People v. Burdette

BARNARD, P. J. The defendant was charged with assault with intent to commit rape and, in a second count, with robbery. Two prior convictions of felonies were also charged. He pleaded not guilty and denied the prior convictions. A jury having been waived, the court found him guilty on both counts, and further found that the allegations as to the prior convictions were true. Judgment was pronounced sentencing him to imprisonment on each count, the two sentences to run concurrently. From that judgment the defendant has appealed.

On the evening of June 28, 1946, Jose Mendoza and a Mrs. Tyler, having gone for a drive in Mendoza’s automobile, parked the car in a field at the outskirts of San Bernardino. While they were sitting in the car, around 10 o’clock, a colored man approached and stuck an automatic pistol into Mendoza’s side, threatening to shoot if he did not keep still. This man then took Mendoza’s wallet from his pocket, took $27 in bills therefrom and returned the wallet. He then put the money in his pocket and flashed a flashlight into his victims’ faces. He then went around the car to the side where Mrs. Tyler was sitting and opened the door. He slapped Mrs. Tyler in the face and pulled her, at least partially, from the car. He then, while still keeping the gun in his hand, did a number of things which it is unnecessary to describe, which are the basis of the charge and conviction of assault with intent to commit rape. He then left, telling his victims not to move until he had gone.

Mendoza and Mrs. Tyler went to a hospital and a complaint was then made to the sheriff’s office^ Early the next morning sheriff’s deputies found shoe prints on both sides of the area where this car had been parked. They followed these footprints to the appellant’s house, arriving there about six o’clock that morning. The appellant got up from bed to let the officers in. When asked as to what shoes he had worn on the previous evening he gave the officers a pair of shoes which corresponded identically with the shoe prints left around the car and leading to his house. The officers found a shotgun in appellant’s house and when he was asked if that was the only gun he owned he replied that it was. Later, the officers found an automatic pistol with two clips of cartridges in a drawer in the appellant’s bedroom. The appellant admitted that these belonged to him. An expert testified as to what he had found from a microscopic examination of various stains and particles found on the clothing of the appellant [593]and that of Mrs. Tyler, and of scrapings from underneath appellant’s fingernails.