People v. Soto

[345]

ASHBURN, J.

Defendant Fernandez, aged 18, appeals from a conviction of forcible rape of a 14-year-old girl named Judy. He also appeals from an order denying Ms motion for new trial.

If guilty, appellant was a party to a fiendish sexual orgy in which some 15 to 18 young men, by apparent prearrangement, took Judy at night into a field of haystacks, and there gratified their lusts upon her person for a period of three or four hours. Fernandez and four codefendants were convicted.

Appellant claims that he did not attack Judy and was not present at the scene; that the evidence upon which he was convicted is not sufficient to support the verdict. It appears that he and Judy were acquainted prior to the series of attacks, that she identified him at the police station as one of her violators and that she testified at the trial that she recognized him as one who raped her. The boys had covered her eyes, first with their hands and then with her pedal pushers. But as she fought her assailants she pushed the hands and the pushers off and was able to see most of them though it was dark in the field. While in custody appellant signed a paper saying that he had gone to the haystack “and saw the girl on the haystack and a lot of guys around and I attacked her and left. ’’ The prosecutrix’ testimony does not require corroboration (22 Cal.Jur. § 43, p. 399;

People

v.

Frye,

117 Cal.App.2d 101, 103 [255 P.2d 105]) and hence the evidence is sufficient with or without the aid of the so-called confession.

In addition to his own denial of guilt appellant produced considerable evidence which, upon the cold record, seems somewhat persuasive to the effect that he was not at the scene at all. But it is not our function to weigh the evidence. “The court on appeal ‘will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground’ of insufficiency of the evidence, ‘it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court