People v. Frye

California Court of Appeal Mar 31, 1953 No. Crim. No. 2864Published

Before: Wood (Fred. B.)

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Holding. The court held that the defendant's notice of appeal was timely filed under the constructive filing doctrine and that the evidence was sufficient to support convictions for rape and assault with intent to commit rape. The court further held that corroboration of a rape victim's testimony is not required as the victim is not an accomplice.

Issues

Whether the defendant's notice of appeal was timely filed under the constructive filing doctrine.
Whether the evidence was sufficient to support the convictions for rape and assault with intent to commit rape.
Whether the testimony of a rape victim requires corroboration.
Whether the court can review jury instructions not included in the appellate record.

Disposition. affirmed

Quotations verified verbatim against the opinion

“For those reasons we hold that the defendant made a constructive filing within the prescribed time limit and satisfied the jurisdictional requirement as contemplated by law.”

“Corroboration of the prosecutrix' testimony is not necessary in such a case.”

“Instructions not incorporated in the record will be presumed correct and will not be reviewed.”

117 Cal.App.2d 101 (1953) THE PEOPLE, Respondent,

ROBERT FRYE, Appellant.

Crim. No. 2864. California Court of Appeals. First Dist, Div. One.

Mar. 31, 1953. Robert Frye, in pro. per., for Appellant.

Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, Charles E. McClung, Deputy Attorney General, J. F. Coakley, District Attorney (Alameda), and Richard C. Lynch, Deputy District Attorney, for Respondent.

WOOD (Fred. B.), J.

The defendant appeals from the judgment entered upon his conviction on two counts: Count 1, rape; Count 2, assault with intent to commit rape. He also appeals from the order denying his motion for a new trial.

His notice of appeal, dated June 7th, was received by the clerk of the trial court June 10, 1952, but under rule 31 [103] should have been received June 6th. It appears from a letter of the warden of the state prison where defendant was incarcerated, that the defendant requested permission to forward his notice on June 5, 1952, "but due to the necessary delay in procedure here, we were unable to arrange for his signing and mailing the Notice until today [June 9] ... We assume that this Notice is timely within the rule of People v. Slobodion, (30 Cal.2d 362 [181 P.2d 868]) and People v. Aresen [91 Cal.App.2d 26 (204 P.2d 389)]." For those reasons we hold that the defendant made a constructive filing within the prescribed time limit and satisfied the jurisdictional requirement as contemplated by law.

(1) Defendant claims that his conviction of the crime of rape (Count 1) is not supported by the evidence.

In that behalf, he contends that the complaining witness' testimony was self-contradictory and that she related facts inherently improbable; that there was no evidence that she resisted him; that because of darkness, it is apparent she could not have identified him as the person who attacked her; and her testimony is not corroborated.

Our examination of the record convinces us that these points are not well taken. [1] Corroboration of the prosecutrix' testimony is not necessary in such a case. [2] Section 1108 of the Penal Code is inapplicable because rape is not one of the crimes therein mentioned. [3] Section 1111 of that code is also inapplicable because the victim in a rape case is not an "accomplice," not a person "who is liable to prosecution for the identical offense charged against the defendant on trial." (See People v. Gidney, 10 Cal.2d 138 [73 P.2d 1186], and 22 Cal.Jur. 399.)

People v. Frye

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