People v. Wessel

Citations

• 98 Cal. 352
• 33 P. 216
• 1893 Cal. LEXIS 925

Syllabus

<p>Criminal Law—Rape—Information—Capability of Committing Offense — Defense.—An information charging a defendant with wilfully and feloniously committing rape upon the person of a female child under the age of fourteen years, implies an averment that the defendant was capable of committing the offense; and it is not necessary to allege that the defendant was a male, or over fourteen years of age, or, if under that age, that he possessed physical ability to commit the offense. If the defendant was incapable of committing the offense, such fact may be shown in defense.</p> <p>Id.— Evidence—Testimony of Prosecutrix—Impeachment—Deposition before Committing Magistrate—Explanation of Discrepancies.—In a prosecution for rape, where, to contradict the testimony of the prosecutrix, who was a child of eleven years, the defense read her testimony before the committing magistrate, it was proper for the court to allow the prosecution to recall her and to ask her to explain the discrepancies,</p> <p>Id.—Instruction—Sufficiency of Evidence of Prosecutrix.—An instruction to the jury, in a prosecution for rape, that “while it is the law that the testimony of a prosecutrix should be carefully scanned, still this does not mean that such evidence is never insufficient to convict. If you believe the prosecutrix, it is year duty to render a verdict accordingly,” is not equivalent to telling the jury that they should convict if they believe the prosecutrix, hut is simply saying that if they believe it they should act upon it as establishing the facts proved by it, and is properly given.</p> <p>Id—Motion for New Trial—Amendment after Denial of Motion.—Where a defendant in a criminal prosecution submitted a motion for a new trial which was denied, and judgment was thereupon pronounced, a motion thereafter to amend the motion for a new trial, by adding the ground of newly discovered evidence, comes too late.</p>