People v. Lopez

GRIFFIN, Acting P. J.

It was charged in count one of the information that on December 22, 1948, defendant assaulted one Enriqueta Ortiz with intent to commit rape; and in count

[666]

two with the violation of section 261, subdivision 5 of the Penal Code in that on the same day he did accomplish an act of sexual intercourse with her, and that she, at the time, was unconscious of the nature of the act, which condition of unconsciousness was known to the defendant. The jury returned a verdict of not guilty as to the first count, and guilty as to the second count.

The complaining witness testified that she was 22 years of age, unmarried, but the mother of two children; that she lived on the lower floor of a two-story house in Indio; that defendant and his mother lived upstairs; that on the night in question she came home from work and stopped in at her room and then went upstairs where defendant and other persons were assembled; that they had been drinking; that she consumed two drinks, went downstairs, had her “supper” and returned; that she had three more drinks but was not drunk; that she returned to her room and lay down on her bed fully dressed; that defendant appeared in the room at about 8:30 p. m. and stated he was going to bed with her; that she refused and he left, and that she then fell asleep; that soon thereafter she felt a blow on the head and lost consciousness; that she recalled that at the time the blow was inflicted she screamed but when she regained consciousness, about 10 p. m. she found that her skirt, belt, and underclothes had been torn off of her; that her face was swollen, bleeding, and was bruised, and a tooth had been broken. There were many circumstances related, unnecessary to set forth in detail, that sufficiently indicate that an act of sexual intercourse had taken place with her. Defendant freely admitted on the witness stand that on the evening in question he was drunk; that about

midnight

on the day in question he tore the belt and clothes from the complaining witness and that he accomplished an act of sexual intercourse with her, but claims that she was not asleep or unconscious at the time. The complaining witness then testified that when she regained consciousness she screamed and cried and that she saw defendant, his mother, and other persons sitting at her bedside and that she asked “who it was that had been with me,” and that defendant later said “It was I, it was I.” Defendant confessed the act to the chief of police. The next-door neighbor corroborated this testimony in this, that he said he heard screams about the time indicated and heard a noise as though someone had been struck a blow, and that he heard screams which he believed to have been the complaining witness’ voice, with which he was familiar. De