People v. Winters

GRIFFIN, P. J.

Defendant-appellant was charged with and convicted by a jury of the offense of rape, a violation of section 261, subdivision 4 of the Penal Code, and robbery, second degree, violation of section 211 of the Penal Code, on October 19, 1957.

The prosecutrix, aged 22, about 5 feet 6 inches tall, weighing about 140 pounds, was living with her husband in Lemoore. On October 19, 1957, she left in her ear with her four children, ranging in age from 2 to 5 years, to visit her mother near Riverdale. On her return home that evening about 8 :45, her car ran out of gasoline. After waiting alongside the road for some time appellant and his 12-year-old brother-in-law drove up and offered to push her car to a service station. After some effort he said he could not negotiate it and he invited the prosecutrix and her children to ride with him to the station. They got in the back seat of his car. Appellant drove off the highway and up a more or less isolated dirt road, stopped, got out, opened the door to the back seat and invited the prosecutrix to see a rear tire which he said was flat. He then put his hands on her shoulders and told her to put the baby down from her arms or in the front seat. She testified she became “scared” and said “No” over and over, and refused; that he said the boy in the front seat had a gun and she turned and saw the boy standing on the other side of the car facing toward the children in the back seat; that she could not see his hands to determine whether he had a gun; that because of what appellant said she opened the front door and placed the baby down on the front seat; that appellant steered her around in front of the car with his arm around her and she did not resist; that appellant then started talking about “gangs . . . Duke’s Gang of Los Angeles,” and said he was a member of it; that there were “guys all around there” and he told her to be quiet and not cry so

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loud and that she would be lucky if the “gang don’t get you”; that appellant walked her down the road and in back of some trees; that she was crying all this time and had her hands over her face; that appellant told her to remove her clothing which she did, partially; that appellant brought a blanket, put it on the ground, and accomplished an act of sexual intercourse; and that all of that time he kept telling her about “gangs throwing people in the river” and if she didn’t do as he said they would never go home. She said she thought she heard twigs crackling near-by and she believed appellant when he said not to cry aloud or protest and she believed the 12-year-old boy had a gun; that she consented to two such acts on this occasion because she was afraid; that appellant had warned her not to tell because someone had her automobile license number and would follow her home and that if she turned appellant in, someone would “get them” while appellant was in jail. She said she walked back to the ear “sniffling”; that appellant told her to sit in the front seat with him and that she saw a gun on the floor of the car when she got in and appellant made reference to it; that appellant then drove to Hanford and his ear ran out of gasoline; that appellant made her walk with him for a distance but a car came by and he told her to run back to his car; that he also returned shortly and obtained the gun from the front seat and handed it to the boy who put it in the back by the window; that appellant then left again and she made no effort to get away because she was “scared”; that she felt she could not leave her children there alone; that appellant came back and stopped a passing car; that the operator offered to take him to town for gasoline but after noticing a woman and children in the car he asked who they were and appellant said it was his wife; that the operator refused to leave them there, pushed their car into town, and appellant left and went to the oil station. This driver testified at the trial and described appellant. The prosecutrix further testified that all the time appellant was gone the boy had the gun in the back seat up by the rear window; that appellant’s threats had “scared her ’ ’ sufficiently that she made no effort to get away to report him; that after obtaining a can of gasoline for her car appellant proceeded back to it, placed some gasoline in it and directed her to drive his car and follow him while he was driving her ear; that he showed her a gun in his possession from the glove compartment of his car and said the “gang” had issued it to him; that she followed him with the children