People v. Bales

BARNARD, P. J.

The defendant was charged with forcible rape and, in a second count, as a different oflense but connected in its commission with the first, with the crime of kid

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naping in that he forcibly took the same woman from the intersection of two streets in the town of Westmorland to a point about one and a half miles away. A jury, found him guilty on the first count and not guilty on the second count. .This appeal followed.

The appellant contends (1) that his conviction under the rape charge is a nullity as being inconsistent with his acquittal on the kidnaping charge, since the same unlawful force is relied upon under both counts, and (2) that the evidence is insufficient to support the verdict on the rape charge since the only acts testified to whereby her resistance was overcome “by force or violence,” or where she was prevented from “resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution” were those relating to the kidnaping charge, of which the jury found him not guilty. There is no necessary inconsistency between these verdicts except as it arises from the evidence, and the essential question here is as to whether the evidence is sufficient to sustain the verdict on the charge of rape.

The evidence discloses that about 3 o’clock p. m. oh August 10, 1945, the complaining witness, with her friend Mrs. Van Vliet, went to the “Town Pump,” a drinking place in Westmorland; that a few minutes later the appellant entered and the complaining witness spoke to him; that she had seen the appellant before but had never spoken to him; that in response to a question she told him that her husband had gone to Riverside and that she did not expect him to return until Saturday night; that they talked and drank beer until 5:30, each drinking three bottles of beer; that the appellant then drove the two women to their homes in his car; that on his invitation they then went with him to Brawley where they visited several bars and had more drinks, and where another man joined the party; that about 7 o’clock they returned to the home of Mrs. Van Vliet; that Mr. Van Vliet then joined the party and they went to the Town Pump where more beer was consumed; and that about 9 o’clock or a little later they all returned to the home of the complaining witness.