People v. Neely

SALSMAN, J.

Appellant was convicted of attempted rape.

The record supports the following statement of facts: Delores, the prosecuting witness, was a patient at Napa State Hospital. She testified that on March 3, 1963, she saw appellant at the hospital; that he pushed her into his car and drove off towards Vallejo. There was another man in the car. In Vallejo appellant received a ticket for a traffic violation, but Delores did not ask help from the officer because she was afraid. At Vallejo the other man left the car. Appellant pur

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chased some liquor and drove with Delores to the town of Stewart’s Point. Here appellant stopped and entered a store to purchase food. Delores also entered the store, where she physically seized a clerk and told him she had been taken from Napa State Hospital, and asked help. She also asked help from two boys outside the store, but no help was given. Appellant drove Delores a short distance farther, took her into a field, struck her on the head with a wine bottle, slapped her, cut off her undergarments with a pocket knife, and attempted to have sexual intercourse with her. He eventually left her in the field and she made her way back to the store.

Appellant testified he had never seen Delores prior to the preliminary hearing. He testified he was at home at the time of the alleged assault. His father and a friend supported his claim of alibi.

Raymond Burleyyoung, the clerk in the store at Stewart’s Point, positively identified appellant and Delores. He testified both were in the store on March 3, 1963. He described appellant’s car. He corroborated Delores’ story that appellant had bought food and that Delores had sought help while in the store. This witness also testified that half an hour to 45 minutes after appellant and Delores left the store he saw appellant’s car speeding south and that 15 or 20 minutes later Delores appeared, bruised, “mussed up,” and carrying her slashed undergarments in her hand.

The appellant correctly contends that the trial court erred in denying him the right to cross-examine Delores concerning past complaints of rape. At the preliminary hearing, and at trial, Delores denied she had ever consented to intercourse with a man. In one portion of her testimony, however, she testified she did not know the meaning of the words “sexual intercourse” and “rape.” She was then asked if she knew one Phillip. The court sustained an objection to this question. Out of the presence of the jury, appellant offered to prove that Delores had complained to the hospital authorities that she had been raped by Phillip; that on another occasion she complained to hospital authorities of rape, saying it was the third time she had been raped.