66 Cal. 597, 20,036, People v. Mayes

• Docket Nº: 20,036
• Citation: 66 Cal. 597, 6 P. 691
• Opinion Judge: MORRISON, Judge
• Party Name: THE PEOPLE, Respondent, v. E. MAYES, Appellant
• Attorney: A. J. King, H. T. Gage, and Howard & Roberts, for Appellant. Attorney General Marshall, George M. Holton, Stephen M. White, and Wells & Lee, for Respondent.
• Judge Panel: JUDGES: In Bank. Morrison, C. J. Sharpstein, J., concurred. McKee, J., concurred in the judgment. Thornton, J., McKinstry, J., concurring. Myrick, J., dissented from the judgment, and from the reasons given therefor. THORNTON; McKINSTRY
• Case Date: April 23, 1885
• Court: Supreme Court of California

Page 597

66 Cal. 597

6 P. 691

THE PEOPLE, Respondent,

v.

E. MAYES, Appellant

No. 20,036

Supreme Court of California

April 23, 1885

Rehearing denied.

Appeal from a judgment of the Superior Court of the county of Los Angeles, and from an order refusing a new trial.

COUNSEL:

A. J. King, H. T. Gage, and Howard & Roberts, for Appellant.

Attorney General Marshall, George M. Holton, Stephen M. White, and Wells & Lee, for Respondent.

JUDGES: In Bank. Morrison, C. J. Sharpstein, J., concurred. McKee, J., concurred in the judgment. Thornton, J., McKinstry, J., concurring. Myrick, J., dissented from the judgment, and from the reasons given therefor.

OPINION

MORRISON, Judge

The defendant was convicted of the crime of rape. The first ground on which the reversal of the judgment is sought is, that the evidence was insufficient to justify the verdict of the jury. The evidence was prima facie sufficient, and it was a question for the jury to determine how far the evidence was worthy of belief; therefore, on this point, we find nothing which would justify us in interfering with the verdict. The court did not err in instructing the jury that the consummation of the offense might be shown by circumstances and the surroundings. Neither was it error to tell the jury that

Page 598

"they had a right to consider the relation existing between the parties, as tending, in some degree, to show that the prosecutrix had a right to trust herself to the defendant without fear of molestation or harm from him." If it was a circumstance of any importance in the case, we think the instruction of the court correct. Surely, the prosecutrix had a greater right to repose confidence in the husband of her sister than in a stranger. We find no substantial error in that portion of the charge relating to resistance on the part of the prosecutrix. (2 Bish. Crim. Law, 1122; Whart. Amer. Crim. Law, 1141.)

The charge on the question of drunkenness seems to us in accord with the law as laid down by the Supreme Court in several cases, and [6 P. 692] was certainly as favorable to the defendant as the established doctrine on that subject would warrant. The court said to the jury:

" While it is the law that the testimony of the prosecutrix should be carefully scanned, still this does not mean that such evidence is never sufficient to convict. If you believe the prosecutrix, it is your duty to render a verdict accordingly."

The prosecutrix had testified to the existence of all the facts...