People v. Mullen

MOORE, P. J.

Defendant appeals from an order denying his motion for a new trial after a judgment of conviction of the crime of making an assault with intent by force and violence to commit rape. The appeal is predicated upon the insufficiency of the evidence. There is no other issue. The only two witnesses who testified were the prosecuting witness and the defendant.

Disregarding the testimony of defendant, the record supporting the judgment is the testimony of the prosecutrix which in substance follows: On November 28, 1940, in response to an advertisement, I called at the appellant’s dance studio where I first rehearsed a few dance numbers with him.

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He wanted two girls, one for team work and one for solo work. He asked me to return the next day at 2 o’clock in the afternoon. On the following morning, by telephone, he offered to call at my home for me, which offer I declined but I did meet him at his studio according to appointment at 2 p. m.; he took me thence to the third floor of a building on Hill Street between Second and Third Streets. I waited in the hallway, while he arranged for a nearby room. The room procured was 30x25 feet and it contained no furniture but a piano. We rehearsed some tango numbers and lifts for the adagio, during which appellant hoisted me by the knee and ankle when I buckled up and came down upon him. He remarked that I was a little stiff and would have to limber up and that so far as he was concerned the team work was out. He suggested that I do solo work, which would require dancing partially nude. I replied that I disliked the idea of doing nude dances. He asked me to remove my dress that he might see my figure. I demurred; he insisted and I again stated I did not like nude dances. He then took hold of my dress and pulled it to my waist; I pushed his hand away. He then put his right hand on my breast and his left hand into my private parts while he stood only six inches away. He put his right arm around me and his fingers into my private parts. I begged him to let me go. His face looked peculiar and white. He released me but I feared to leave. He again grabbed me and pulled me to him on the bench. He drew me close and tried to kiss me. He held me so tight that he was forcing the breath out of me. He took me by the waist, pulled me toward him, forced me to sit next to him on a sort of bench and kept kissing me and putting his hand at my breast. In his struggle with me, my necklace was pressed down by his arm making a mark across my neck. He kept telling me something about loving me and just to stay there with him. After considerable time, he released me and told me to leave my coat there but I grabbed my coat, ran out, went down the elevator and went home. Defendant denied the occurrence of all of the offensive acts mentioned.