeal, as to the particular ground upon which the court based its order granting the new trial; for if the order should have been made upon any one of the grounds raised by defendant, it will be affirmed.
(Kauffman
v.
Maier,
94 Cal. 276;
In re Martin,
113 Cal. 481.)
The doctrine appears to be fairly well settled, that, in actions of adultery, seduction, etc., evidence of sexual intercourse between the parties, both before and after the particular act charged, may be introduced in evidence, as tending to sustain the main allegation. Chief Justice Bartch, in his dissenting opinion in the case of
State
v.
Hilberg,
61 Pac. Rep. 215, thus states the rule: “ Where, as in this case, there is a continuation of the relation of intimacy and illicit intercourse between the parties to the offense, evidence of improper familiarity and adulterous acts both before and after the act charged is admissible. Such evidence is received to prove the adulterous disposition in the parties implicated. This appears to be the rule sanctioned by the weight of recent authority.” The cases cited by him to support the proposition advanced may well be declared to constitute the great weight of authority.
The Hilberg case, in its facts, and upon the record, is very similar to the case at bar, and many of the reasons there advanced by the court for a reversal of the judgment appeal strongly to.the court here. Under the
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