People v. Kimball

WOOD (Parker), J.

Defendant was charged with the crime of rape committed with force and violence. Trial by jury was waived. He was adjudged guilty of “Assault with Intent to Commit Rape, a felony, a lesser offense than that charged in the information but necessarily included therein.” He was sentenced to imprisonment in the state prison. He appeals from the order denying his motion for a new trial.

Defendant contends that the court erred in finding him guilty of assault with intent to commit rape.

Vera, the prosecutrix, had known defendant about four months prior to July 13, 1952, the day of the alleged offense. During the first three months they saw each other about every

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day and he treated her kindly and gave her a few small gifts. They agreed to he married in September. On June 10, 1952, defendant moved to the Cromwell Hotel. Vera was present when he registered at the hotel, and he told the hotel clerk that he was going to marry Vera, and he asked the clerk if Vera might go upstairs. The permission was granted, and Vera went to his hotel room and helped him unpack his suitcase and trunk. She testified that she did not recall whether or not, thereafter, she went with him on many occasions to his room. About three days after he moved to the hotel, she went alone to his room, got a shirt and jacket, and took them to him. She testified that she did not have a key to his room, but she always told him to tell the clerk that she was coming ; and that he told the clerk by telephone that he was sending Vera to his room to get wearing apparel for him. About one month before July 13th while defendant was in her home she refused to go with him, and he picked up a “buggy cart” and slammed it against a window—breaking the glass and the frame of the window. She then told him that she did not want to see him again and that he should pay for the damage to the window.

On said July 13th the defendant, who was working at a parking lot near Seventh and Hill Streets in Los Angeles, requested her to meet him at 2 p. m. at a corner of those streets to make arrangements about fixing the window. She met him there and then they went into a bar and he drank a glass of beer and she drank a “coke.” After they left the bar he asked her if $7.00 would pay for fixing the window. She replied that she did not know. He said that it was a hot day and he would like to go to his room and change to lighter clothes, and then they would return and have a lunch. They arrived at his room about 4 p. m. She testified that he changed his shirt four or five times, and when she saw that he would not leave any shirt on, she became suspicious and opened the door, intending to leave, but he jumped at her like a beast, grabbed and twisted her arm, and shoved her onto the bed; they started wrestling and fighting; he struck her mouth with his hand, pulled her hair, slapped, beat, bit, and choked her; she fought him until he overpowered her; he forced her to take off her coat and skirt; he yanked her blouse off and took her pants off; he finally forced his privates into her privates; she was bleeding, and the sheet and her slip were bloody; he pulled her off the bed; when she said she wanted a drink of water, he shoved her face into the wash