People v. Bennett

GRIFFIN, Acting P. J.

Defendant and appellant was charged in Count I with rape of Mrs. Tow, by force and fear, on January 25, 1955; in Count II, with robbery of Mrs. Karaian; and in Count III with assault with intent to commit rape upon her on December 15, 1954. It was also charged that he suffered two prior felony convictions of forgery and second degree robbery. He pleaded not guilty to the charges and admitted the prior convictions. A jury trial resulted in a guilty verdict on all three counts and on the robbery count it was determined to be robbery of the second degree. After denial of a motion for a new trial this appeal followed.

The gruesome testimony of Mrs. Tow clearly shows facts sufficient to constitute the charge contained in Count I. As to this count, defendant claims insufficiency of the evidence in reference to her identification of the defendant as being the perpetrator of the crime. He endeavored to establish an alibi as to his presence at the scene on the night indicated. The complaining witness identified defendant as being the person who boarded the bus on a downtown street corner just after the complaining witness took it and was therein seated. She testified she observed him in a general way enter and go to the back end of the bus; that there were only two other persons on the bus at the time; that she “had a good view of him as he came in the door”; that when the bus stopped near her home she left by way of the front door and believed the defendant left by the rear door; that as the bus departed defendant walked up to her and spoke to her; that there was a bright street light at that intersection; that she kept walking toward her home and that within a 10-foot distance from the place where she left the bus defendant came up from behind her and said: “You don’t want me to shoot you in the back do you ? ”; that she slowed up and defendant said:'“I don’t want your money, I want your body ... I have got a gun”; that she thought he had a knife in his hand concealed in his coat pocket at the time; that she talked with him momentarily and told him that her home was in the immediate vicinity and that she was going into it; that he said “if I did he would put a bullet in my back” and ordered her to go into the near-by bushes; that by reason of his threats

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and actions an act of sexual intercourse was accomplished; that he said he lived only a few blocks from there and if she kept her mouth shut she could then go in her home.