ceeding. The jury are instructed that if the defendant has neglected or refused to beccme a witness in his own behalf, such fact or circumstance cannot in any manner prejudice him in this trial and you are not to consider such fact or circumstance as any evidence against him in this trial."

Appellant cites People v. Cuff, 122 Cal. 589, [55 Pac. 407], and People v. Charles, 9 Cal. App. 338, [90 Pac. 383], in which latter case the Cuff case was commented upon and in which case also a petition for hearing in the supreme court was denied January 12, 1909. In the Cuff case the instruction complained of was given and also a similar instruction to the one last above quoted, wherein the court said to the jury that "no inference of guilt can be drawn against him (defendant) for a failure to testify in his own behalf." After the admonition given by the supreme court in the Cuff case that, "in criminal cases the proper occasions are so few, and the improper occasions are so many, that it were best they should be given rarely, if at all," we must infer that the instruction found its way to the jury through inadvertence. But this fact cannot lessen the prejudicial effect it may have had upon the jury.

We think, however, that the rule established by the amendment to our constitution (art. VI, sec. 42) was designed to meet just such a case as this and should be applied at this time. It reads: "No judgment shall be set aside, or new trial granted in any criminal case on the ground of misdirection of the jury or the improper admission of or rejection of evidence, or for error as to any matter of pleading or precedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' Adopted October 10, 1911.

The instruction under consideration did not go to the degree of the crime as did the other one, which latter admitted the crime of larceny but gave the jury the right to pass upon the degree whether grand or petit larceny, and this was a fact in the case as to which the defendant had the right to the verdict of the jury, had there been evidence applicable. It may be that the constitutional amendment was not designed to take away such right, where there is evidence reasonably tending to establish a different crime or a crime of less degree

There is

than that of which the defendant was convicted. a difference between misdirecting the jury and in refusing to direct them correctly in matters as to which defendant is entitled by right to have the jury instructed. In the instance before us the jury were misdirected, from which it is urged. that the jury were prejudiced by the fact that the defendant offered no evidence, whereas he might have himself testified or have called his confederates. There were in fact no other witnesses of the transaction whom he could have called. The evidence was convincing that the crime was committed. Defendant does not challenge the evidence except to claim that he should have had an instruction as to what constitutes petit larceny. After an examination of the entire cause, including the evidence, we cannot say that the error complained of resulted in a miscarriage of justice.

The judgment and order are affirmed.

Hart, J., and Burnett, J., concurred.

[Crim. No. 408. First Appellate District. October 4, 1912.] THE PEOPLE, Respondent, v. LAJOS VON PERHACS, Appellant.

CRIMINAL LAW-RAPE-SEXUAL INTERCOURSE WITH GIRL UNDER SIXTEEN -SUPPORT OF VERDICT.-Upon a prosecution for rape committed by the defendant by having sexual intercourse with a young girl under sixteen years of age, who was not the wife of the defendant, it is held that the verdict of guilty of the offense charged is supported by the evidence, not only of the prosecutrix, but also of the uncontradicted evidence of an unimpeached witness to whom the defendant's guilt was practically admitted, while in jail.

ID.-CREDIBILITY AND WEIGHT OF EVIDENCE-PROVINCE OF JURY AND

JUDGE. The credibility and weight of the evidence is within the province of the jury, in the first instance, and when the verdict of guilty as charged has been rendered, it rests solely with the trial judge, in passing upon the motion for a new trial, and the order of the court in denying a new trial, after such verdict, will rarely be disturbed upon appeal.

ID.-SUFFICIENCY OF EVIDENCE WHEN DISTURBED UPON APPEAL.-The sufficiency of the evidence to support the verdict, will not be disturbed by the appellate court, save in those rare cases where it obviously appears that the testimony upon which the conviction was had is in and of itself, or when considered with the undisputed facts of the case, so inherently improbable as to be impossible of belief, and therefore must be considered in effect to be no evidence at all. ID.-MOTION FOR A NEW TRIAL-NEWLY DISCOVERED EVIDENCE-CUMU

LATIVE EVIDENCE-IMPEACHMENT OF WITNESS-MOTION PROPERLY DENIED. Where a motion for a new trial, made for newly discovered evidence, shows that such evidence is merely cumulative, and of a character impeaching the testimony of a witness for the prosecution, it shows, in its entirety, that the ground of newly discovered evidence is insufficient, and that the motion was properly denied.

ID. EVIDENCE OF GOOD CHARACTER OF DEFENDANT-PROPER INSTRUCTION. Where there was evidence of the good character of the defendant, as to which a requested instruction was given, the court also properly instructed the jury that if, after weighing all of the evidence including that of the good character of the defendant, the jury believed him guilty beyond a reasonable doubt, they should bring in a verdict accordingly notwithstanding the fact that the defendant had previously borne a good reputation.

