People v. Jones

VAN DYKE, J.

*

Appellant was charged with forcible rape, tried to a jury and convicted. He appeals from the

[409]

judgment. The prosecutrix lived near where the appellant resided. About 1:30 a.m. on August 4, 1962, she was awakened by a young Negro man who, covering her mouth with one hand while he held a knife to her throat with the other, proceeded to rape her. The sole contention on appeal is that the identification of appellant as the rapist is legally insufficient. We find the contention without merit.

The strength or weakness of identification is a matter solely within the province of the jury.

(People

v.

Coleman,

83 Cal.App.2d 812, 816 [189 P.2d 845];

People

v.

Finhel,

70 Cal.App.2d 508, 514 [161 P.2d 298].) The jury’s determination must be upheld unless the evidence of identification is inherently improbable or incredible as a matter of law.

(People

v.

Austin,

198 Cal.App.2d 669, 672 [18 Cal.Rptr. 209];

People

v.

Coleman, supra,

at p. 816.)

The identification of the appellant by the prosecutrix did not identify him positively. The crime was committed during the night but the prosecutrix was able to identify her assailant to some degree. She testified that while she was sleeping someone shook her; she looked up and saw a black face; her assailant was a Negro; though he talked, she was unable to hear because she was not wearing her double hearing aids and without them she could not understand what he was saying; that she knew appellant had a long thin face as did her assailant; that appellant is a small man of slight build as was her assailant; that from these similarities she thought appellant was her attacker.