People v. Craib

NOURSE, J.

The defendant was tried on an information in two counts charging robbery and rape. He was convicted of robbery in the second degree and of rape as charged. From the judgment following the verdict and from the order denying his motion for a new trial he has appealed on a typewritten record.

The facts of the case are the same as those related in

People

v.

Piero, ante,

p. 357 [249 Pac. 541], and it is not necessary to repeat them here. It should be added, however, that it was this defendant who drove the car both on the trip from San Francisco to the Brighton cafe and from the cafe to the place where the second assault and the robbery were committed and that this defendant was one of the four who participated in the second assault. All the material facts of the case in so far as they relate to this defendant were admitted by him when a witness in his own behalf except the actual commission of the assault and robbery. In this connection he testified that he drove the prosecutrix and his three companions down the road to the place where they left the car; that he drove on farther down the road for about twenty minutes, and that he then returned and picked them up, driving back toward the cafe until he met Piero and Garibaldi, with whom he left the prosecutrix.

The only question raised on this appeal relates to the portion of the instructions given to the jury which read: “Now, members of the jury, I might say to you that there is no question of difference between the attorneys on one point-, a.nd that is, that they agree that on the 2nd of August of this year this woman was standing on Mar

[368]

ket Street and Gough, in the city of San Francisco. Upon that there is no question on the part of the People or of the defendant. Now, what was done there, there is some question, but that is for you to pass upon. Nevertheless, she did get into an automobile—there is no question about that; there is no question but what she was driven in an automobile by someone away out to Brighton Beach, called Brighton Beach Inn, I believe, or some place of that kind; now, there is no question as to those facts, as I have just stated to you. Whether she wanted to be let out at Twenty-ninth or Nineteenth and Valencia, is a matter for you to determine, and the court and the attorneys cannot determine that for you. There is no question, either, upon either side, the People or the defendant, but what the defendant drove the automobile to Brighton Beach Inn. Upon that point there is no question. As to what occurred on the way out there, there is some question, and that is for you, as sensible men and women, to determine what occurred going there, and what occurred after they arrived at Brighton Beach Inn. There is no question also among the attorneys but what some jewelry was taken from the person of this defendant. Who took it is for you determine. There is no question but' what this prosecuting witness was raped. There is some question as to the circumstances surrounding that, and that is for you to determine, and neither the attorneys nor the court can determine that for you.”