No. 1,648 | Mont. | Oct 14, 1901
delivered tbe opinion of tbe court.
Tbis is am appeal from tbe judgment, and from tbe order denying a motion for a new trial. Tbe defendant was convicted of rape upon bis daughter, who, as alleged, was less than 16 years old at tbe time of tbe commission of tbe alleged crime.
Tbe defendant relies in bis brief upon two assignments: First, that “the jury received evidence out of court inadmissible in court. and, second, that “the evidence is insufficient to sustain tbe verdict.’’ Counsel depends upon bis own affidavits in support of tbe first assignment. There is nothing to indicate that tbe affidavits were used upon tbe bearing of any motion for a new trial, and they do not contain anything to show that the jury did as suggested by tbe assignment.
As to tbe insufficiency of tbe evidence, it is enough to say that there was a substantial conflict of tbe evidence, — that of tbe prosecution being positive and sufficient to support a verdict if the jury believed tbe witnesses' for tbe state, as it must have done. As so often held, tbe question of credibility is one for tbe jury, and not for tbis court.
These being tbe only errors suggested, tbe order and tbe judgment are affirmed. ■ ■ •
Affirmed.