People v. Lay

SHINN, Acting P. J.

Elmer Lay was convicted after a court trial of the crime of forcible rape. Upon his appeal he attacks the sufficiency of the evidence to support the finding of guilt.

Defendant Lay, a tailor and presser by trade, is 30 years of age, married and living with his wife. He was driven to a café in Culver City by a neighbor, one Bullerdick, at about 8:00 p. m., and spent some two hours there drinking beer. Bullerdick left the café in the meantime and did not return. The prosecutrix, 27 years of age, weighing 110 pounds, and married to a soldier who was overseas, entered the café at about 10 o’clock and had dinner. It was her intention to go window shopping until time to take a bus at 11:40 p. m. for the Hughes Aircraft plant where she was employed on the midnight shift as a key punch operator, punching time cards. Defendant engaged her in conversation in the café, offered to buy her a drink, which she refused, and left the café with her. He walked beside her for half a block and invited her to take a ride, which she declined. As they crossed an intersecting street defendant took hold of her arm, which alarmed her. She testified that as they proceeded defendant took hold of both of her arms and held them behind her. She saw a woman and two men leaving the café and called to them for help as defendant was shoving her along, but they paid no

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attention to her. Defendant was headed for the Bnllerdiek car which was parked at the curb with Bullerdick waiting in it. Prosecutrix testified that the front door of the car was open and that defendant lifted her from the ground and shoved her into the front seat which he entered after her. She saw a soldier and called to him: “Hey, soldier come here and help me. This fellow is bothering me.” The soldier walked on. Bullerdick then drove around for 20 or 25 minutes. Defendant urged him to drive to some dark spot, which he did, and stopped the car, but changed his mind and drove on and back to the starting point. They then drove to a point on Main Street in Culver City and at about 11:30 p. m. parked in a well lighted block in the main part of town, three or four blocks from the police station. At defendant’s request Bullerdick left the car to take a walk. He placed a cloth over the license plate of the car before departing. Questioned as to his purpose in this he answered, “I just accidentally dropped that thing over there; if there was going to be any trouble I would not be accused of any trouble of any kind.” An act of intercourse was attempted by defendant in the front seat of the car, he then climbed over into the rear seat, prosecutrix either climbed or was pulled into the rear seat and an act of intercourse was in progress when it was interrupted by the appearance of a police officer. As to the foregoing facts there was no material conflict in the evidence. The conflicts in the testimony are the following: defendant testified that prosecutrix accepted his invitation to take a ride, willingly entered the car, accepted his embraces and kisses, consented to the act of intercourse, helped him remove her clothing and climbed into the rear seat at his suggestion. He testified that she was friendly and agreeable at all times. However, he freely admitted that she called for help, as she testified, that he asked “What in the hell are you hollering like that for ?” and that she replied ‘1 don’t know. ’’ And the officer testified that as they stood by the car defendant said “one minute she is willing and the next minute she screams.” He denied using any force upon prosecutrix or threatening her at any time. Prosecutrix testified that while they were driving around she took hold of Bullerdick’s arm and asked him to let her out of the