THE PEOPLE, Respondent, v. F. A. PEERY, Appellant, 26 Cal. App. 143

JAMES, J. Appellant was convicted of the crime of rape and sentenced to serve a term of imprisonment in the penitentiary. Appeals were taken from the judgment and from an order denying a motion for a new trial. Counsel for appellant states that there is an appeal also from an order denying a motion made in arrest of judgment. No separate appeal lies from such an order, although that ruling is subject to review on the appeal taken from the judgment. (People v.

Rogers, 163 Cal. 476, [126 Pac. 143].) The female participant in the alleged crime was a girl of about nineteen years of age, the daughter, by a former marriage, of appellant’s wife. It was alleged that the girl was of unsound mind and incapable of consenting to the illicit act. At a trial previously had appellant admitted the fact as to the intercourse had with the girl, and he at the time of his arrest made the same admission, in effect, to the arresting officer. These statements were proved before the jury.

The grandmother of the girl testified that she had known the latter since her birth and had seen her constantly during a great many of the years following that event, and as often as once a week during the five years immediately preceding the trial. She testified that the girl had always been weak mentally; that she could not be taught to read or spell or do sums in arithmetic, although she was sent to school and every effort made to teach her; that she could not count money and did not know the difference in value between a nickel and a twenty-five-cent piece.

The physician who attended t*he girl upon the occasion of the birth of her child testified that she answered his questions vaguely and contradicted herself several times. He said: “In the dealings I have had with this girl she has appeared to me to be not violently insane or anything of that sort, but she does appear to me to be equipped with a grade of mentality that is insufficient to protect her from the common vicissitudes of life as they are likely to come to us, and on that ground I base my opinion that she is of unsound mind. ...

I don’t consider she is in danger of becoming violent or a menace to herself or to her children or a menace to the people around her. She is suffering from a milder grade of not being sound; I think she isn’t of the ordinary mentality. ” The girl sat in the courtroom and was pointed out and identified by a witness for the benefit of the jury. There was testimony introduced on behalf of appellant in defense of the charge which contradicted that of the prosecution touching the matter of the alleged unsoundness of mind of the girl.

With the question as to whether this contradictory testimony was of preponderating weight, this court has nothing to do; the jury in the case had the right and it was their duty to- finally settle any question arising out of a conflict of the evidence. It is claimed, however, that a question of law is presented on the evidence in the record, for the reason that the proof offered by the prosecution was not sufficient to warrant a finding, as the verdict implies, that the girl was incapable of consenting to

an act of sexual intercourse. Legal consent which will be held sufficient assumes a capacity in the person consenting to understand and appreciate the nature of the act committed, its immoral character and the probable or natural consequences which may attend it. Impaired mentality may exist and yet the individual may be able to exercise reasonable judgment with respect to the particular matter presented to his or her mind. (People v. Griffin, 117 Cal. 533, [59 Am. St.

Rep. 216, 49 Pac. 711].) It will readily appear, then; that the question, as it is involved in the special case presented, became peculiarly a matter for the jury to pass upon. We may make answer to the single query: Were there enough of facts, assuming the truth of the testimony, presented by the prosecution from which the jury could have reasonably concluded that the girl was incapable of consenting to the act committed with her by appellant? It must be said that there was some evidence to justify this conclusion. The grandmother gave a fair history of the girl, dating from infancy.

She told of the difficulty with which the child had been taught even simple things. The physician gave some facts which were relevant when he referred to the vague answers given him by the girl and the inconsistent statements made by her, and as to his opinion derived from an observation of her while she was under his care. Besides this, there was the evidence afforded by the appearance of the girl, which is not illustrated in the record. We must assume, if need be, that her appearance was such as to afford some evidence material to the issue.

When these facts are considered altogether, it cannot be said that the conclusion of the jury in favor of the incapacity of the girl is without support in the evidence. The girl in question was not called as a witness either by the prosecution or the defendant.

In the course of the trial, a juror asked that the girl be examined and the court responded that that was a matter for the attorneys to decide, and counsel for appellant said: “The law says that where they charge ineompeteney to commit a wrong that she can’t testify for the reason that she is incompetent; therefore she isn’t a competent witness.” Then, after some further colloquy between the district attorney, court, and counsel for appellant, the latter said: “We ask the court to instruct the jury that it isn’t to be taken as evidence in the case that the defendant doesn’t call the witness; that’s the law. ’’ No error was committed by the court in refusing to then instruct the jury as desired by appellant.

Either party was at liberty to call the girl to the witness chair and have her sworn, and the mere fact that it was alleged in the information that she was incompetent would not debar her from testifying. Whatever the result of counsel’s effort may have been in that direction on the former trial, it would not afford any justification for neglecting to take any action which he deemed essential for the protection of his client at the trial then being had before a different jury.

The witness would have been competent to testify unless, upon objection and after examination before the court, it had been determined that she was incompetent. It will be. noted that counsel for appellant himself insisted that the witness could not testify because the district attorney had charged that she was incompetent. In this statement he was mistaken as to the law. Alleged misconduct of the district attorney in his argument to the jury is assigned as ground for the claim of prejudicial error. It does not appear in the record as to what the objectionable remarks of the district attorney were.

There are some specifications of error pointing to the alleged misconduct, but none of the statements claimed to have been made by the prosecuting officer are disclosed therein. In the brief it is set forth that the court erred in the making of several rulings as to the admission of testimony, but beyond a statement in the form of a specification of error simply, no argument appears in support of the objections made. However, from an examination of the transcript, it does not appear that the rulings complained of were improperly made. They deserve no further consideration.

Refusal to give several instructions offered on behalf of the defendant is next complained of as amounting to an error on the part of the trial court which resulted to the prejudice of appellant. The instructions as given were very full and complete in their statement of the law as applicable to the particular case being considered. Some of the instructions which were refused might properly have been given, but their effect could not have been more than to add emphasis to the propositions which were stated with sufficient clearness in the body of the court’s instructions.

We find no error in the record justifying an order of reversal in this case. The appellant appears to have been fairly convicted and to be deserving of the punishment meted out to him. The judgment and order are affirmed. Conrey, P. J., and Shaw, J., concurred.