People v. Sharp

ASHBURN, J.

Convicted of forcible rape defendant appeals from the judgment and an alleged order denying his motion for new trial. There is no such order in the record and that attempted appeal must be dismissed.

The appeal presents nothing more than an effort to obtain a reweighing of the evidence by this court, contrary to the governing rule laid down in

People

v.

Newland,

15 Cal.2d 678, 681-682 [104 P.2d 778].

The argument centers upon the question of consent of the prosecutrix. Her testimony is that she was forced and that she resisted as long as she could. Defendant’s version is to the contrary. There is nothing about the prosecutrix’ testimony which stamps it as inherently incredible. (See

People

v.

Huston,

21 Cal.2d 690, 693 [134 P.2d 758];

People

v.

Huston,

156 Cal.App.2d 670, 671-672 [320 P.2d 175].) The testimony of the prosecutrix requires no corroboration in a rape ease (42 Cal.Jur.2d § 97, p. 286), but there is substantial corroboration in this instance — summoning of neighbors and making immediate complaint to them while in a hysterical and disheveled condition, followed by summoning the police. (42 Cal.Jur.2d § 68, p. 255.)

The extent and duration of the resistance to be offered by the assaulted woman is to be determined by her in the first instance. “ ‘The courts no longer follow the primitive rule that there must be resistance to the utmost.'

(People

v.

McIlvain,

55 Cal.App.2d 322, 329 [130 P.2d 131].) ‘The resistance required in each ease depends upon the circumstances of that case, such as the relative strength of the parties, the uselessness of resistance, the degree of force manifested and other factors. The resistance of the prosecutrix need only be such as to make nonconsent and actual resistance reasonably manifest. ’ ”