People v. Penrice

California Court of Appeal Sep 1, 1961 No. Crim. 3135Published

Before: Peek

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Holding. The court held that the victim's testimony was not inherently improbable and that the trial court did not err in its evidentiary rulings or instructions, affirming the defendant's conviction for kidnapping.

Issues

Whether the victim's testimony was inherently improbable as a matter of law.
Whether the trial court erred in admitting testimony regarding a prior abduction on redirect examination.
Whether the trial court erred in admitting evidence of welfare checks.
Whether the trial court erred by failing to instruct the jury on the limited purpose of prior offense testimony.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category.”

“The principal function of redirect examination is to reply to new matters drawn out on cross-examination and to explain or rebut adverse testimony or inferences developed on cross-examination.”

“Since no instruction was requested limiting the scope of the testimony, defendant will not now be heard to urge such fact as error.”

PEEK, J.

Defendant appeals from the judgment of conviction entered pursuant to the verdict of the jury finding him guilty of a violation of section 207 of the Penal Code (kidnaping) and from the order of the trial court denying his motion for a new trial.

The record shows that defendant and the victim of the kidnaping, Thelma Burns, had been living together as husband and wife. During the course of this association hostility developed between them, culminating in Thelma’s leaving the defendant and moving to the residence of a sister, Mrs. Prances Alexander, in Sacramento.

On the evening of the kidnaping, defendant went to the Alexander residence. When told by Thelma that she did not want to see him, he forced his way into the home, striking her and her sister with such force that he knocked Mrs. Alexander to the floor. He then drew a loaded revolver and threatened to kill everyone in the home unless Thelma accompanied him. At gun point, he then forced Thelma into his car and drove to

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the home of a Mrs. Jones (apparently a second “common-law” wife of the defendant), and informed her that he was driving to Berkeley.

A short distance from the Jones home, Thelma grabbed defendant’s gun and jumped from the ear. Defendant stopped the car and pursued her. Thelma attempted to shoot him, but the gun misfired and in the struggle for its possession, he struck her about the head and shoulders with a flash light he was carrying. Seizing the gun from her, he again forced her into the car. As he entered the car on the driver’s side, Thelma again attempted to flee, but again he grabbed her; this time she was unable to get out of the automobile. During this struggle, the sweater she was wearing was completely torn from her body, leaving her nude above the waist. They then proceeded to drive to Berkeley to the home of defendant’s sister, a Mrs. Thompson. Bn route they stopped for gasoline, but Thelma made no further attempt to escape. Upon arriving at the Thompson home, Thelma showered and obtained other clothing in place of her own, which was torn and muddy.

According to her testimony, she had no recollection of what occurred until the following morning at approximately 9 :30 a. m. when she arrived back at the Thompson home. That afternoon when the defendant learned that a warrant had been issued for his arrest, he and his sister persuaded Thelma to telephone the Sacramento police, urging them to drop the charges against the defendant. The call was placed from a public telephone booth at a service station next door to the Thompson home. The officer who received the call was able to engage Thelma in a sufficiently long conversation to enable the police to trace the call and apprehend the defendant before it was concluded. When arrested, defendant had 18 rounds of 45-caliber automatic shells in his pocket. The gun was later found at the Thompson home.

People v. Penrice

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PEEK, J.

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