People v. Barney

Belcher, C. The defendant was charged with the crime of an attempt to commit rape upon a female child of the age of about seven years. He was convicted of the offense charged, and has appealed from the judgment entered against him, and from the orders of the court denying his motions in arrest of judgment and for a new trial.

The appellant contends that the court erred in several of its rulings upon the admission of evidence, and in refusing to give to the jury certain instructions asked by him, and in modifying and giving as modified certain other instructions.

1. There was no prejudicial error in admitting the testimony of the complaining child, Irene Boone. The court afterward ordered all of her evidence stricken out, and expressly charged the jury to totally disregard it. The jury must be presumed to have obeyed the instruction of the court, and, therefore, if it was error to admit the testimony, the error was cured by the order and instruction.

[5562]. There was no error in overruling defendant’s objection to the question propounded to Mrs. Boone, the child’s mother, as to whether, shortly after the date of the alleged offense, the child made any complaint to her about any injuries she had received from defendant. The objection was that the testimony was hearsay —no part of the res gestae. The court ruled: “I think she can testify as to whether the child complained of an assault having been made upon her, and stop there; the details of what the child stated I think is hearsay.” Afterward the court ordered all that portion of the direct testimony of the witness which connected the defendant with the alleged offense stricken out. In cases of this kind the prosecution is always permitted to prove that the injured party made complaint of the injury while it was recent. (People v. Mayes, 66 Cal. 597; 56 Am. Rep. 126; People v. Snyder, 75 Cal. 323.)

3. There was no error in overruling the objection to the question propounded to Mrs. Boone as to what was the general health and appearance of the child for the two or three months before the alleged offense. The answer was in fact favorable to defendant, and could not have operated to his prejudice with the jury.

4. There was also no error in overruling the objection to the question propounded to Mrs. Draper as to whether, when she made an examination of the child on the Friday after the offense was alleged to have been committed, there was any hymen there. The objection was that the witness was not competent to testify in relation to a matter of this kind; that it was a matter connected with the anatomy of a human being, and that to be competent, a witness should possess the same intelligence and knowledge that a physician or professor of anatomy does. The witness testified that she thought she knew what the hymen is, and that, if it was what she thought it to be, it was not there. Certainly it cannot be necessary that a witness should be a physician or a skilled physiologist in order to be competent to testify as to the existence or nonexistence of any part