Avena

On information filed by the district attorney of Sacramento County defendant was convicted of the crime of rape upon his twelve year old daughter and was sentenced to fifty years’ imprisonment at Folsom. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

Defendant invites attention to the following three points which he deems sufficient to call for a new trial: 1. That the verdict is contrary to the evidence; 2. Errors of law committed by the trial court; 3. Misconduct of the deputy district attorney.

The facts testified to by the prosecuting witness and her sister were amply sufficient to justify the verdict. The point urged is that both these witnesses admitted that the testimony they gave at the trial was directly contrary to that given at the preliminary examination and that their testimony given at the trial was false. The explanation given by them for this change in their testimony was that they had been told that if their father was convicted he would be sent to the penitentiary and they would be sent" to the detention home or the reform school. There was evidence tending to show that some such representations were made to…