People v. Chiappari

NOURSE, J.

The three defendants were tried jointly upon an information framed in two counts, one charging robbery and the other charging rape. The jury returned a verdict of guilty upon the second count, having failed to agree as to the charge of robbery. Judgments following the verdict were entered in each instance on September 30, 1925, and three separate appeals were taken based upon one typewritten transcript filed November 6, 1925. These appeals are, from the judgment and the order denying a new trial as to each of the three defendants. On June 10, 1926, a brief was filed on behalf of the defendant Chiappari and, upon request of his counsel, the time was extended to enable him to file briefs for the other defendants, but these briefs have not been filed.

The facts of the case are recited in

People

v.

Piero,

79 Cal. App. 357 [249 Pac. 541], and nothing would he served by repeating them here. It should be stated; however, that the defendants Ghio and Piexotto were members of the original party which picked up the prosecutrix on the streets of San Francisco and took her to the Brighton Beach Cafe in San Mateo County; that the defendant Chiappari joined the party at the cafe and that he, Craib, and the two other defendants formed the party of four who forcibly committed the assault upon the prosecutrix. It should also be stated that after this occurrence the four members of the party returned to the cafe, left the prosecutrix out on the road, and that some time later, at the request of the proprietor of the cafe, the defendant Chiappari got in another automobile and with a companion picked up the prosecutrix and returned her to Colma.

On this appeal it is argued on behalf of Chiappari that the testimony of the prosecutrix is confused and unbelievable. To support the argument disconnected excerpts from her testimony are copied from the record and by this method it is made to appear that this defendant was not present at the time of the assault. This is done by eon-

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fusing the proof of the use of two automobiles by members of the party and by disconnected references to the “machine” and “car.” The story of the prosecutrix is complete and sufficient to support the verdict, but in addition to this her story in all material respects was corroborated by other witnesses.