Opinion
Crim. No. 501.
May 18, 1914.
APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.
The facts are stated in the opinion of the court.
W. D. Crichton, and C. K. Bonestell, for Appellant.
U.S. Webb, Attorney-General, and J. H. Riordan, Deputy Attorney-General, for Respondent.
This is an appeal from a judgment of conviction of the defendant of the crime of rape, perpetrated by him upon the person of his thirteen year old daughter. It is not necessary and would not be edifying to review the evidence in this case. The appellant concedes that the proofs presented by the prosecution would have warranted a conviction of an attempt to commit rape. We think the evidence goes further, and was sufficient to have justified the jury with the parties before it in finding the defendant guilty of the higher crime, in view of the provisions of the Penal Code relating to this offense: "The essential guilt of rape consists in the outrage of the person and feelings of the female. Any sexual penetration, however slight, is sufficient to complete the crime." (Pen. Code, sec. 263.)
The only other point relied upon by the appellant is that of misconduct on the part of the district attorney in commenting in his argument to the jury upon other illicit acts of the defendant, done or attempted upon other members of his family. We think there is sufficient in the record to have warranted the insinuation of the district attorney that this was not the first time that the defendant had attempted the commission of this bestial and revolting crime.
The judgment is affirmed.
Lennon, P. J., and Kerrigan, J., concurred.