People v. Howard (1904) · DecisionDepot

People v. Howard

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court May 20, 1904 No. Crim. No. 999.Published

Before: Shaw, Beatty, Cooper

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Holding. The court held that a conviction for statutory rape requires proof of sexual penetration beyond a reasonable doubt, and that the trial court erred by restricting the defendant's cross-examination of the prosecutrix regarding her age.

Issues

Whether the evidence was sufficient to prove the sexual penetration required for a rape conviction.
Whether the trial court erred in limiting the cross-examination of the prosecutrix regarding prior inconsistent statements about her age.
Whether the trial court erred in refusing to instruct the jury that proof of intercourse alone is insufficient to sustain a rape conviction.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is essential, in order to find a defendant guilty of rape, that sexual penetration be proven, or that facts be proven from which it may be inferred.”

“The power of cross-examination is one of the most efficacious tests which is known to the law for the discovery of truth.”

“You are instructed that you cannot find the defendant guilty in this case upon proof alone that defendant had intercourse with the complaining witness.”

Synopsis

APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. H. Z. Austin, Judge.

The main facts are stated in the opinion of Commissioner Cooper. Further facts are stated in the concurring opinion of Beatty, Chief Justice.

Opinion — Cooper

COOPER, C.

The defendant is charged in the information with the crime of rape, alleged to have been committed on the fifteenth day of August, 1901, by having sexual intercourse with Irene Farias, a female under sixteen years of age. He was found guilty and sentenced to imprisonment at San Quentin for thirty years. This was beyond the expectancy of defendant’s life for that which was not a crime at common law and only a misdemeanor in many jurisdictions.

(People

Derbert,

138 Cal. 467.)

1. It is claimed that there is no evidence that defendant ever had sexual intercourse with Irene Farias, and we think the claim is well founded. Under our statute it is rape to have sexual intercourse with a female under the age of sixteen not the wife of the perpetrator. Any sexual penetration, however slight, is sufficient to complete the crime. (Pen. Code, sees. 261, 263.) It is essential, in order to find a defendant guilty of rape, that sexual penetration be proven, or that facts be proven from which it may be inferred. It is said in Underhill on Criminal Evidence (see. 416): “Proof of

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penetration beyond a reasonable doubt is always absolutely essential. Evidence that the woman voluntarily remained with the defendant in a room all night is not sufficient. ’ ’

In speaking of the statutory crime which is in many jurisdictions termed the carnal abuse of female children, Mr. Bishop, in his late work on Statutory Crimes (3d ed., sec. 488), says: “The carnal knowledge required in this offense is the same as in rape proper, explained in another connection. There must be

res in re,

but to no particular depth, and the hymen need not be broken.”

The supreme court of Wisconsin in a case where the defendant was convicted of rape upon a female child twelve years of age reversed the case, and among other things held that the evidence was not sufficient.

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Concurrence — Beatty

BEATTY, C. J., concurring.

I concur in the judgment. The sexual intercourse, if any, between the prosecutrix and defendant was with her full consent, and it was therefore essential to show that she was under sixteen at the date of such intercourse. The evidence on this point was exceedingly weak. The prosecutrix testified, in effect, that she was between fifteen and sixteen at the date of the alleged offense, but it was clearly proved, and practically admitted by her, that she had made statements to a number of persons on different occasions which if true proved that she was over sixteen, and she offered no explanation of this discrepancy. Her mother testified on direct examination that the prosecutrix was between fifteen and sixteen, but on cross-examination could not give the year of her birth. The trial was in Fresno, where the girl was born, and where it is reasonable to suppose witnesses could have been found to fix the date of her birth, but no evidence was offered to corroborate that which I have stated.

Weak as the testimony was, however, upon this and other points, the judgment and order of the superior court could not perhaps be reversed here upon that ground alone, but certainly the case is one in which the refusal of proper instructions cannot be excused upon the ground that such rulings were not prejudicial.

Among other instructions requested by defendant, and refused by the court, were the following:—

“If the jury believe from the evidence that at the time the offense is alleged to have been committed the prosecuting witness made no outcry and didn’t immediately complain to others, but concealed it for several months and then only told it by reason of threats and promises, then the jury should take" this circumstance into consideration with all the other evidence in determining the credibility of such witness and whether a rape was in fact committed or not.”

“You are further instructed that the defendant is presumed to be innocent until the guilt is established by such evidence as will exclude every reasonable doubt. Therefore

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the law requires that no man shall be convicted of a crime until each and every man of the jury is satisfied by the evidence in the case, to the exclusion of every reasonable doubt, that the defendant is guilty as charged. So in this ease if one of the jury after having duly considered all the evidence -and after having consulted with his fellow-jurymen should entertain a reasonable doubt as to the truth of the charge, '-the jury in such case cannot find the defendant guilty.”

The first of these instructions contains a proposition that might very properly have been given to the jury if it had been clearly stated by itself. There was evidence to the effect that the prosecutrix was induced by threats of imprisonment to make the accusation, and if the jury believed this evidence they should have taken it into consideration in determining her credibility. But the court was perhaps justified in refusing to give the instruction as framed because it included another proposition which has no application to the statutory offense—concealment by a consenting female being a circumstance wholly lacking in the significance of the same fact in the common-law offense of rape. But the second of these instructions is correct in point of law, and was pertinent to the evidence in the case. It is in substance identical with the instruction commented urr in

People

v. Dole, 122 Cal. 495,

where it was said: “This is a correct statement of the duty of a juror, and should have been given. If any juror needed an instruction upon this point it was harmful to refuse it; if no juror needed the instruction it would have been harmless to give it. ’ ’

I concur in the judgment of reversal.

68 Am. St. Rep. 50.

People v. Howard

AI Brief

Synopsis

Opinion — Cooper

COOPER, C.

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Concurrence — Beatty

Concurrence — Shaw

SHAW, J.

AI Brief