People v. Holquin

MOORE, P. J.

This is an appeal from the order denying a new trial and from the judgment of conviction, after a verdict of guilty of rape.

The victim was a young married woman eighteen years of age. Appellant had called at the home of the prosecutrix about 9:30 a. m. on May 20, 1941. Her husband had departed for his work at an early hour and she had lain down for additional repose. She opened the door at the time appellant knocked and he entered stating that he desired to borrow $1 from her husband. He stated on entering her apartment that he had had a fight with a lady and was going to go to Mexico. He seated himself at the foot of her bed while she sat at the head of it. After they had talked about ten minutes, she stood up. He grabbed her and forced her on to the bed and committed the act of sexual intercourse. She protested and resisted with all her might but to no avail. When she screamed, he put his hand on her mouth. She tore his shirt and scratched his face, during the time that he applied force in order to consummate his diabolical act. After his crime he stated that he was sorry and asked her forgiveness. She followed him from her apartment down stairs and immediately asked the landlady to call the police. A party was waiting for appellant in an automobile in the street. Together they drove away. She called her husband by telephone and he arrived at 10:45 a. m. Upon his arrival he found her excited and nervous, her hair disheveled, waiting for him at the front of the apartment house. He telephoned the police who responded at 11:30 o ’clock and they found her condition as that described above and conveyed her to the hospital for examination. The husband then accompanied the officer in search of appellant and they found him in the company of the husband’s brother about 4 o’clock in the afternoon. The officers observed that he had scratches on his neck and that his shirt was torn in the front as had been

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related by his victim. On the way to the police station, appellant jumped from the automobile, ran across Broadway and was caught one block way.

Appellant admits the act of sexual intercourse but maintained that it was with the consent of the prosecutrix. He denied receiving the scratches at her hands.

The primary ground for appeal is that the verdict is contrary to the evidence and that the story of the prosecutrix is so incredible and improbable that this court should declare it unworthy of belief. In support of this contention, appellant points out that within five minutes of his arrival, the prosecutrix informed him that she was pregnant and had been for two months; that she testified that he did not choke her; that upon his arrival she left the front door unlocked; that although she professed to having been fearful, yet she did not attempt to escape through the back door; that while she had known him only four months yet she did not like him and always avoided his presence; that she did not tell him to leave but at the time of his departure she followed him downstairs; that she was suspicious of him during the entire 10 minutes before he removed her clothes and attacked her.