People v. Goldsmith

HOUSER, J.

From a judgment of conviction on each of two counts contained in an information wherein he was

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charged with the commission of the crime of rape, as well as from an order by which his motion for a new trial was denied, defendant has appealed to this court.

Although appellant, has divided his point into many different parts and by each of them has urged a reason couched in language different from either or all the others, the sum and substance of the several grounds thus presented for reversal of the judgment and the order herein is that the evidence is insufficient to support the judgment.

An examination of the record discloses the fact that a period of two days only intervened between the alleged attack made by defendant on his first victim and the similar attack made by him on the second. As he did not see fit to be sworn as a witness in his own behalf, the testimony of the prosecuting witness in each of the counts of the information must furnish the sole source relating to the immediate facts. In- the main, it appears that the method of attack employed by him in the commission of the offense of which he was charged was identical one case with the other. In short, at about 8 o’clock in the morning, he drove his automobile along or upon a bus route, and upon seeing the prosecutrix apparently waiting for an opportunity to become a passenger on such conveyance, stopped his automobile and invited the prosecutrix to ride with him. The invitation having been accepted, instead - of continuing on the way to the intended destination of the prosecutrix, defendant drove his automobile at a rapid rate of speed into a lonely place among willow trees and bushes, and then and there, by means of threats of great bodily injury to the prosecutrix, or even of taking her life, unless she consented to the act—which threats were actually preceded by physical violence in the form of choking the prosecutrix—he succeeded in quieting her physical resistance and thereupon proceeded to and did accomplish his purpose.

The contention of appellant is that because by the evidence it appears that continuously and up to the very instant when copulation occurred between defendant and the prosecutrix, she failed to make every resistance within her power to prevent the consummation of the act—no crime was committed. In that connection, in effect the evidence was that, because of the immediately previous violence suffered by the prosecutrix at the hands of defendant, together