People v. Nanez

GRIFFIN, J.

Defendants and appellants, brothers, were charged with and were convicted by a jury of the crime of burglary, first degree, with intent to commit rape.

On the night of July 30, 1947, Mrs. Bertoldo lived with her husband and two daughters, Virginia, aged 15, and Helen, in a little house in Visalia. About 12 o ’clock midnight, someone came to the kitchen, turned on the light, closed the bedroom door leading to the bedrooms occupied by her and her husband. Virginia was sleeping on a couch in an adjoining room. The screen door was opened and a chair was put against it to hold it open. Mrs. Bertoldo coughed. She then heard someone run out through the kitchen and turn out the light. She arose and noticed the two defendants outside talking. She latched the kitchen door and ran to the nearby home of her son for help. Defendant Joe Nanez, a nephew of Mrs. Bertoldo, came up to her and said he wanted to see his Aunt Teresa. She told him he better leave or he would wake up in jail. Defendants left in the ear. She closed the doors, latched them, and went to bed. About 3 a. m. she was awakened and opened the curtains leading to Virginia’s room. She heard her scream and defendant Nanez had her by the neck choking her; he ran out of the house, jumped in the car which was “ready to pull out right away” and the two defendants left. The officers were called. A neck chain and cross Virginia was wearing was found broken on her bedroom floor.

Virginia testified that she did not hear defendant (Joe) the first time he came to her house that night; that sometime during the night, however, she found she could not breathe and she was suddenly awakened when Joe grabbed her by the neck.

[780]

Officers appeared at the home and the family were all excited. The door casing near the latch had been defaced with a knife. The defendants were found parked in their car asleep several miles up the road. They were placed under arrest. At that time there was no evidence of their staggering or of their drunkenness.

At the trial strenuous objection was made to the admission of their claimed conversation with the officers and of a signed written statement. A conversation with Corralez was related by the officer who stated that Corralez told him that Joe had suggested they go out to the Bertoldo residence and get Virginia and take her to a quiet place he knew of and at that point they were to rape her; that they went to her residence; that he remained in the car; that Joe gained entrance to the house in some manner unknown to him; that Joe said he would keep Virginia quiet but that Joe didn’t do a very good job because he heard her scream; that the lights came on and Joe ran out to the ear, jumped in and said: “Step on the gas. We better get out of here.” It was stipulated that this statement was binding only against Corralez, and the court so instructed the jury. On cross-examination the officer testified that Corralez stated that about a week before, Joe had gone to his cousin’s home, knowing his cousin was uptown, and sat on the bed occupied by the cousin’s wife; that the cousin came home and they had a fight.