People v. Gray

[78]

JEFFERSON, J.

Defendant was originally charged in two counts with kidnaping in violation of Penal Code section 207, and rape, in violation of Penal Code section 261, subd. 3. Subsequently, the information was amended to add a third count, assault by means of force likely to produce great bodily injury in violation of Penal Code section 245. Defendant pleaded not guilty to all counts, jury trial was waived and the case by stipulation was submitted to the court on the proceedings had on the preliminary hearing. No additional testimony was offered. The court found defendant not guilty on Counts I and II, and guilty on Count III. Probation was denied and defendant was sentenced to one year in the county jail. Defendant appeals from the judgment of conviction.

The complaining witness, in substance, testified as follows: On the evening of July 8, 1962, at approximately 10:30 p.m., she decided to walk from her home to a nearby store. She had walked about a half block when defendant, who was riding in a panel truck, called to her. Receiving no response, he alighted from the truck, walked over to her and engaged her in conversation. He said, “My name is Johnny.” He then asked her what her name was and she replied, “Leatrice—that’s what everybody calls me, Leatrice.” At this time she turned around and started walking back in the direction of her home. Defendant walked along with her. As they passed an apartment house approximately five houses away from her home, defendant took her by the back of the arm, and, exerting 11 slight force ... but enough to let me know he was there,” led her upstairs to a room in the apartment house. She tried to get out but defendant “kept pulling” on her. She told him to leave her alone and not to bother her but defendant persisted, striking her on the arm and face, and causing the area around her eye to become swollen and to turn dark. She screamed, whereupon, defendant grabbed her around the throat, hit her in the face, and told her she had better not scream again. Defendant then pushed her over on a hed, and forced her to engage in an act of sexual intercourse with him. After defendant had completed the act he let her get off the bed and get her things together. She buttoned her dress because she did not want to look “out of the ordinary,” and then walked to her home and reported the incident to her husband.

Defendant neither testified at the trial, nor did he call any witnesses in his own behalf.