People v. Smith

FOURT, J.

John Alexander Smith appeals from the judgment by the court, sitting without a jury, finding him guilty of four counts of kidnaping and forcible rape.

In an amended information filed by the District Attorney of Los Angeles County, appellant was charged in four counte with kidnaping and forcible rape. It was therein alleged as follows; count I, that on or about February 1, 1967, Smith did wilfully, unlawfully, feloniously and forcibly kidnap and carry away Delores Burton; count II, that on or about November 1, 1966, Smith did wilfully, unlawfully, feloniously and forcibly steal, take and arrest Audrey George, and carry the said Audrey George to another part of Los Angeles County; count III, that on or about November 1, 1966, Smith did wilfully, unlawfully, feloniously and with force and violence overcoming her resistance have and accomplish an act of sexual intercourse with and upon Audrey George, a woman who was not then and there defendant’s wife, without her consent and against her will; count IV, that on or about January 21, 1967, Smith did wilfully, unlawfully and feloniously and forcibly attempt to steal, take and arrest Karla

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Bradswell [sic] to another part of Los Angeles County. The court found Smith guilty as charged, denied probation and sentenced him to the state prison for the term prescribed by law, the sentences as to counts I, II and IV to run concurrently and the sentence on count III stayed pending appeal.

Appellant contends that the evidence was insufficient to sustain his conviction for the rape of Audrey George, and as to that contention we have further reviewed the record to determine whether defendant was denied due process when he was subjected to a one-man showup for identification by Delores Burton. We conclude that appellant was convicted on sufficient evidence and that he was not deprived of due process by the identification procedure. The sequence of events resulting in the charges herein related follow in chronological order.

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At about 10 p.m. on November 1, 1966, Miss Audrey George, then 21 years of age, was sitting on a bench at the comer of Vernon and Vermont Avenues waiting for a bus. Suddenly defendant came up behind her, placed a pointed metal file against her neck, took hold of her arm and ordered her to get up and accompany him. He walked her down Vermont Avenue and up a side street holding the file tip against her neck and threatening that if she screamed or tried to escape he would kill her. Then he forced her to enter a vacant house, remove her lower clothing and submit against her will to an act of intercourse, all by the use of force and threats of harm. Once the act was completed, Smith allowed Miss George to dress, and accompanied her back to Vermont Avenue. He remained with her while she called a friend, Edward Johnson, to come and get her, then left her at the bus stop to await Johnson’s arrival. These events took about an hour, and about 15 minutes later Johnson picked up Miss George and took her home. When Johnson learned what had happened to her he called the police and Miss George, who was single and had never before had sexual intercourse, made a personal report to the police in the morning. At that time she described her attacker to the police and several months later she identified him in a police lineup.