People v. Guernsey

NOURSE, P. J.

The defendants were charged in one' information in two counts — each count charging each defendant with separate acts of rape. Each defendant was found guilty of two acts and both appeal from the judgment and from the order denying them a new trial.

At about 10 p. m. on one of the streets of San Francisco the two defendants took the prosecuting witness and a friend into their automobile on the promise that they would drive them to the Berkeley center of the W. A. C. where they were stationed. Instead the defendants drove them south into San Mateo County, stopping for drinks along the way. After re

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peated advances the girls left the car and started walking along the highway. The defendants drove after them and again persuaded them to enter the car. But the car was turned and defendants drove south to a point near the ocean somewhere in the neighborhood of Half Moon Bay. One of the girls left the car and escaped through a near-by field. The two defendants seized the prosecutrix and put her back in the ear. After severely beating her on the face Henry Guernsey forced her to disrobe and committed the act upon her. His brother then accomplished a similar act. After driving northerly for about a half an hour the same act was repeated by each defendant. When she escaped from the car she found a house in the outskirts of the city of Belmont from where the authorities were notified. She was taken to the Dibble Hospital near Menlo Park where at 5 a. m. she was examined by the physician in charge. He testified fully as to the contusions upon her face and thighs, which were not more than a few hours old, and also to the positive evidence of recent intercourse.

There is no contention that the evidence is not sufficient to support the charge of forcible rape. Only one of the defendants appeared as witness. He testified that the acts were done with the consent of the prosecutrix. But her testimony about the force used finds corroboration in the convincing testimony of the medical witness.

The first attack upon the judgment is that since each count of the information charges both appellants jointly of a simple act of rape, they could together only be found guilty of two acts whereas they were found guilty of four acts.