Biescar

Defendant was convicted of the crime of rape, perpetrated by means of force and violence. He appeals from the judgment and from an order of the trial court denying his motion for a new trial. [1] Appellant insists vigorously that the evidence was insufficient to support the verdict of guilty. He makes no denial that he had sexual intercourse with the complaining witness at the time fixed in the charge against him, but contends that the act was performed with her full *Page 207 consent and that she submitted most willingly to his embraces. As there are some features of the evidence which tend strongly to support this claim of appellant we deem it necessary to set down in some detail the occurrences which led to his conviction. Both appellant and his alleged victim were members of a coterie of young people who seem to have conducted themselves with great freedom in their interrelations. Some of the crowd, perhaps most of them, knew each other only by their given names or by "nicknames." At the period which is of interest here the prosecuting witness, known to her associates as Pats, was nineteen years of age. One of her girl friends, to whom we shall refer hereafter as Rose, and who…

On petition for a rehearing of this cause it is insisted that we have exceeded our powers under section 4 1/2 of article VI of the constitution. It is said in the petition: "In the opinion of this court it is quite evident that it has not confined itself to the question of whether the evidence is close, that is, whether from the evidence for the prosecution and the defense it is doubtful whether appellant committed the offense, but has launched upon an attack of the reputation and character of the prosecutrix." It is difficult to perceive, as it seems to us, how this view of our opinion can be taken, but as language often appears clearer to the writer of it than to the reader, and as our expressions may seem as lacking in clarity to others as they do to petitioner, we shall endeavor to make ourselves more plain. After the examination of the record, which is required by the constitution, we came to the conclusion that "the evidence is close" and that "it is doubtful whether appellant committed the offense" charged against him. The improbable character of the story of the prosecutrix was one of the factors leading to this conclusion. We do not scruple to say that we do not believe…

I dissent. The contested points in this case have been the subject of many decisions, among which there has been considerable conflict. That there is a conflict in the California decisions is pointed out in State v. Apley, 25 N.D. 298 [48 L.R.A. (N.S.) 269, 141 N.W. 740 ]. It may be asserted without question that the weight of authority is contrary to the rule expressed in the foregoing opinion which is sustained by certain decisions in this state. It has been held that in a prosecution for forcible rape the defendant may show that the prosecutrix has had illicit relations with other men. ( People v. Shea, 125 Cal. 151 [ 57 P. 885 ].) However, it is there conceded that this ruling is against the weight of authority elsewhere, and the decision is based upon that rendered in People v. Benson, 6 Cal. 221 [ 65 Am. Dec. 506 ], which to my mind is a most ill-considered opinion. This also was the view of Mr. Justice McFarland, who dissented in the Shea case. Of the authorities cited in the last-named case, I regard none as in point. When it is said that a prosecutrix in a case of this nature puts her chastity in issue by merely testifying that she resisted the defendant's force, and the…