215 P. 907 | Cal. | 1923
The defendant was convicted in the court below of the crime of seduction under promise of marriage. He seeks to have the judgment there rendered reversed upon the ground that the sentence was not pronounced within the time prescribed by section
We are satisfied that section 4 1/2 of article VI of the constitution operates to prevent the granting of a new trial for the error, if any, specified. This section of the constitution provides that "No judgment shall be set aside, or new trial granted, in any case, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."
[1] The failure to impose the sentence within the time specified by section
We see no good reason for excepting this particular error from the general provisions of section 4 1/2 of article VI of the constitution. After an examination of the entire cause, *225 including the evidence, we are satisfied that the error complained of in the instant case did not result in a miscarriage of justice. It will not, therefore, suffice to warrant a reversal of the judgment for the purpose of having a new trial.
[2] The contention of the defendant that there is no evidence tending to prove that the sole and only consideration for the consent of the complaining witness to the sexual intercourse was the defendant's promise of marriage is without merit. This contention is predicated upon the fact that the complaining witness when questioned as to whether or not the defendant's promise of marriage was the only inducing cause of her consent, replied, "I liked him." This answer is not, however, necessarily irreconcilable with the theory that the act of sexual intercourse would not have been accomplished without, or in the absence of, such promise, and that the promise was the only inducement. There is in the record before us ample evidence to support the finding that the defendant had on numerous occasions promised to marry the complaining witness and had discussed the question of marriage with her in the presence of her sisters and her brothers-in-law and with them. There is also the direct testimony of the complaining witness that on the occasion of the first act of sexual intercourse the defendant took her to a rooming-house in Los Angeles and that at that time "he asked me to give up, that he was going to marry me in a few days."
It was held in People v. Wallace,
Judgment affirmed.
Myers, J., Seawell, J., Kerrigan, J., Waste, J., Lawlor, J., and Wilbur, C. J., concurred. *226