171 P. 697 | Cal. Ct. App. | 1918
The appellant was convicted of the crime of rape and was sentenced to not less than fifty years in the state prison. The appeal is from the judgment and from an order denying a motion for a new trial.
There is evidence in the record which tends to show that the appellant committed two acts of rape upon the prosecuting witness, one about May 6th, the other about May 14th, *115
both in 1917. The information charges that the act was committed on or about the sixth day of May, 1917, and the district attorney told the jury, near the commencement of the trial, that he selected the act of May 6th, or thereabouts, as the one upon which he would ask for a conviction. This statement was made in connection with a remark of the court showing the reason for the admission of evidence as to the act of May 14th. Evidence of that act was of course admissible to show the lascivious disposition of the appellant toward the prosecuting witness, and the consequent probability of the commission of the act of May 6th (People v. Koller,
It is true that in this case the court told the jury, in another instruction, "if you believe . . . that the said Jim Elgar, on or about the sixth day of May, 1917, . . . did willfully, unlawfully and feloniously have and accomplish an act of sexual intercourse with and upon the person of one Clementina Elgar, . . . you should find him guilty as charged in the information." That, however, does not materially help the situation. The mention of May 6th in the instruction just quoted did not eliminate the damage done by the other instruction, in which the jury was plainly told, without mention of dates, however, that they might convict appellant of the commission of the crime charged to have been committed on May 6th if they believed from the evidence that he had committed one on either May 6th or May 14th.
There are other errors shown by the record, but as they pertain to questions which are not likely to come before the court on a new trial we do not deem it necessary specifically to mention them.
The judgment and order are reversed and the cause remanded.
Conrey, P. J., and James, J., concurred.