People v. Wilson

California Court of Appeal Jul 23, 1963 No. Crim. 1879Published

Before: Griffin

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Holding. The court held that circumstantial evidence is sufficient to prove nonmarital status in a rape prosecution and that the forcible insertion of a baseball bat into a vagina constitutes assault by means of force likely to produce great bodily injury.

Issues

Whether the prosecution must provide direct evidence that the defendant and the victim were not married to sustain a rape conviction.
Whether the forcible insertion of a baseball bat into a vagina constitutes assault by means of force likely to produce great bodily injury if no actual great physical harm resulted.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Proof of the nonmarital status between defendant and Mrs. Loving need not be shown by direct evidence. Circumstantial evidence is sufficient.”

“The fact that serious damage was not done does not reduce the offense to simple assault.”

“What force is likely to produce great bodily injury is a question of fact to be determined by the trier of fact.”

GRIFFIN, P. J.

Defendant was convicted by the court of forcible rape (count one), sex perversion (count four), and assault by means likely to produce great bodily injury (count five). A motion for new trial was denied on November 5, 1962, and defendant was committed to the Atascadero State Hospital for observation before final judgment. The appeal from the order denying a new trial is therefore allowable. (Pen. Code, § 1237, subd. 2; Cal. Rules of Court, rule 31 (a).

)

Defendant first claims that the evidence is not sufficient to sustain a conviction for rape when the complaining witness does not testify that she was not married to the defendant at the time of the alleged offense.

On July 13, 1962, defendant and a Mrs. Loving were bowling. Later, defendant took her to his home. They had an argument. In his desires, he struck and slapped her, shoved her into the bedroom and ordered her into his bed. He forced her, without her consent, into having sexual intercourse with him. Following this act, an act of unconsented oral copulation was had. Defendant then went to the dresser and removed an instrument (handle end of a baseball bat), lubricated it and inserted it into his victim’s vagina, and as he twisted it around, Mrs. Loving expressed pain. Defendant told her: “I want to hurt you. I want you to remember me.” Upon reporting the incident, she was taken to the hospital for treatment and defendant was arrested. Defendant’s defense was that the sexual acts were consented to by her and that he had no intention of harming her by use of the baseball bat, and that there was no showing that defendant was not the husband of the complaining witness.

Proof of the nonmarital status between defendant and Mrs. Loving need not be shown by direct evidence. Circumstantial evidence is sufficient.

(People

Meraviglia,

73 Cal.App. 402, 407 [238 P.794].)

Mrs. Loving testified that on the night of the rape she had an interlocutory decree of divorce from Mr. Loving which would not become final until August 30, 1962, and she said

[566]

People v. Wilson

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GRIFFIN, P. J.

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