Opinion
Crim. No. 676.
November 4, 1919.
APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. J. A. Allen, Judge. Affirmed.
The facts are stated in the opinion of the court.
J. F. Pryor and Lamberson Lamberson for Appellant.
U.S. Webb, Attorney-General, Joseph L. Lewinsohn, Deputy Attorney-General, and Jerry H. Powell for Respondent.
Upon an information charging him therewith, defendant was convicted of rape alleged to have been committed in Tulare County upon a female under the age of eighteen years, who was not his wife. Judgment followed, from which and an order denying his motion for a new trial, defendant appeals.
[1] The first point urged in support of a reversal of the judgment and order is insufficiency of the evidence to show that the prosecuting witness was not the wife of defendant. As in the case of People v. Bonzani, 24 Cal.App. 549, [ 141 P. 1062], involving a like question, there was no direct testimony upon the point; nevertheless, the character of the evidence was such as to exclude the existence of such relationship. Not only in his testimony did defendant refer to a person as his wife who was other than the victim of his alleged lust, but the prosecuting witness, whose name was shown to be different from that of defendant, testified that prior to the commission of the offense she never met defendant and did not know him. The conclusion based upon a fair inference to be drawn from such testimony is that reached by the jury, that they were not husband and wife when the crime alleged was committed.
[2] That the testimony of the prosecuting witness was competent to show that she was under eighteen years of age admits of no question. ( People v. Ratz, 115 Cal. 132, [46 P. 915].) At the trial, on her direct examination, she stated that she was sixteen years of age, and, in the absence of any evidence tending to contradict such statement, it must be deemed a sufficient showing that she was under eighteen when the alleged attack was made upon her. [3] The claim that the venue was not established is likewise without merit. The prosecuting witness, in her testimony, identified and described the place where the crime was committed, which place was, by other uncontradicted testimony, shown to be in Tulare County.
[4] It is finally claimed that the court erred in receiving in evidence a garment worn by the prosecuting witness at the time in question, upon which there were certain stains, the nature of which, however, was not shown. Considering the entire testimony, and conceding this evidence to have been incompetent, as claimed, the jury could not have been influenced thereby in reaching its verdict. However this may be, and conceding it was prejudicial, no objection whatsoever was made to the evidence when offered. Having failed by seasonable objection to direct the attention of the trial court to the alleged error, appellant's position in this court is not such as entitles him to complain of the evidence so admitted. ( People v. Wilson, 36 Cal.App. 589, [ 172 P. 1116].)
We find no merit whatsoever in the appeal. The judgment and order denying defendant's motion for a new trial are affirmed.
Conrey, P. J., and James, J., concurred.