I concur in the judgment for the reason that it appears that the testimony of the doctor who professionally examined the prosecutrix, and who said that, upon such examination, he found the existence of conditions or evidence indicating that the prosecutrix had been carnally known by some one of the male sex, furnished some corroboration of the child's story that some one had had sexual relations with her. Then there are the provisions of sections 1159 and 663 of our Penal Code, which expressly authorize a verdict of any offense the commission of which is included within that with which the defendant is charged, or (the last mentioned section) a verdict of an attempt to commit a crime, when the defendant is charged with such attempt, notwithstanding that the evidence may show that the crime intended was itself actually committed. The court instructed the jury that, under the law, they were at liberty to find the accused guilty of an attempt to commit the crime of rape, if the evidence was sufficient. It must be assumed, I presume, that the jury acted under that instruction, since the verdict was for an attempt to commit the crime. *Page 550
But, were it not for the provisions of the code sections above referred to, I should say that the verdict necessarily implies that the jury discarded the story of the prosecutrix. I am not prepared to say that the verdict should not be so construed in any event. The prosecutrix unequivocally asseverated that the defendant actually had sexual intercourse with her. The jury say by the verdict that he did not and that the story of the prosecutrix as to the most important fact to which she testified was not true. Under this view, the verdict rests almost entirely upon the story of a witness whose testimony is, to some extent at least, discredited. But, as suggested, the law of this state authorizes such a verdict, and while some doubt necessarily arises as to the verity of the story of the prosecutrix, it seems to me, in view of the testimony of the doctor, that it can hardly be said, justly and as a matter of law, that the verdict is wholly without justification.
With perfect propriety, however, attention may be directed to the fact that in many other jurisdictions the higher courts have refused to uphold verdicts, such as the one here, which have been given in cases charging rape and in which the prosecuting witnesses have positively sworn that the crime as charged was actually committed by the accused. Indeed, in our own state, in its earlier judicial annals, the supreme court frequently displayed a disposition not to uphold convictions in this class of cases where the prosecutrix was not corroborated and where the acts constituting the charge were claimed to have been committed under such circumstances (similar to those here) as to create some doubt of the verity of her story. (SeePeople v. Benson, 6 Cal. 221, [65 Am. Dec. 506]; People v.Hamilton, 46 Cal. 540; People v. Ardaga, 51 Cal. 371;People v. Castro, 60 Cal. 118; see, also, People v. Harden,24 Cal.App. 522, [141 P. 1075].)
A case of singularly cogent pertinency to the present discussion is that of State v. Mitchell, a Kansas case, reported in 54 Kan. 516, [38 P. 810]. In that case the defendant was charged with the crime of rape, but the jury found him guilty only of an attempt to commit that offense. The court reversed the case upon the ground that the verdict was evidently the result of a compromise and founded solely upon the testimony of the prosecutrix who, the court said with much justification, was discredited and disbelieved by the *Page 551 jury as to the most important fact involved in the charge against the accused. I need not take the time to quote from the opinion in that case, but I commend it as involving a forceful and instructive view of the proposition in hand.
The higher courts cannot too often emphasize the importance of the application by those required to determine the question of the guilt or innocence of persons accused of crime of the greatest care and circumspection in considering the evidence in cases of this character, as to which, as a general proposition, it may truly be said that popular prejudice against the accused, by some subtle or inscrutable means, finds lodgment in the jury box. As was well and correctly said, in the case of the People v. Benson, 6 Cal. 221, [65 Am. Dec. 506]: "There is no class of prosecutions attended with so much danger, or which afford so ample an opportunity for the free play of malice and private vengence. In such cases, the accused is almost defenseless, and courts, in view of the facility with which charges of this character may be invented and maintained, have been strict in laying down the rule which should govern the jury in their finding."
A petition for a rehearing of this cause was denied by the district court of appeal on March 15, 1915, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 14, 1915.