Majority
The defendant was tried before a jury upon an information in three separate counts charging incest, rape, and a violation of the juvenile court law. He was found guilty on all three counts and sentenced to Folsom prison on the first and second and given a suspended county jail sentence on the third. He appeals from the judgment and from the order denying a new trial.
His first ground is the inherent improbability of the evidence of the prosecutrix. She had been living for many years with her father, her brother and her grandmother at' the latter’s home. She testified to an act of intercourse on August 31, 1935. She was then sixteen years old. A few days later she left her grandmother’s home and went to work at a “speakeasy” operated by Mr. and Mrs. Esparza. The defendant, who was the father of the prosecutrix, objected • to her association with these parties, and a fight followed, after which Mrs. Esparza persuaded the prosecutrix to make the charge to the authorities. This occurred in February, 1936, and this was the first complaint which the girl made to anyone about the alleged occurrence in August, 1935. When called as a witness she testified that these relations with her father began when she was ten years old and continued regularly until
In his argument attacking the sufficiency of the evidence the appellant emphasizes the failure of the prosecutrix to make timely complaint of the alleged attack and also the complete lack of any corroborating evidence. Counsel frankly concedes that neither factor is essential to a conviction of the crime charged but he urges that they are persuasive evidence of the improbability of the story of the prosecutrix. There is much force in the argument that it is highly improbable that these relations could have existed for a period of six years without mention to anyone, and grave suspicion is cast upon the story when it is shown that it was only told after trouble had arisen between father and daughter over her relations with others. But these suspicions are not sufficient to support appellant’s plea that the judgment should be set aside. The jury believed the testimony of the prosecutrix, and the trial judge was satisfied to let the verdict stand. We cannot say that the testimony is so inherently improbable that there is no evidence to support the verdict.
Appellant raises the additional point that he is made to suffer excessive punishment because he has been convicted three times of the same offense. There is no question as to the fact. All three counts of the information related to the same act which occurred on August 31, 1935. All the evidence tending to prove each of the three charges described but one act and one set of circumstances. The question thus raised is whether all three verdicts should stand, thereby designating appellant as one convicted of three criminal-offenses within the terms of section 644 of the Penal Code defining “habitual criminals’’ and therefore not eligible for release on parole. The question becomes one of importance to appellant because of the admission at the trial of a prior conviction for which he served a term in the state penitentiary. If the appellant had been brought to trial before the effective date of the 1935 amendment to section 644 the question would have presented some merit, but, since his conviction was had while that section as amended was operative, the question is answered by the amendment itself. That section provides that one shall
The judgment and order are affirmed.
Sturtevant, J., concurred.
Spence, J., concurred in the judgment