People v. Calliham

MOORE, P. J.

Having been convicted by the court of robbery and of assault with intent to commit rape, defendant seeks a reversal of the judgment on the grounds that no force was applied in the robbery and no resistance was made to the rape; that is, the evidence is not sufficient proof of the crimes.

[930]

The prosecutrix testified that about 12:30 o’clock on a Sunday morning, as she was walking on Hooper Avenue in Los Angeles on the way to visit her brother, she was grabbed around the neck and pulled backward to a dark place behind some garages. The man laid her backward, pulled off her slacks and pants, zipped open her red purse which had fallen beside her, removed its contents and searched the pockets of her slacks. He then put down the purse and lay upon her for five minutes, attempting to perform an act of sexual intercourse while she kept moving. She did not scream or try to rise because she was “too scared . . . was scared to death, and couldn’t make no sound.” During such performance the police officers arrived and her assailant jumped up and ran.

That the victim was choked in her struggle with appellant was proved by Mrs Bjarklund, who occupied the house next to the' alley. She heard “a lot of heavy breathing” after a noise like a man staggering into her yard as he hit against her house. She heard someone say twice: “Don’t choke me,” and a noise as if someone had fallen at the side of her house. She asked her neighbor to call the police. After the officers arrived, the victim came out in front of the house holding up her slacks and telling the police that her assailant had grabbed her around the neck, choked her and dragged her into the yard. The police succeeded in capturing the culprit only after they had pursued him through several adjacent premises and fired six shots at him. He was then identified by the victim as her assailant. A red purse belonging to her containing 89 cents was removed from the man’s pocket by a deputy sheriff at the Maywood Hospital.

"While the testimony of the prosecutrix is somewhat hazy as to whether she had any money at the time of the assault, it was definitely established by her that appellant took her purse from the ground and pushed her back as she protested. Although she did say then to the miscreant that she had no money, the discovery of her red purse in appellant’s possession was stronger evidence of his robbery than her recollection of the contents of her purse and is substantial proof of a robbery. Her fright at the time, induced by his dragging her into the darkness and his pushing her back at the time of his taking the purse, is sufficient to make it robbery without proof of further force.