People v. Tolson

ADAMS, P. J.

Appellant Tolson was charged with and convicted by a jury of a violation of section 261 of the Penal Code, in that, with force and violence, and against her will, he accomplished an act of sexual intercourse with a Mrs.

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S. who was not then his wife. He admitted the act of intercourse, but contends that it was aeeomplishehd without force or violence, and with the consent of Mrs. S., which she denied.

As grounds for reversal appellant asserts that prejudicial error was committed by the trial court in allowing testimony of the conduct of defendant toward three other women in a bar in the afternoon just prior to the offense against Mrs. S.; that there was reversible error in the introduction by the district attorney and the allowance by the court of statements made by defendant shortly after his arrest; and that the district attorney, in his argument to the jury, made a statement that was prejudicial to defendant.

The evidence shows that the offense of which appellant stands convicted occurred about 5:30 p. m.; that around 3 o’clock of that day appellant entered the Forest Club in Forbestown where he seated himself beside a Mrs. G., a total stranger, began a conversation with her, and asked if he could not take her home, and when she refused asked her to take a ride with him, which she also refused. He then approached two other strange women, asking each one of them if she would not go with him. To avoid him the three women finally moved to a corner table, together, but he followed them and continued his attentions, during which time he pinched one of them on the buttocks. The bartender ordered him to leave, which he did about 4:30 or 5 p. m., after some expostulation.

Defendant’s counsel objected to evidence of the aforesaid circumstances, but the objection was overruled, at which time the court instructed the jury that such testimony was admitted solely and only for the purpose of showing, if it did show, the frame of mind or a design or a common purpose on the part of defendant in connection with the offense with which he was charged. On a motion by defendant to strike the foregoing testimony the court again said:

“. . . If your argument is sound, the Jury will agree with you. You admit that he had an act of sexual intercourse with the complaining witness, and as you say, the sole issue is whether it was accomplished by mutual agreement between them or whether it was accomplished by the use of force. That is the issue as I take it; however, I see no harm in this testimony, and I think it is material to show possibly a design or common purpose or something of that sort.”