People v. Johnson

BRAY, P. J.

Defendant appeals from a judgment of conviction, after jury trial, of: (1) violation of section 261 of the Penal Code (rape); (2) violation of section 288a (sex perver

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sion); (3) violation of section 211 of the Penal Code (robbery) ; and (4) violation of section 245 of the Penal Code (assault with a deadly weapon) .

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Question Presented

The sole question presented relates to defendant’s conviction under count 4 of assault with a deadly weapon. The prosecutrix in the first three counts is a different person from the prosecutrix in the fourth count, who is Mrs. Higgins. It is contended that the testimony of Kathleen Brian was inadmissible as not showing an offense similar to the one charged.

Evidence

As no contention is raised as to the sufficiency of the evidence under the first three counts, and as it proves acts of great depravity and degradation, the evidence relating to the first three counts will not be related.

The fourth count deals with a conviction different from the one in the other three counts.

On October 10th about 2:30 a. m. Mrs. Higgins was returning home in her car from work. She noticed a car following hers. Parking her car near her home, she saw the other car parking nearby, and then saw a man, whom she identified as defendant, walking toward her car. She locked the doors, remaining inside. The man approached and asked her some street names. She started to open the window to hear him more clearly. As she did so defendant grabbed the window. Defendant told her that he had a gun and that she had better open the door. Mrs. Higgins began to honk her horn, hoping to attract attention. Defendant ran back to his car, started it, and drove it alongside her car. He then pointed a gun at her and told her to open the door. She slipped under the dashboard onto the floor, honking the horn all the while. On looking up a few moments later she found that defendant had gone.

The following Tuesday, while driving to work with her husband, Mrs. Higgins saw defendant’s car; it was a two-toned reddish orange and white one, and hence easily recognizable. Mr. Higgins took the license number and reported it to police. Defendant was arrested and later released on bail. Mrs. Higgins identified him in a lineup of five men.