98 P. 1078 | Cal. Ct. App. | 1908
Defendant was charged in the information with the crime of rape upon a small child under the age of sixteen years. The jury returned a verdict of guilty as charged. Defendant appeals from the order denying his motion in arrest of judgment, from the order denying his motion for a new trial and from the final judgment of conviction.
1. Defendant was convicted as an accessory before the fact. The prosecutrix was the stepdaughter of defendant. There is no evidence that defendant had sexual intercourse with her or that he was present at the commission of the crime, but there was abundant evidence that he aided and abetted its commission by one Alon Wheeler, a youth of about seventeen years of age. Defendant's contention is that because he was not personally present when the crime was committed the evidence must be held to be insufficient to justify the verdict (citingPeople v. Schoedde,
The evidence was that defendant on several occasions solicited Wheeler to have sexual intercourse with the defendant's stepdaughter; he brought them together under circumstances calculated to arouse their animal passions and to bring about his wicked design; he advised Wheeler to procure vaseline to be used in the act of coition, if found necessary, and he also procured medicated capsules or suppositories and gave them to the girl, and instructed her in Wheeler's presence how to use them to prevent conception. The evidence is altogether too indecent and revolting to be here recorded. It was said in People v. Dole,
2. The act charged in the information was alleged to have been committed in Sonoma county, of which the proof was sufficient. It is urged as error that the commission of a like prior offense between the prosecutrix and Wheeler was allowed to be proven over defendant's objection. There was evidence that about Christmas, 1907, defendant took his stepdaughter and Wheeler to San Francisco, as the evidence showed, in furtherance of his said design previously urged upon Wheeler. They occupied a small room in which was one bed, and all three slept in it. The second night they occupied a different room in which were two beds; defendant slept in one and Wheeler and the girl the other. The conduct of the defendant there showed conclusively that it was in furtherance of his design that these two young people were taken to San Francisco by him, and the evidence as to what took place was limited by the court "for the purpose of showing plans and designs." The evidence was admissible as acts of lascivious conduct and sexual intercourse with defendant's knowledge, and were admissible whether committed before or after the particular act charged. (People v. Morris,
3. An instruction was asked by defendant and refused by the court to the effect that he could not be found guilty unless present at the time of the sexual intercourse charged. For the reasons already stated, the instruction was properly refused.
4. It is also contended that the information was filed while the grand jury was in session, and that under section
The judgment and order are affirmed.
Burnett, J., and Hart, J., concurred.