Richards

The appellant in this case was charged by information with the crime of rape, alleged to have been committed by force and violence, and against the resistance, of a female not his wife, in the county of Tulare, on or about the fifth day of July, 1925. The jury returned a verdict of guilty, a motion for new trial was presented which was denied, and this is an appeal from the judgment and from the order denying such motion. The only question here in controversy is as to whether or not the trial court committed reversible error in a statement made by it following protracted deliberation and return by the jury into court for further instructions. We deem it expedient to first relate the predominant facts as they were presented to the jury by the respective parties. It is conceded that on the evening of July 4, 1925, the prosecutrix, the appellant, and a companion of the latter drove from the city of Visalia to Porterville, and thence to Terminus Beach, at the invitation of appellant, and in the latter's automobile; that the appellant and the prosecuting witness danced at the beach, and at about 11:30 P.M. started back toward Visalia; that the third party did not return with them; that…

[1] I concur in the judgment, but on the grounds different from those stated in the foregoing opinion. I cannot escape the conclusion that the trial court erred in the statement made to the members of the jury when they returned to the courtroom after some time spent in deliberating on the case. I think, however, that the error does not require a reversal. If we consider the judge's statement as a recital of the evidence in the cause, it was unfair to appellant. He remarked: "He [the appellant] testifies it [the sexual inter-course] was obtained by the consent of the prosecuting witness." This is the only part of the judge's statement which *Page 39 relates to testimony given on behalf of appellant. On the other hand, he recited in considerable detail, during the remainder of his comment, the testimony produced by the prosecution. It will appear below that the testimony of defendant himself contained matter of detail which could have been given by the judge in connection with his comparatively lengthy statement of the testimony produced by the prosecution. The entire statement was so one-sided as to be unjust to appellant, and it was therefore erroneous, even upon the assumption…