People v. Kinne

DORAN, J.

The defendant, accused by information of the offense of rape, was found guilty by the court, sitting without a jury. It was stipulated at the trial that the issue should be submitted to the court on the transcript of the evidence introduced at the preliminary hearing. This appeal is from the sentence and judgment, and from the order denying defendant’s motion for a new trial.

The evidence reveals the following facts: the prosecutrix was 22 years of age and a seamstress by occupation. She was a single woman at the time of the alleged attack, but had previously been married. On the night of June 16, 1937, she was waiting for an electric ear in the Pacific Electric Station in North Hollywood. Defendant at that time and place walked up to her and asked her for a match, which she gave to him. She later boarded the car, and the defendant also boarded the same car. They occupied different seats in the car and nothing more was said between them. The prosecutrix left the car at her destination, namely, Laurel Canyon Boulevard; she resided about one-half mile from the street ear track. At this point, although the defendant had paid his fare to a point beyond Laurel Canyon Boulevard, he also left the street car. He walked along the same street as the prosecutrix and in the same direction but on the opposite side of the street for about a block, when he disappeared. The prosecutrix testified that when she was about a block from Califa Street, the street upon which she resided, she heard someone walking behind her. She turned around and as she did so, the defendant grabbed her around the neck and struck her in the mouth and said, “You had better not scream.” The prosecutrix then and there observed that the defendant was entirely nude. Defendant then took the prosecutrix by the hand and pushed her along Laurel Canyon Boulevard, about 100 feet back into a vacant lot under some apricot trees; pushed her down and pulled up her clothes, and completed the attack upon which the alleged offense is based. The defendant then left, whereupon the prosecutrix immediately went out into the street, hailed a passing motorist and told him what had occurred. She was then taken to the North Hollywood police station. She further testified

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that she did not resist because she was scared and was afraid to resist.

Defendant testified, in substance, that the prosecutrix consented to the act and cooperated.