People v. Newton

ASHBURN, J.

Defendant appeals from conviction of rape of one Annie C. L. It was charged and impliedly found (after a non jury trial) that defendant had sexual intercourse with Annie without her consent and against her will in that she was prevented from resisting by threats of great and immediate bodily harm accompanied by apparent power of execution. (Pen. Code, §261, subd. 4.) Defendant in testifying admitted the fact of intercourse, but claimed that it was had with Annie’s full consent and cooperation.

Appellant’s first point is that the complaining witness’ testimony was inherently improbable because “no act of sexual intercourse could have taken place if appellant and the complaining witness were in the respective positions testified to by the complaining witness.” Examination of the transcript establishes that this claim is without substance, as the trial judge impliedly found. Appellant himself, while admitting the act, gives no postural account which differs from that of the complaining witness. What constitutes inherently improbable evidence is discussed in

People

v.

Headlee,

18 Cal.2d 266, 267 [115 P.2d 427];

People

v.

Stephens,

66 Cal.App.2d 755- 757 [152 P.2d 1019].

Annie testified that defendant choked and hit her and caused her to injure her knee immediately before the raping and that she was afraid to resist. Defendant denies this, but her story is in this respect supported by the testimony of her sister-in-law and the police, who saw the effects of the violence, which effects were photographed by the officers. The court is

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thus confronted with a substantial conflict in the evidence. The duty is imposed upon a reviewing court to “assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence.”

{People