Smith v. Superior Court

NOURSE (Paul), J. pro tem.

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Petitioner’s motion made pursuant to the provisions of section 995 of the Penal Code to set aside an information charging him with the violation of subdivision 3 of section 261 of that code (forcible rape) having been denied, the petitioner here seeks a writ of prohibition to prevent the superior court from proceeding to try him upon that information. He asserts that the evidence produced at the preliminary hearing was insufficient to show that the offense charged had been committed, or to establish sufficient cause to believe him guilty of the crime charged.

Inasmuch as the admissions of the defendant and his co-defendant are ample to establish sufficient cause to believe that the defendant is guilty of the offense charged, the only question that it is necessary for us to decide is whether or not the evidence, other than admissions of the defendant and his codefendant, was sufficient to establish the corpus delicti.

The elements of the crime charged by the information here, forcible rape, are: an act of sexual intercourse with a female other than the wife of the defendant, in which the female resists and her resistance is overcome by force. In order to establish the first element, that of sexual intercourse, there must be proof of penetration.

We have come to the conclusion that there was evidence sufficient to establish, for the purposes of holding the defendant to answer, each of the elements of the offense.

The evidence shows that the victim, a Mrs. Stevens, was a woman approximately 80 years old; that at the time of the arrest of the defendants she was in the back seat of an automobile driven by petitioner’s codefendant, and petitioner was riding in the right-hand front seat; that she had bruises on her face, nose and arms, and that there was a moderate amount of vaginal bleeding.

[864]

From the disparity in the ages of the petitioner and the victim the trial court could draw the inference that the victim was not the wife of the defendant. The bruises upon her face, nose and arms, and the presence of blood upon the inner aspect of her thighs and upon her clothing was sufficient proof of the element of force and resistance.

The evidence as to there having been an act of sexual intercourse with penetration is weak but, we believe, sufficient. The testimony of Mrs. Stevens was taken in a rest home where she was confined, and was not taken until nearly six weeks after the alleged occurrence. On