People v. Williams

TEMPLE, J.

The defendant was convicted upon a charge of rape upon the person of a child aged thirteen. The appeal is from the judgment and from an order denying a new trial.

As I think the judgment must be reversed, many of the points made will not require consideration. Only those will be noticed, other than the one which necessitates a reversal, which may be necessary for the guidance of the court upon a retrial.

The briefs contain a long discussion as to the sufficiency of the evidence. It is not claimed that there was not sufficient evidence, if the prosecuting witness was worthy of credence. But her story is said to be improbable, and opposed to testimony more credible. We have so often called the attention of the profession to the fact that the appellate jurisdiction of this court does not extend to matters of fact, that we are surprised that learned counsel should spend their time in the presentation of such questions. If there is a total absence of evidence upon some essential matter, and perhaps if the evidence is so slight as not to amount to satisfactory proof within the meaning of section 1835 of the Code of Civil Procedure, a question of law is presented. The credibility of the witnesses is for the jury, or at least for the trial court, which may grant a new trial for insufficiéney of the evidence, when we could not interfere. There was an abundance of evidence in the present case, and if the jury believed the testimony for the prosecution, the verdict was right, so far as this point goes; and on the same condition the court properly refused to grant a new trial. But even if the court ought to have granted a new trial on that ground, we cannot review its action.

I think the testimony of W. S. Lacey and of the brothers of the prosecutrix as to what occurred at the office of Mr. Lacey, who was city marshal, was improperly admitted. The defend

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ant was not then under arrest, but was induced to go with the two brothers to the office of the city marshal, and was there confronted with the prosecutrix. There considerable conversation was had. The child made her statement as to what had occurred, apparently giving considerable detail as to alleged occurrences. The defendant was urged to make a statement, and was frequently threatened that the magistrate would be applied to for a warrant. The marshal testified that after the prosecutrix made her statement, he asked the defendant what he had to say about it. “I don’t think he made any reply to what she said, at all. He just sat there, and kind of cowed right down.” After this testimony he was permitted to recite what the prosecutrix had said. This was admissible, if at all, only upon the theory that,the defendant admitted the truth of what was thus said in his presence. So considered, it was clearly a confession, or that is not a confession which simply admits all the facts charged, but stops short of a confession of guilt in the precise words, “ I am guilty.” The defendant was under restraint. The brothers Tomlinson had told him, as one of them testified, that if he would make a statement exonerating their sister, he would be allowed to leave the city; and it appears the magistrate was called in, and after he had heard the statement, advised him to leave town. What was meant by exonerating their sister, after she had stated what had been done to her, was, probably, that he should admit the truth of her statement, and perhaps admit that he had used force. Nothing inculpatory was said by the defendant at the time. It made against him only because he was silent. Under such circumstances his silence did not imply an admission, but granting that it did, the admission was not voluntary. He was under restraint, and had a suggested promise that he could go free if he admitted his guilt, and a threat of prosecution if he defended himself and declared his innocence. The evidence should not have been admitted.