People v. Biescar

Defendant was convicted of the crime of rape, perpetrated by means of force and violence. He appeals from the judgment and from an order of the trial court denying his motion for a new trial.

[1] Appellant insists vigorously that the evidence was insufficient to support the verdict of guilty. He makes no denial that he had sexual intercourse with the complaining witness at the time fixed in the charge against him, but contends that the act was performed with her full *Page 207 consent and that she submitted most willingly to his embraces. As there are some features of the evidence which tend strongly to support this claim of appellant we deem it necessary to set down in some detail the occurrences which led to his conviction. Both appellant and his alleged victim were members of a coterie of young people who seem to have conducted themselves with great freedom in their interrelations. Some of the crowd, perhaps most of them, knew each other only by their given names or by "nicknames." At the period which is of interest here the prosecuting witness, known to her associates as Pats, was nineteen years of age. One of her girl friends, to whom we shall refer hereafter as Rose, and who figures somewhat prominently in the case, was twenty-one or twenty-two. Appellant was twenty-nine. Appellant and Pats became acquainted on March 17, 1928. On the evening of that day she and Rose and some others — the party was apparently composed of eight or ten persons when all had arrived, perhaps more — came to the four-room cottage in which appellant kept bachelor's hall, on a "party." Drinking and dancing were indulged in during the evening, the former to such an extent that all the guests remained in appellant's house throughout the night. Some of them slept on the floor and the two beds in the place were fully occupied by others. It is strange to note that a brother of Pats, or perhaps of Rose, was one of the members of this "wild" party. Appellant and Pats, both having arisen in the early morning, met each other in the kitchen and at once planned a walk to a hill near the house for the purpose of plucking wild flowers. They went over the top of the hill and into a grove of trees, where appellant says they yielded to their sexual desires. Pats denies this consummation, but testifies that appellant made improper advances to her — "started things that weren't right" — and that she compelled him to desist only by threatening to scream. They soon returned to the house, where they found two of the other girls preparing breakfast for the crowd. The party did not conclude after this meal. Appellant led his guests to his father's ranch, some miles in the country, starting at about 11 o'clock in the morning, and where, some time after their arrival, all had another repast. While they were all at the ranch Pats and appellant went together to a bathhouse *Page 208 which was near a swimming pool on the place and entered it together. Appellant says that there they fondled each other and were again about to indulge in carnal embrace when they were interrupted by a woman passing the bathhouse. Pats testified that on this occasion appellant made improper advances but that she again resisted him, and that she again threatened to give warning by screaming. Just when this party of March 17th-18th ended the record does not show. Pats and appellant did not see each other after the party until May 23d, upon which day the crime of which appellant was convicted is charged to have been committed. At 3 o'clock on the afternoon of that day appellant appeared in his car at the home of Rose. He had with him a gallon of wine which he took into the house, where he and Rose and her mother had a drink together. Appellant then poured out a quart of wine and gave it to Rose's mother. The girl was employed at a bakery, where she worked from 4 o'clock in the afternoon until midnight, and appellant offered to take her to the bakery in his car. They soon set out, but stopped at the home of Pats to ask her to drive with them to Rose's place of employment and return with appellant for the ride. They found Pats preparing dinner for her parents, who were working people and expected to be home at about 6 o'clock, but she agreed to take the ride, upon which they soon started. At a little distance on the trip they all had a drink of wine without stopping the car. A little later they halted at a gasoline station operated by a man with whom appellant was acquainted and appellant asked him to join them in a drink. The two girls and the two men then partook of the wine together. Rose was then taken to the bakery and Pats and appellant started on their return. They stopped, however, at appellant's cottage, in order for him to change his clothes so that he might be in better condition to meet her "folks" when he took her home. Pats entered the house with him without objection and they at once had a glass of wine together. She then played his phonograph while he started dressing. At some stage in his preparations Pats offered to shave him and did so. They each had one more drink of the wine. After this last drink Pats, according to her testimony, started toward a davenport and her mind "became a blank." She doesn't know *Page 209 whether she reached the davenport or not. This Pats says, was about 5:15 or 5:20 o'clock. She testified that she regained consciousness at about 9 o'clock, and then found herself in bed with no clothing but a small undergarment. She says that appellant was in bed with her, entirely nude, and was endeavoring to violate her person. She testified that she tried to fight him off, but that he choked her, beat her, called her vile names and finally accomplished his purpose, when she again lapsed into an unconsciousness from which she did not recover until nearly midnight. Appellant says, to the contrary of all this, that after the last drink he went to his bathroom, that when he returned he found Pats undressed and in bed, that he then disrobed and got into bed with her, when they immediately had sexual intercourse without resistance on her part. At the preliminary examination Pats testified that her mind "became a blank" at 4:40 o'clock, instead of at 5:15 or 5:20, as above related. At the preliminary she also testified that she first regained consciousness at "25 minutes to 12 or 20 minutes to 12," thus omitting in that relation all reference to the spirited battle which, at the trial, she said occurred at about 9 o'clock. According to the testimony at the preliminary there was one continuous period of unconsciousness of about seven hours' duration, while, according to what Pats said at the trial, there was one period of about four hours followed by another of about three, with an interval of complete consciousness and of great activity between. At any rate, and no matter which of these recitals was the truth, or whether either of them was true, appellant took Pats home in his car, starting not far from midnight.