People v. Tollack

VALLÉE, J.

Defendant was convicted by a jury of forcible rape. He appeals from the judgment and the order denying his motion for a new trial. The information charged defendant with having committed the act with force and violence, without the consent and against the will of the prosecutrix, and that she resisted the accomplishment of the act, but her resistance was overcome by force and violence.

Defendant admitted the act. He claims that the evidence

[171]

does not support the verdict in that there was no evidence that the prosecutrix resisted but her resistance was overcome by force or violence, or that she was prevented “from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution.” (Pen. Code, §261(3) (4).)

About 11:30 p. m., as the prosecutrix was walking home on an unfrequented street, defendant stepped from behind a tree in the parkway and accosted her on the sidewalk. Defendant stopped her and would not let her pass. He told her “he was interested in a little loving”; that he had a knife and unless she did what he said he would use it. She testified that defendant “repeatedly mentioned about the knife”; that he “repeated over and over, ‘I’ll start with your face—I have a knife, and I will start with your face, and you do what I say or I will use the knife. ’ ” Defendant had her walk to a secluded spot. He walked behind her. As she walked along, she hesitated; and each time she did, defendant mentioned the knife and said he intended to have what he wanted. She testified that she was in great fear, “ [i]t was my fear of the knife that controlled my whole actions.”

The verdict is sustained by the evidence. If the female resists, but her resistance is overcome by force

or

violence, rape is committed under the conditions prescribed by subdivision 3 of section 261. The gravamen of the offense is the use of force or violence sufficient to overcome the resistance of the female. Bodily injury is not the essence of the offense. The word “force” implies physical power exerted upon a person or thing.

(People

v.

McIlvain,