People v. Newlan

California Court of Appeal Sep 8, 1959 No. Crim. 2946Published

Before: Peek

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Holding. The court affirmed the defendant's conviction for forcible rape, holding that the evidence of resistance was sufficient for the trier of fact and that the trial court did not abuse its discretion in denying a motion for a new trial or probation.

Issues

Whether the evidence of the prosecutrix's resistance was sufficient to support a conviction for forcible rape.
Whether the prosecutrix's testimony was inherently improbable.
Whether the trial court abused its discretion in denying a motion for a new trial based on newly-discovered evidence.
Whether the trial court abused its discretion in denying probation.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The extent to which she must resist his [the rapist’s] advances is for the victim only to determine. She is required to go no further than is necessary to make manifest her unwillingness to yield to the attack.”

“The “sufficiency of the woman’s resistance, whether the resistance was genuine, sincere, and bona fide, as well as the extent of the resistance or nonconsent, are solely for the trier of fact.””

“It is well established that the granting or denying of a motion for new trial on the ground of newly-discovered evidence rests in the sound discretion of the trial court”

[581]

PEEK, Acting P. J.

Defendant was charged with a violation of Penal Code, section 261, subdivision 1 (statutory rape) and section 261, subdivision 3 (forcible rape), both counts relating to the same act. He now appeals from a judgment of conviction following a jury verdict finding him guilty of forcible rape, and from the orders denying his motion for a new trial, his application for probation and his application for a stay of execution pending appeal.

The evidence as to force on the part of the defendant and as to resistance on the part of the prosecutrix is weak. The record discloses that the prosecutrix, the 15-year-old stepdaughter of the defendant, was awakened on or about 2:30 in the morning by the defendant who was then in bed with her; that although she knew a younger sister and brother were in the house at that time, but was not sure if her mother was then there, she made no outcry; that she tried to get away from the defendant and out of the room, but there was little she could do because of his actions in physically holding her on the bed; and that she was crying throughout the commission of the act. The act occurred on or about August 1, 1957, but she told no one until some time in September when she told a friend, Mrs. Erma Fenton.

It is a well-established rule that there must be some showing of resistance on the part of the prosecutrix

(People

Bales,

74 Cal.App.2d 732, 736 [169 P.2d 262]) ; however, the old rule calling for the victim to resist to her utmost has been considerably relaxed, that is: “The extent to which she must resist his [the rapist’s] advances is for the victim only to determine. She is required to go no further than is necessary to make manifest her unwillingness to yield to the attack. [Citations.] The crime is accomplished if at any moment during the struggle the accused intends to use such force as may be necessary to gratify his lustful concupiscence against the will of his victim. [Citation.] The importance of the woman’s resistance to the rapist inheres in (1) his intent to use force and (2) her nonconsent; but the crime does not hinge upon the woman’s ‘utmost exertion.’ ”

(People

People v. Newlan

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