People v. Piero

NOURSE, J.

The defendant was tried on an information charging rape. He was convicted as charged and 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 assignments of error are: (1) The admission of evidence of a separate rape in which the defendant did not participate, (2) the admission of evidence of a robbery of which defendant was not guilty, (3) the admission of evidence of a crime against nature in which the defendant did not participate, and (4) misconduct of the district attorney in his argument to the jury.

A proper understanding of the grounds of appeal requires a more complete statement of the story of the case than we would otherwise be inclined to give, and for this purpose it is necessary to refer to the evidence offered on the motion for a new trial in addition to that tendered to the jury. This we are permitted to do under section 4% of article VI of the constitution, in order to determine whether the errors assigned resulted in a miscarriage of justice.

At about 12 o’clock midnight of August 2, 1925, the defendant and four companions, one of whom was a woman,

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took into their automobile the prosecutrix, who was standing on the corner of Gough and Market Streets, San Francisco. The prosecutrix asked to be taken to her home on Valencia Street and was assured that this would be done. The machine, however, continued on out Market Street, over the Twin Peaks road and on down to Brighton Beach, in San Mateo County. The prosecutrix frequently demanded that she be taken to her home or released from the ear, but was forcibly restrained by the defendant, who held his hand over her mouth to prevent an outcry. When the party arrived at the Brighton cafe they immediately left the machine and entered the cafe, except the defendant and the prosecutrix, who was forced to remain in the ear by the defendant. While the others were dancing and drinking in the cafe the defendant forcibly committed the assault upon the prosecutrix and then entered the cafe and told the others what he had done. The prosecutrix entered the dressing-room of the cafe and locked herself in, but was forced to come out by the proprietor on the demand of other members of the party. She was then dragged to the machine and driven down an unfrequented road by four men, three of whom were members of the original party while the other one was picked up at the cafe. These four took her from- the machine and each assaulted her. At this time one of the four robbed her of her jewelry, which he turned over to this defendant to sell and which was subsequently recovered from this defendant by the police. After the assault last referred to these four drove the prosecutrix back to the cafe, where they turned her over to two other men of like character whom they had met in the cafe. The original party, without the prosecutrix, then returned to San Francisco. A few days later they were all arrested and the foregoing story of the prosecutrix was corroborated in every material detail by the confessions which some of them made to the district attorney.