People v. Bier

WARD, J.

An appeal from the judgment and from the order denying a motion for a new trial. The information alleged an assault with intent to commit rape; also a prior conviction of rape in pursuance of which conviction defendant had served a term in a penal institution. A jury was waived and the case heard by the court.

The complainant, married, and the mother of a nineteen months old baby, testified that on the morning of the date alleged in the information defendant drove an automobile to the rear of her home and “asked me if my husband were at home, and I said no, that he was at work, and then he told me that he had been talking with my husband about the old car we had in the yard and that he said that he had it for sale. He was driving by and he thought he would like to see it. I said ‘You go ahead and take a look at it.’ So he went up to the car just a few feet away. I walked over to the car with him. ... I walked back to the house and he came back and was standing there, and I said ‘Why don’t you go down where my husband works and ask him about the car, if there was some question about it?’ He said, well, he was going into Oakland and he didn’t want to stop that morning, and he said ‘Let me have a piece of paper and pencil and I will write him a note.’ I said ‘Wait just a minute’ and I went into the house. ... I opened the door and slammed the door behind me. I went into the kitchen

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and then into the dining room to get the paper and pencil. I didn’t hear him come in. Just as I turned around I heard him. He was about six feet behind me. ... I turned half way around. I said ‘Here is your paper and pencil.’ He said ‘I don’t want the paper and pencil.’ He grabbed me around the waist with both arms. I immediately resisted. I told him to let go of me. He grabbed me around the neck with the crook of his arm and then he grabbed me with both hands on my throat and started to choke me. . . . We struggled from the dining room across the living room floor and I tried to scream. I did scream. Every time I made any noise he held his hand over my mouth and hit me and he threatened to knock me out if I didn’t stop screaming. The front door was open and I told the dog to bark. I also told him [defendant] I was menstruating. He didn’t seem to hear anything I said. He kept threatening to knock me completely out if I didn’t stop hollering. ... I scratched him on the face at that time. . . . He was trying to drag me into the bedroom. The door was open and I got away from him just slightly and was trying to get out of the front door. He reached over and let me go for just a second and slammed the front door and then I got away from him just far enough to go back in the dining room, near the archway between the living room and dining room, and I had both my arms around his waist and scratched him in the back. ... He had his hand against my chin, forcing my head back. I had to let go, because he hit me on the jaw and then I was knocked on to the chesterfield, with my face down, my stomach down on the chesterfield. He had his stomach to my back. . . . The last time he hit me it stunned me slightly. He asked me if I was going to yell any more. If I did he would knock me out again. I told him I would be quiet and then he had to catch his breath a second or two. At that time I told him I was menstruating and he said ‘You are?’ And my clothes of course were disarranged and my shorts were torn and my underclothes were torn and the sanitary belt and pad I had on was loose and he said ‘Let me see,’ and he looked at the pad then. . . . Then he got up and he and I fought. We were standing right before the big mirror in the living room and he seemed pretty disturbed. . . . I looked at the mirror. I said ‘You almost killed me.’ He put his hands to his face and said ‘Well, you scratched