265 P. 976 | Cal. Ct. App. | 1928
The district attorney filed an information against the defendant charging him with having committed the crime of rape "on or about the 25th day of October, 1926," on the person of a little girl of the age of eleven. The defendant appeared and pleaded not guilty. The trial was had in the lower court before the court sitting with a jury. The jury returned a verdict which was against the defendant. He made a motion for a new trial. The motion was denied. From the judgment entered on the verdict and from the order denying his motion for a new trial the defendant has appealed.
[1] Some evidence was admitted tending to prove that in July, 1927, the prosecutrix made a complaint to one of the police officers, Mrs. Sullivan, regarding the alleged assault of the defendant. He asserts the complaint was made at a date which was too remote and that the evidence was not admissible. (People v.Lambert,
[2] While the same witness was on the stand and under cross-examination, she stated in reply to questions propounded by the defense certain conduct she observed on the part of the defendant toward Evelyn Re, the cousin of the witness. Later the defense attempted to disprove those collateral statements by the testimony of the defendant when a witness in his own behalf. To those questions the prosecution interposed objections that they were addressed to collateral matters. The objections were sustained. The trial court did not err in sustaining the objections.
[3] The prosecution addressed its proof to an occasion on the Saturday before Hallowe'en, 1926, at a spot in Golden Gate Park out near the beach. After having done so it introduced proof to the effect that other acts had been committed on other Saturdays. The prosecutrix designated each of the three or four Saturdays immediately preceding. The defendant asserts that the prosecution committed error in not electing on which act it based its charge. The point is not well taken. At no time did the defense call upon the prosecution to make an election and at no time did the trial court rule or have a chance to rule on the contention now made. An examination of the whole record discloses that the prosecution introduced specific proof as to the act above mentioned; but, after having done so, the proof of the other *475
acts was introduced in general terms and was not embodied in any certain question and answer. However, on cross-examination it was made to appear that similar acts occurred on each of the three Saturdays immediately preceding October 23, 1926. It is quite clear, therefore, that the defense was not misled as to the particular act for which he was being tried. There was no error. (People v. Scott,
[4] Finally, it is claimed that the verdict was void. When the alleged offense is committed on a girl under the age of eighteen years "the jury shall recommend by their verdict whether the punishment shall be by imprisonment in the county jail or in the state prison." (Pen. Code, sec.
We find no error in the record. The judgment and order are affirmed.
Nourse, J., and Burroughs, P.J., pro tem., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on April 25, 1928.