People v. Kuches
Before: Britt
Synopsis
Criminal Law—Assault with Intent to Commit Rape—Sufficiency of Evidence—Province of Jury—Appellate Jurisdiction.—The court, has appellate jurisdiction in criminal cases on questions of law alone and the propriety of conviction upon the evidence before the court becomes a question of law within the competence of this court only when there is a clear failure of proof; and though the evidence contained in the record may not be very convincing to this court, that a defendant accused of an assault with intent to commit rape intended to accomplish intercourse with the prosecutrix against her consent, and despite any resistance she might make, yet where there-is evidence tending to prove the truth of the charge, the deductions of fact from the evidence are with’n the province of the jury, and where the court that heard the evidence has refused a new trial, its order will not be disturbed upon appeal for insufficiency of the evidence to justify the verdict.
Id.—Question of Fact—Failure to Make Outcry.—The failure of the female to make outcry, though ordinarily tending strongly to discredit her charges, is not conclusive; and it is a question of fact whether the inference of consent to be drawn from her silence was repelled by other circumstances.
Id.—Opportunity for Interruption and Discovery.—Though the fact that the assault was committed at a place and time when interruption and discovery must probably have followed any considerable resistance on the part of the female, is a strong circumstance tending to exonerate the defendant of the forcible intent charged, yet the deduction therefrom is one of fact to be determined by the jury, in view of all the evidence before it; and the appellate court cannot say that they were bound to allow it greater weight than they did. Id.—Indecency of Speech—Evidence.—Evidence that the prosecutrix commonly indulged in indecency of speech.is not admissible to illustrate the question whether she resisted defendant; it not appearing that such conversation accompanied or invited lewdness of behavior.
Id.—Reputation for Chastity.—If defendant produces evidence of indecent conduct of the prosecutrix with other men, the prosecution may in rebuttal submit evidence of her general good reputation for chastity.
BRITT, C. Defendant was convicted of the crime of assault with intent to commit rape. It is claimed that the evidence was insufficient to sustain the verdict. Defendant kept a confectionery shop which fronted immediately on one of the principal streets in the city of Sacramento. About twenty feet from the street entrance of the shop, and separated from the saleroom by a glass partition covered by a lace curtain, was a small back room furnished with tables and chairs; there was an open doorway through such partition at the corner of the saleroom into this smaller apartment, and some shelves were ranged in front of the partition. The female alleged to have been assaulted [568]was a girl over fourteen but less than fifteen years of age, and, it seems, of rather small stature. According to her testimony, she went into defendant’s shop shortly after 12 M. of the day in question intending to buy candy; he seized her by the hand and pulled her into the said smaller room and made her sit on a chair and sat down himself in front of her; he then exposed his genitals and lifted her clothes and was in the act of taking down her drawers when one Healy entered the shop; as soon as defendant heard Healy’s footsteps he left her and ran out. From the time defendant first took hold of her hand until said Healy came in she did not say one word, nor did defendant say anything to her; she was much frightened and struggled to get away but he held her;- part of the time held both her hands in one of his; she testified, “I wanted to holler out, but couldn’t; I was just like something had struck me; I don’t know why I could not holler out.” She went immediately with Healy to the office of the district attorney and made complaint.
Said Healy was an officer employed by the Society for the Prevention of Cruelty to Children. He testified that he saw defendant through the open front door of the shop pulling the prosecutrix toward said hack room; that he “wanted to get good evidence against him,” and did not enter the shop until several minutes later; people were continually passing, and anybody looking into the shop could see distinctly what transpired there, but not in the smaller room; that he went in quickly and found defendant holding the girl down¿ and himself exposed as she stated. In several particulars the testimony of Healy tended to corroborate that of the prosecuting witness, but there were also material discrepancies in their statements. It was in evidence that if there had been any struggle or loud noise in defendant’s place of business it would have been heard in an adjacent barber shop which was separated from the former by a thin board partition only, and that none was heard. Defendant denied any attempt at intercourse, hut admitted that he wantoned with the girl, and claimed that this was on her invitation. He was then twenty-eight years of age.
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