People v. Vivian

STURTEVANT, J.

Homer Vivian, Jr., was charged by

[535]

information, tried, and convicted of violating section 261 of the Penal Code, statutory rape, upon the complaining witness, Dorothy May Kirby, a girl about fifteen years of age and who was not the wife of the .defendant. He made a motion for a new trial. His motion was denied and he appealed from the judgment and order.

The information alleged the offense took place on the 12th day of August, 1940. It also charged the defendant with three prior convictions of felonies: the first, on October 25, 1935, in the United States District Court in the State of Texas for violation of the Dyer Act (18 U. S. C. A., sec. 408); the second, on June 10, 1939, in the Superior Court of the State of Florida, of the crime of forgery; and third, in the Superior Court of this State of the crime of forgery. The last mentioned offense is discussed in the case entitled

People

v.

Vivian,

46 Cal. App. (2d) 163 [115 Pac. (2d) 559]. The instant case is closely connected in point of time with the cited case. The defendant admitted all of the priors, entered a plea of not guilty to the charge of rape and was tried thereon.

Dorothy May Kirby, the prosecutrix, hitch-hiked from her home in Missouri to Los Angeles in the month of June or July of 1940, where she stopped with her mother for two or three weeks. "While there she was employed at the Casino on Main Street under the name of Dorothy Humphries as a taxi dancer; she gave her age there as twenty-two years. She then came to Oakland, where she was employed as a waitress and part of the time as a taxi dancer at the Broadway Academy under the name of Jean Garrison. Here she stated her age to be twenty-two. She then secured employment at the Marino Club on Ellis Street, San Francisco, as a B-girl, under said name of Jean Garrison. She was paid a salary and received a commission on the drinks men purchased. She had been there a week when she met appellant; it was the night of the 12th of August, 1940. He asked her to dance with him, which she did. He invited her to become his partner at a Walkathon. From the Marino Club that night they went to a cafe, where they had something to eat, after which they went to the Walkathon and, at about 2 a. m., they drove to his apartment at 706 Polk Street. They were accompanied by his friend, Charlie Sinclair, whom she knew as Charlie. The apartment contained two rooms, a living room and kitchenette. There was a folding bed and a lounge. The prosecutrix and appellant retired and slept to