ID. PROPER INSTRUCTION AS TO TESTIMONY OF PROSECUTRIX.-The court properly instructed the jury, that although they should be cautious in accepting the uncorroborated testimony of the prosecutrix, nevertheless they were not required to acquit the defendant merely because her testimony was not corroborated, and that if the jury are satisfied beyond a reasonable doubt from her testimony, that the defendant had sexual intercourse with her, within the meaning of the allegations of the information herein, it will be your duty to resolve that question of fact on the side of the people, notwithstanding no other witness has testified to the same effect.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. William P. Lawlor, Judge.

The facts are stated in the opinion of the court.

Philip C. Boardman, and A. L. O'Grady, for Appellant.

U. S. Webb, Attorney-General, and J. H. Riordan, for Respondent.

20 Cal. App.

LENNON, P. J.-The defendant in this case was convicted of the crime of rape. The information charged the defendant with having committed an act of sexual intercourse with a female child who was at the time under the age of sixteen years and not his wife. The defendant has appealed from the judgment and from an order denying him a new trial.

The insufficiency of the evidence to support the verdict, the alleged erroneous modification of certain requested instructions, and the refusal of the lower court to grant a new trial upon alleged newly discovered evidence are the only points urged for a reversal.

It is earnestly insisted upon behalf of the defendant that the verdict of the jury is not supported by the evidence, because the testimony of the prosecuting witness taken as a whole was so highly improbable that it is unworthy of belief.

The facts upon which the prosecution sought and secured a conviction are substantially as follows: At the age of thirteen years the prosecutrix was placed by her father in the home of and under the care and control of the defendant. The defendant was the father of several minor children, two boys and a girl, all of whom resided with him. The prosecutrix remained in the defendant's home and under his control for a period of two years or thereabouts, during all of which time she was cared for and treated as a member of his family. When the prosecutrix first entered the home of the defendant she slept in the parlor of his residence, but shortly thereafter she was assigned by the defendant's mother-in-law-who apparently was also a member of his family-to a couch, which was located in the same room that the defendant and his wife occupied as a sleeping apartment. The prosecutrix was but fifteen years of age at the time the defendant is alleged to have had intercourse with her. Her story in effect was that shortly after she was received into the home of the defendant he frequently fondled and caressed her. Sometimes this would occur when she was alone with the defendant, but oftentimes the defendant kissed and caressed her in the presence of his wife. Finally the defendant, on the sixteenth day of May, 1911, after he had retired with his wife for the night, and after the lights in the apartment had been extinguished, left his bed, went over to the prosecutrix, who had also retired, and sought her permission to share her bed. To this the pros

ecutrix objected and audibly protested. He pleaded, hɔwever, with her, and finally, upon the assurance of the defendant's wife that no harm was meant, she assented.

Without going into further details the defendant on this occasion, notwithstanding the presence of his wife in an adjacent bed, eventually succeeded in accomplishing an act of sexual intercourse with the prosecutrix. Upon four succeeding nights the conduct of the defendant was repeated. Subsequently it developed that the prosecutrix was pregnant, and in course of time she gave birth to a child.

Upon the trial the defendant and his wife both flatly contradicted the testimony of the prosecutrix at every point.

In support of the claim that the evidence is insufficient to maintain the verdict it is argued that it is inherently improbable that the defendant would attempt to perpetrate the offense charged against him in the presence of his wife, and that it is altogether inconceivable that the latter, who was the mother of a girl of about the same age as the prosecutrix, would acquiesce in and encourage its commission.

While it must be conceded that there is much force in this contention, it is nevertheless but an argument directed against the weight of the evidence and the credibility of the prose-. cuting witness. Doubtless such an argument was addressed to the jury, and presumably it was by them given the consideration which it deserved.

The weight of the evidence and the credibility of the witnesses are in the first instance peculiarly within the province of the jury when deliberating upon the guilt or innocence of a defendant; and once their verdict has been rendered the determination of such questions rests solely with the trial judge in passing upon a motion for a new trial. His conclusion as to the sufficiency of the evidence to support the verdict will not be disturbed by this court save in those rare cases where it obviously appears that the testimony upon which the conviction was had is in and of itself, or when considered in conjunction with the undisputed facts of the case, so inherently improbable as to be impossible of belief, and therefore, must be considered to be in effect no evidence at all. (Fowden

v. Pacific Coast S. S. Co., 149 Cal. 151, [86 Pac. 178]; De Arellanes v. De Arellanes, 151 Cal. 443, [90 Pac. 1059]; Stout v. State, 22 Tex. App. 339, [3 S. W. 231].)