Elgar

Defendant was convicted of the crime of rape, the prosecutrix being a child of the alleged age of thirteen years. The appeal is taken from the judgment of imprison ment and also from the order denying a motion for a new trial.

Defendant was the stepfather of the girl. By the testimony of the latter it appeared that defendant had, in May, 1917, forcibly seized the prosecutrix and accomplished the act complained of, the time being about 7:30 o ’clock in the evening, and the place a barn on the premises occupied by defendant, to which barn the prosecutrix had gone to give food to a cow kept there. A few days later, according to the statements of the same witness, the act was repeated in the house and repeated again at a later date. Defendant testified, denying the charge made by the child in toto, and offered evidence for the purpose of showing that at the time when it was claimed by the girl the act was committed he was at work more than a mile away, irrigating a field of beets. The prosecuting officer asked the prosecutrix, while on the witness-stand and at the opening of the trial, how old she was. An objection was interposed, the ground stated being “the proper foundation has…