People v. Ford

DOOLING, J.

Appellant Ford and one Glover were jointly charged with rape by force and violence and were both convicted by a jury.

It is claimed that the evidence did not establish the necessary element of resistance by the complaining witness. The complaining witness met appellant in a tavern in San

[582]

Francisco. Appellant about midnight agreed to drive the complaining witness- to her home. These two and Glover got into appellant’s automobile and instead of driving toward the complaining witness’ home appellant drove across the San Francisco county line and into some sparsely settled hills in San Mateo County. On the way Glover with no apparent provocation brutally struck the complaining witness about the face and mouth several times and seized her purse from her. The car was stopped in the hills and appellant put his arms around the complaining witness’ torso and held her down while Glover accomplished two successive acts of copulation. She pleaded with them to desist, but after the brutal beating that she had received “I was scared. I was afraid to move. I did not know whether to try and get out or to sit there or what to do.” The evidence amply supports the verdict. “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 case depends upon the circumstances of that ease, 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 noneonsent and actual resistance reasonably manifest.”

(People

v.

Burnette,

39 Cal.App.2d 215, 224 [102 P.2d 799];

People

v.

Lay,