People v. Amadio , 25 Cal. App. 729 ( 1914 )

THE' COURT.

We are satisfied that none of the points made in support of the appeal is sufficient to warrant a reversal. The contention that the testimony is inherently improbable is based entirely upon claimed contradictions and inconsistencies in the testimony of the prosecutrix. Contradictions and inconsistencies in the testimony of a witness alone will not constitute inherent improbability. The best that can be said in favor of the argument in support of the appeal is that there is a pronounced conflict in the testimony offered upon behalf of the prosecution, but it is only a conflict ; and whether it appear in the evidence offered on behalf of the people or in the evidence adduced upon the whole case, it will not constitute a ground in this court for a reversal of the judgment.

We see no prejudice to the defendant in the conduct of the district attorney that will justify this court in reversing the judgment. Whatever was said and done by the district attorney in the first trial of the case may or may not have been by way of trapping the defendant into an inadvertent answer ; but however that may be, the district attorney was within his rights when in an attempt at impeachment he called the attention of the defendant upon the second trial of the case to his testimony given upon the prior trial.

The district attorney’s references to counsel were purely personal and evidently made in the heat of battle, and we fail to see how they operated to prejudice the defendant.

With reference to the contention that the proof adduced at the trial is at variance with the allegations of the information with respect to the date of the commission of the alleged offense, we are satisfied that the district attorney had the right to elect, and did elect, upon the suggestion of the counsel- for the defendant, to rest upon a particular transaction as the foundation of his case; and that the defendant through his counsel acquiesced in that election. No particular harm, therefore, came to the defendant by reason of selecting a date different from that alleged in the information. Moreover, we believe it to be the general rule that if the act is shown to have been committed prior to the filing of the information and within the period of the statute of limitations, no complaint can be made here upon the ground of a variance. Even if a variance had occurred it was incumbent upon the defendant, in view of the election made, to show that he had suffered by that variance or was taken by surprise, and that injury to him resulted therefrom.

We are satisfied from a review of the evidence, direct and circumstantial, that it is sufficient to warrant the verdict of the jury.

The judgment and order appealed from are affirmed.