People v. Lougheed

NOURSE, J.

Defendant was tried before a jury upon an

information charging rape under subdivision 3 of section 261 of the Penal Code—where the female “resists, but her is overcome by force or violence. ’ ’ A verdict of guilty of attempt to commit rape was returned and from the judgment upon the verdict the defendant has appealed on a typewritten record.

The material evidence in the case is found in the of the testimony of the prosecutrix taken at the examination (she having failed to appear at the trial of the action in the superior court) and in the statement of the defendant made in the office of the district attorney shortly after his arrest. The stories of the two parties are without substantial conflict except upon the two issues of resistance and penetration. At about the noon hour of July 11, 1927, the defendant, a man of fifty years of age, picked up the prosecutrix, a woman over twenty-one, on the streets of Berkeley, where she was soliciting subscriptions for an Oakland newspaper. He drove her in his car to a place in the hills of Contra Costa County, where the attack is alleged to have taken place about an hour later. The prosecutrix went upon the ride willingly and permitted the defendant to engage in undue familiarities while in the car apparently in expectation that she would secure from him a number of subscriptions to the paper by which she was employed. According to her story she left the car and

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tried to escape, but the defendant followed her and accomplished the act without her consent and against her protest. The jury evidently disbelieved her story as to penetration when it found a verdict of attempt only. If her story were true and believed by the jury it would have required a verdict of guilty of the crime charged in the information. If untrue in this essential part the doubt which this fact must cast upon the rest of her story merely emphasizes the importance of the errors of law hereinafter considered.

The appellant insists that the evidence is insufficient to prove the essential element of resistance on the part of the prosecutrix and points out that the most that appears from her testimony is that she resented his caresses, resisted, pleaded, fought, and struggled with him; that it does not appear that any clothing was torn, that there was any blood upon her body or clothing, or that either the prosecutrix or her assailant showed any scratches, bruises, or marks of violence; and that there is no evidence of any character tending to prove that her resistance was “overcome by force or violence.” Many cases are cited by appellant touching on the question of the sufficiency of evidence to prove this issue, but we do not deem it necessary to further discuss the evidence or to consider the authorities cited because we are satisfied from our review of the entire record that the appellant was not accorded a fair trial and the judgment must be reversed for that reason. We will rest the opinion on the two assignments in which error is confessed by the state.