People v. Brown

SHINN, P. J. Defendant appeals from a judgment entered upon a verdict convicting him of forcible rape, and from an order denying his motion for a new trial. He admitted to the arresting officers and as a witness an act of intercourse, but steadfastly insisted it was with the consent of the prosecutrix. He does not question the sufficiency of the evidence to justify the verdict. It is therefore unnecessary to relate the evidence of the circumstances of the offense.

Defendant’s principal contention is that the deputy district attorney was guilty of prejudicial misconduct in the cross-examination of defendant’s witness, a physician.

The prosecutrix was 23 years of age and unmarried. The day following the commission of the offense she was examined by a physician who testified for the People as to her injuries. Upon cross-examination he testified that in his opinion she had recently lost her virginity and also that he found gonococci cells in sufficient number to indicate an infection. Defendant called a physician who testified he had examined defendant three days after the date of the offense and that the results were “negative for any gonococcus.” Defendant had sought the examination because he had heard that he had been accused of transmitting an infection. Upon cross-examination the doctor testified that if defendant had had sexual intercourse with an infected female he would not necessarily have become infected. He was asked: “And isn’t it possible, Doctor, that he might have had gonorrhea at the time he had intercourse with the female a few days before and it not show up in your test on the 5th of November?” to which he answered, “No.” He was then asked: “Well, now, Doctor, isn’t it a fact that if a man who has gonorrhea takes one or two shots, if I might use that expression, of penicillin just before the examination, wouldn’t that show negative in your test?” to which he answered, “Yes, it would. I have no evidence that he did, though. ’ ’ Further cross-examination and redirect examination developed opinions of the witness that the administration of penicillin would normally destroy the evidence of infection in about six hours, but that there are individuals who are resistant to penicillin upon whom it would not have that effect. The doctor testified further in answer to a question by the prosecutor that as a general rule a test taken a few hours after the administration of penicillin would be negative. The question was repeated in substantially the same form and was objected to upon the ground that it had [9]been asked and answered. The objection was overruled and the witness answered: “Yes . . . I said generally, yes.”