People v. Moore

BEATTY, C. J.

The defendant was convicted of an assault with intent to commit rape. His appeal from the judgment, and from an order denying his motion for a new trial presents the single question whether there was credible evidence of any facts which would warrant the inference that the de

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fendant was actuated in what he did by the alleged felonious intent. The justices of the district court of appeal, having been unable to agree upon this point, it remains to be decided here.

There is a sharp conflict in the evidence as to the "character and circumstances of the assault, and especially between the testimony of the prosecuting witness and that of the defendant—each of whom is to some extent corroborated by witnesses apparently disinterested and wholly unimpeached. But, since our appellate jurisdiction extends only to questions of law, we must accept as proven the facts as detailed by the witnesses for the state.

The prosecuting witness was a girl sixteen years of age, a member of a vaudeville troupe which had been performing at various points in the interior, and was at the time of the assault giving a series of performances at the town of Ar-buckle in Colusa County. She, her father and mother, and other members of the troupe, were housed in a traveling car which stood on a siding near the railway depot. Opposite, and facing the depot, at a distance of about one hundred and fifty feet, stood the Hotel Ash—separated from the street by a sidewalk ten feet in width. Connecting the street and side walk in front of the hotel was a bridge across the gutter seven or eight feet long—called in the evidence a “runway.” The defendant was in charge of a bootblack stand on the sidewalk near this runway. At twenty minutes to 6 p. m., on the twenty-first day of December, 1907, when one of defendant’s customers had just left the stand and was not more than eighty feet distant, the prosecuting witness, returning to her car with some parcels she had been purchasing in the town, encountered the defendant just as she was turning from the sidewalk to the runway for the purpose of crossing the street. At that hour of the shortest day of the year it was, of course, quite dark in the absence of artificial light, but the sidewalk in front of the hotel and the runway were lit up by the lamps burning in the office of the hotel and shining through its glass front, so that persons passing could be readily recognized by their acquaintances. As to these general facts there is no conflict in the evidence. The testimony of the prosecuting witness was that when she was about twenty feet from the runway, defendant called out “hello” to her. She did not answer,