242 P. 876 | Cal. Ct. App. | 1925
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The indictment against appellants is in two counts. Each count charges appellants with the crime of rape committed against the same person and on the same day. It was the contention of the prosecution that each of said appellants had sexual intercourse with one Josephine Price by force and violence, and that while one of said appellants accomplished said act the other aided and abetted in its commission by holding and restraining said complaining witness and thus overcoming her resistance. That is, the prosecution contended that each of said appellants was guilty of two crimes of rape against the same person and on the same day, and that in the commission of one of said crimes the appellant James M. Dasey was the principal and appellant John M. Dasey was the accomplice, and in the commission of the other of said crimes the appellant John M. Dasey was the principal and the appellant James M. Dasey was the accomplice. The evidence admitted on behalf of the prosecution tended to show the commission of each of said crimes. There was, therefore, no merit in the motion of appellants made after the prosecution had closed its evidence in chief requiring the People to elect one of the two charges contained in the indictment as the one upon which the appellants would be prosecuted. As the appellants were charged with two separate and distinct crimes, and there was evidence tending to support both of said charges, there could be no right whatever on appellants' part to require the People to limit the prosecution to only one of said crimes. [1] Under section
[2] There was ample evidence to support the verdict finding each of the appellants guilty of each of the crimes of which he was charged. The weight of this evidence was for the jury, and the jury having found against appellants, this court will not disturb their verdict. [3] It is true that the supreme and appellate courts of this state have in some instances, in cases where the charge was one of the same character as those against appellants, reversed judgments of conviction when there apparently was a substantial conflict in the evidence. This was done in the case of People v. Hamilton,
[6] The court struck out from an instruction proposed by appellants the following: "Therefore, if you believe from the evidence in this case that the said Josephine Price, while in the automobile mentioned in evidence, while located on the streets mentioned in evidence, at times yielded to the *445 solicitations of the defendants, or either of them, and did not at all times resist to her utmost, but subsequently consented to the acts of intercourse charged in the indictment, then and in that event you should find the defendants not guilty."
It is claimed by appellants that they were seriously prejudiced by the court's refusal to give the foregoing portion of the proposed instruction. Conceding that the portion of the instruction which the court struck out correctly stated the law as to the extent and degree of resistance required of the prosecutrix in a case of this character, there was no error on the part of the court in refusing to give it. The court gave other instructions upon this phase of the case, one of which was as follows: "The law requires that the prosecution must satisfy your minds that the prosecutrix resisted at all times to the full extent of her ability, and that her resistance was overcome by means of force and violence. And if you find from the evidence in this case that the prosecutrix, Josephine Price, did not at all times resist to the full extent of her ability, and that her resistance was not overcome by means of force or violence, your verdict should be not guilty." We think the rights of appellants were all properly safeguarded by the court in the instructions given.
[7] Appellants took exception to various statements of the district attorney made during the latter's argument to the jury. In each instance the court sustained appellants' objection to such statements and admonished the jury to disregard them. In view of the nature of these statements, and the admonition given by the court in relation thereto, we are of the opinion that no injury was sustained by appellants on account of such remarks.
[8] No error was committed by the court in permitting the police officer to testify to the number borne by the automobile which it was claimed was used by appellants on the night of the assaults. It may be conceded that the only knowledge that the police officer had as to this number was gained by him from the prosecutrix, although this does not clearly appear from the evidence. Therefore, his statement as to the number was hearsay. The only purpose of this evidence was to identify the appellants as the occupants of the car on the night of the assaults and, therefore, as the *446 assailants of the prosecutrix. Each of the appellants admitted that they were with the prosecutrix on said night and were with her in said car, and each further testified that he had sexual intercourse with her while in said car. The testimony of the police officer, therefore, as to the number of the car given to him by the prosecutrix could not have resulted in any injury whatever to the appellants.
[9] The appellants requested the court to instruct the jury that, "While it is true that a conviction may be had upon the testimony of the prosecuting witness alone, if it be sufficient to be accepted by the jury as truth, for this reason it is the duty of the jury in such a case to carefully scan the testimony of the prosecuting witness and to view the same with caution." Our attention has not been called to any authority holding that it was error in cases of this kind to refuse to give a cautionary instruction such as that proposed by appellants. The subject is considered in California Jurisprudence as follows: "Although there is no statute especially requiring it, the court may instruct the jury to view the testimony of the prosecutrix with caution where she is a child of tender years and her testimony is uncorroborated, since in this class of cases the accused is almost defenseless and ample opportunity is afforded for the free play of malice and private vengeance. On the other hand, the refusal of such an instruction is not error where the prosecutrix is not a child of tender years where her testimony is corroborated." (22 Cal. Jur., p. 408.) While the court refused to so instruct the jury as requested by appellants, it did give the following instruction: "The court further instructs the jury that while it is the law that the testimony of the prosecutrix should be carefully scanned, still this does not mean that such evidence is never sufficient to convict." This instruction is in almost the precise language as that given in People v. Liggett,
We find no reversible error in the record, and are of the opinion that the judgment and order denying appellants' motion for a new trial should be affirmed, and it is so ordered.
Conrey, P.J., and Hahn, J., pro tem., concurred.