People v. Clements

MARKS, J.

Appellant was charged with the crime of rape upon a female under the age of eighteen years, not his wife. He was found guilty of an attempt to commit rape and was sentenced to the penitentiary. He maintains that the evidence offered by the People was so inherently improbable that it will not support the verdict and judgment.

No good purpose could be served by reviewing the testimony here in all its sordid and revolting details. It will suffice to state that it shows a bestial attack upon the prosecutrix, a girl of the age of sixteen years, by appellant. The crime was committed near a by-road about six miles north of the city of San Bernardino during a stop in an automobile ride following a dance. There were three girls in the party who were of the ages of fifteen, sixteen and eighteen years respectively, and four boys who were of the ages of sixteen, eighteen, twenty, and twenty-one

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years respectively. The testimony of the prosecutrix would have supported a verdict of guilty as charged. It showed that the appellant accomplished his purpose by the use of force and that his victim resisted to the extent of her strength and ability and repeatedly called her companions to come to her aid.' Her testimony is amply corroborated by her girl companions and other evidence. It is also corroborated in many particulars by the testimony of appellant and the boys of the party. That appellant attempted to, or did, commit the actual rape, and that the prosecutrix cried out for help, are the only particulars in which appellant contradicted the story of his victim. The evidence is amply sufficient and is not inherently improbable. We are satisfied that under its oath and the evidence before it, the only other verdict which the jury could have consistently returned was one finding the defendant guilty of rape.

Appellant complains of the instructions given to the jury as well as of the refusal of the court to give certain instructions proposed by him. We have gone over all instructions carefully and can find no error of law therein prejudicial to the appellant. He particularly complains because the court submitted the question of attempt to commit rape to the jury, contending that the evidence clearly showed the appellant either guilty of rape or not guilty. In this we cannot agree with him. He produced an expert witness who testified at length. The sole purpose of this evidence was to disprove the prosecutrix’s charge of penetration. This evidence presented an issue of fact which the court correctly submitted to the jury.