People v. Nazworth

GRIFFIN, J.

Defendant was charged with the crime of rape (Pen. Code, § 261, subd. 3) in that on or about the 9th day of September, 1956, in the county of San Diego, he did then and there wilfully, unlawfully, feloniously, and with force and violence have and accomplish an act of sexual intercourse with and upon one Hazel Ethel Nazworth. The information also contained an allegation that said defendant had been previously convicted of a felony and had served a term of imprisonment therefor in the United States Penitentiary at McNeil Island. Defendant entered a plea of not guilty and admitted the prior conviction. A jury trial was had and a verdict was returned finding him guilty of rape as charged in the information. His application for probation and motion for new trial were denied and he was sentenced to the state’s prison.

Hazel Ethel Nazworth, the complaining witness, was 19 years of age at the times here involved and was employed as a telephone operator in the city of San Diego. Defendant was a carpenter and lived with his wife and three children in San Diego. He was a cousin of the complaining witness. On September 8, 1956, at approximately 9 p.m., Hazel called her home from the telephone office where she was employed and told her mother she would be home late; that she was going to wait for a girl friend and ride home with her on the bus. The defendant was at Hazel’s home at the time and heard her mother say Hazel was going to wait until 9:30; that Joan Baldwin wanted her to walk from the telephone company to the bus line with her. After a conversation with Hazel’s father, defendant backed his car out of the driveway and departed.

Hazel and her girl friend, Joan, boarded the bus after Joan had left work and Joan got off the bus near her home. The girls had agreed to dine together that evening. Joan was

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to go home, change clothes, get her father’s car and pick up Hazel at her home. Later that evening she drove to Hazel’s home but she was not there.

Hazel left the bus near her home at about 10 p.m., crossed the street and had started walking toward her home when she noticed a car parked on the street corner. Defendant got out of this car and came up to her. He said, “Let’s go get something to eat. ’ ’ Hazel stated that she had to go home. She testified that they were standing near a picket fence at that time and defendant said he would smash her face through the fence if she did not go with him; that she told him she knew he would because she knew of two other girls he had “beat up”; that defendant grabbed her and shook her and when she attempted to get away, he held her by the arm and twisted it; that he pushed her over to the car, opened the door and pushed her in and told her to drive; that she drove the car where he directed because she was “scared of him”; that after driving a short distance, she stopped the car and tried to get out but the defendant told her that he “could run faster, so I better not try getting out”; that the defendant tried to kiss her and she “beat against his chest”; that he moved into the'driver’s seat, holding her arm, and then drove to a desolate area on Mt. Soledad, where he turned off on one of the roads; that he stopped the car, tried to kiss her and touch her breasts; that she told him to leave her alone and resisted his advances; that he then said he had been thinking about it for a long time and nothing was going to stop him; that he told her to take off her clothes but she refused and was crying and asked to be taken home; that the defendant then got into the back seat of the car and said he would give her to the count of five to get back there; that she was very much afraid of him but did not move from the front seat; that defendant then got back into the front seat and choked her with his hands so that she had difficulty in breathing and could not speak for a couple of minutes; that defendant then pushed her down on the seat and had sexual intercourse with her, without her consent and over her resistance; that about 15 minutes later defendant drove down the hill to a drive-in and then drove to her home, where she saw her father standing on the front lawn; that defendant then drove to two other eating places and then to Friar’s Road to a desolate area and stopped the car; that he then said, “I am going to do it again,” or words to that effect; that she said “No” and struggled with him and cried; that defendant then pushed her