Opinion
Crim. No. 252.
June 28, 1910.
APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. William S. Wells, Judge.
The facts are stated in the opinion of the court.
D.C. Dutton, for Appellant.
U.S. Webb, Attorney General, for Respondent.
Defendant was convicted of the crime of rape for having had sexual intercourse with a girl under sixteen years of age, and appealed from the judgment and order denying his motion for a new trial.
It is first urged that the evidence was insufficient to justify the verdict. It is not claimed that the girl did not give evidence that fully supported the charge, but it is claimed apparently that the evidence was in itself unreasonable, because it appears that the act was committed in the presence and with the approval of the wife of the defendant.
But in addition to the evidence of the girl, the testimony of the landlady of the house was to the effect that she found the girl in the room of defendant and his wife, on the occasion in question, after defendant and his wife had gone to bed. Medical testimony was also given tending to show that the girl had had sexual relations with someone near to the time of the alleged offense. It was for the jury to determine as to the truth of the testimony in the first instance. The judge of the trial court, who also heard and saw the witnesses, has approved the verdict. We cannot say that, as a matter of law, the verdict is not supported by the evidence. ( People v. Moore, 155 Cal. 237, [ 100 P. 688].)
The court did not err in permitting evidence of other acts of intercourse between defendant and the prosecutrix, occurring before the act relied upon for a conviction. In prosecutions for adultery, incest and rape (especially when committed by consent upon persons under the age of consent) other acts of sexual intercourse between the same persons may be proven as showing an adulterous disposition, and thus corroborating the evidence of the substantive charge. ( People v. Stratton, 141 Cal. 604, [ 75 P. 166]; People v. Koller, 142 Cal. 621, [ 76 P. 500]; People v. Castro, 133 Cal. 12, [ 65 P. 13]; Lefforge v. State, 129 Ind. 551, [29 N.E. 34]; State v. Markins, 95 Ind. 464, [48 Am. Rep. 733]; State v. Bridgman, 49 Vt. 202, [24 Am. Rep. 124]; Thayer v. Thayer, 101 Mass. 111, [100 Am. Dec. 110]; People v. Cease, 80 Mich. 576, [45 N.W. 585]; Proper v. State, 85 Wis. 615, [55 N.W. 1035]; People v. O'Sullivan, 104 N.Y. 481, [58 Am. Rep. 530, 10 N.E. 880]; State v. Parish, 104 N.C. 679, [ 10 S.E. 457]; Ramey v. State, 127 Ind. 243, [26 N.E. 818]; People v. Hilberg, 22 Utah, 27, [61 P. 215].)
There is some conflict in the authorities as to the right to give evidence of acts of sexual intercourse occurring after the act upon which the indictment is based; but in this case the evidence objected to related to acts occurring before the act selected as the offense, and was well within the rule allowing evidence of this character.
The language upon this subject, found in People v. Ah Lean, 7 Cal.App. 628, [ 95 P. 380], was evidently inadvertently used, as no authorities were cited upon the question to this court.
The objection that the judgment in the record does not show whether the imprisonment is for twenty years, months or days has been removed upon suggestion of a diminution of the record. The original entry by the clerk omitted the word "years" after the figure "20." After due notice and hearing the entry was corrected to read "20 years." ( People v. O'Brien, 4 Cal.App. 723, [ 89 P. 438].)
It is also contended that the judgment-roll does not show that defendant was present during the trial on the afternoon of February 17, 1910. It does not show that he was not present, and all intendments are in support of the judgment. In other words, the appellant must show error; it will not be presumed. ( People v. Douglas, 100 Cal. 4, [34 P. 490]; People v. Russell, 156 Cal. 450, [ 105 P. 416]; People v. Holmes, 118 Cal. 444, [50 P. 675].)
The evidence as to the alibi relied on by defendant simply raises a conflict with the evidence for the prosecution. In such a case the verdict of the jury is conclusive on this court.
This disposes of all the points presented by appellant, and we have considered them as though the entire record was properly before us. The reporter's transcript, however, is not indorsed or authenticated by the trial judge as required by section 1247A of the Penal Code. Not only should the reporter's transcript be sworn to by him, as required by section 1247, Penal Code, but before it is transmitted to this court it should be authenticated by the trial judge in accordance with section 1247A, Penal Code.
The judgment and order are affirmed.
Cooper, P. J., and Kerrigan, J., concurred.