Lewis

Defendant was accused by information, tried by a jury and convicted of the crime of rape committed on April 17, 1911, upon a child under the age of sixteen. He appeals from the judgment of conviction and from the order denying his motion for a new trial. The verdict was, “Guilty of rape as charged. We recommend him to the mercy of the court.” He was sentenced to imprisonment for ten years.

The defendant being unable to employ counsel, the court appointed Mr. Ben Berry as his attorney, who conducted the defense at the trial with zeal and ability, and is prosecuting this appeal with apparent belief in the innocence of his client.

The prosecutrix is defendant’s step-child and at the time of the alleged offense was of the age of thirteen years. Defendant was then and had long been afflicted with weak and inflamed eyes, nearly blind, and deprived of one leg and was at times under treatment by a physician, although the evidence did not show lack of copulative capacity. He was living in Stockton with his mother, Mrs. Sarah Lewis, and his married sister, Mrs. Turner, and three younger brothers and sisters, before his marriage with the mother of the prosecutrix, Mrs. Emily Hamilton, then…