People v. Ramirez

[467]

McCOMB, J.

—Defendants appeal after trial by jury from judgments of guilty of (a) robbery in the second degree, and (b) rape. They also appeal from orders denying their motions for a new trial.

Viewing the evidence most favorable to the prosecution

(People

v.

Buhes,

90 Cal. App. 657, 659 [266 Pac. 558]), the facts in the instant case are:

November 28, 1936, prosecutrix, Consuela Apodaca, at about 10:30 P. M., was waiting for a street car at the intersection of Gallardo and Maey Streets in the city of Los Angeles, when defendants stopped their car and forced her to accompany them, driving to the rear of a garage, where each forcibly and against her will performed an act of sexual intercourse with her and at the same time took from her a wrist watch. After the foregoing acts had taken place she escaped from them.

Defendants rely for reversal of the judgment on the following propositions:

First: The evidence is insufficient to sustain the judgments.

Second: The trial court committed prejudicial error in failing of its own motion to instruct the jury relative to the law on (a) the defense of alibi and (b) the lesser and included offenses.

Third: the trial court committed prejudicial error in giving certain instructions to the jury.

Fourth: The district attorney committed prejudicial error in his argument to the jury.

As to defendants’ first contention, we have examined the record and are of the opinion there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to sustain the findings of fact upon which the judgment of guilty as to each count was necessarily predicated. We therefore refrain from further discussion of the evidence.

(Thatch

v.

Livingston,