People v. Kemp

SCOTT, J., pro tem. Defendant was convicted of rape and incest. Four counts charged him with rape committed upon the person of a niece and the remaining four counts charged the same acts as incest. At the time of the commission of two of the acts the niece was sixteen years of age, and on the other two occasions she was seventeen. The jury recommended confinement in state prison as to each count of rape. Sentence was imposed on all eight counts and was ordered to run concurrently.

In March of 1932 the complaining witness, then sixteen years old, came from her home in Tennessee to reside with her uncle, the defendant, in California. She remained here until December of that year, when she returned to Tennessee. Four months thereafter she gave birth to a child, and in June of 1933 returned with her child to California. A few weeks later the child died, but the girl continued living with defendant, until October, 1933. During the entire time she was living with defendant, and particularly on the dates charged in the information, the witness testified that repeated acts of sexual intercourse took place between them.

Upon cross-examination the prosecutrix was asked certain questions as to the physical appearance of the child born to her, and objection on the ground that it was not material was sustained. A question to a former housekeeper whether she had seen a certain young man call on the prosecutrix was similarly excluded. During the lengthy examination of defendant and of witnesses called on his behalf an opportunity was afforded to fully cover all of the elements of defendant’s case upon which he relied for acquittal; and there is nothing in the record to indicate that answers to the above questions would have affected the jury’s verdict even if answered in a manner most favorable to defendant. Objections were properly sustained to certain other questions asked by defense counsel which merely sought to elicit hearsay testimony.

[51]Appellant contends tbat he was denied an opportunity to establish the alleged fact that he was physically impotent and therefore incapable of committing the acts charged. The record shows that defense counsel asked the defendant a question calling for a mere conclusion, to which objection was properly sustained. Counsel then started to “make an offer of proof”, but the court stated it did not wish to hear any offer of proof or any argument, and added, “If you want to ask any questions go ahead, and I will rule on the objections.” Thereupon defense counsel asked but one question: “Are you the father of Mamie’s child?” to which defendant replied without objection, “I am not.”