People v. Flores

BARNARD, P. J.

The defendants were jointly charged in the first count of an information with the crime of kidnaping, and in four other counts each defendant was separately and respectively charged with the crime of rape. A jury found each defendant guilty on both charges and judgments were entered sentencing each defendant to the penitentiary, the terms on the two charges to run consecutively. Each defendant appealed from the judgment as to him and from an order denying his motion for a new trial. Thereafter, at the request of the defendant Hanks, his appeal was dismissed.

The general facts involved are as follows: The complaining witness was 19 years old and, apparently, had separated from her husband who was in the Army. About midnight on December 26, 1942, she came out of a café on Fourth Street in downtown San Diego. As she emerged from the café she was accidentally struck on the forehead by a bottle in the hands of one of several women engaged in a fight in front of the café. She was dazed and bleeding from the wound and a passing sailor led her across the street to an automobile occupied by the four defendants. The sailor suggested that she be taken to a doctor and someone of the appellants replied that they would do so. She was taken into the automobile and it was driven away, the appellant Rico doing the driving. They proceeded out Market Street and instead of taking her to a doctor they went out several miles and then left the highway and traveled some distance over a dirt road, eventually stopping at an isolated spot, where each of the appellants had sexual intercourse with her. Some time later, the appellants returned to town and let the complaining witness out

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of the car in front of or near her home. She hailed a passing car and, at her request, was taken directly to the police station, where she told what had occurred. We are unable to find in the record the exact time when she arrived at the police station, but the police surgeon testified that he examined her there at 3:30 a. m. on December 27th.

Bach of the appellants first contends that the evidence is insufficient to sustain his conviction on the charge of kidnaping. It is argued that the complaining witness voluntarily entered the automobile and that the only evidence of force in connection with the automobile trip is certain evidence that she attempted to jump out of the car at 16th and Market Streets while it was traveling 35 or 40 miles an hour, and that she was restrained and pulled back into the car by one of the appellants in order to save her life. While there is such evidence, there is other evidence that she opened the door of the car and tried to jump out while it was stopped at a stop-sign at 16th and Market, which was less than a block from her home, and that she was forcibly restrained by two of the appellants.