People v. Fontana

THOMPSON, J. The appellants were jointly charged, tried and convicted of the crime of rape perpetrated upon the same female and accomplished by each defendant in succession at the same time and place by means of force.

The defendants were riding together in an automobile at night along Twelfth Avenue in Sacramento. They overtook Mrs. Donna Roberts, a young married woman eighteen years of age, who was a total stranger to them. She was walking along the sidewalk. They accosted her, stopped and forced her into the car. She was taken to a secluded field in North [381]Sacramento, where, by means of force, first Vincent Pontana and then Joe Shiro had sexual intercourse with her. Both defendants were present during the commission of the offenses. The defendants admitted having intercourse with the prosecutrix, but contend that it was accomplished with her consent. The testimony is conflicting regarding the use of force, but there is ample evidence to support the implied finding that the crimes were committed by means of force. After the defendants had successively completed their access, the prosecutrix was returned to the place where she was picked up, and released. She found a policeman in a restaurant near by to whom she related her story. He testified that she was hysterical. The defendants were subsequently arrested, jointly charged with rape and convicted. Prom the judgments which were pronounced against them, the defendants have each appealed.

At the beginning of the trial the defendants demanded separate trials, which were denied. In support of these motions, it was contended that the defendants were jointly charged with separate crimes of rape, and that incidentally each might also be found guilty of aiding and abetting the crime of the other, under the provisions of section 31 of the Penal Code. While each defendant was guilty of separate access to the prosecutrix, for the purpose of determining whether they were entitled to separate trials under the provisions of section 1098 of the Penal Code, they may be deemed to have been charged with but one public offense. Both defendants co-operated in one unlawful transaction of jointly seizing by force and transporting the prosecutrix to a secluded spot, where in succession each raped the victim in the immediate presence of the other. The facts of the case are so intermingled, that for the purpose of determining their right to separate trials, both offenses may be considered one crime. It would be unreasonable to hold that two burglars who conspired to enter a building to commit larceny, and because one stole a suit of clothes and another robbed the cash register, which constitute different offenses, that they are therefore entitled to separate trials. It would be equally absurd to hold that two individuals, who are jointly charged with robbery, would be entitled to separate trials as a matter of law, merely because it appeared that the highwaymen fell upon their victim and one stole his