People v. Oster

MOORE, P. J. About 11 o’clock in the evening of February 1, 1953, the prosecutrix, J. W., age 17, walked westward on the sidewalk of 23d Street in Long Beach, carrying her shoes in her hand. She had just left a theater and was within a half block of her home. A cream colored automobile drove alongside her and parked at the curb. Its driver followed the young lady until she turned and looked at him. He grabbed her by putting his hand around her mouth and pulled her down onto the adjoining lawn. As he lay on top of her with one arm under her he told her not to yell. She jerked her head away and “told him to stop it.” He told her he was going to “have” her and offered her his watch and ring and placed his hand on her leg. She managed to rise to her feet but he threw her to the ground again and told her he would cut her throat if he had a knife. As they struggled he declared he “was going to have” her and touched her private parts beneath her garments. She then told him she would go with him to his car which he had repeatedly demanded. On the way she became hysterical, began to cry and ran to a neighboring house, knocked and related her experience to the master, the witness Haaland. In five minutes the police were there. They captured the miscreant, retrieved gloves, purse and one shoe and returned to the Haaland home where she recognized appellant as her assailant.

But another chapter in the career of this unfortunate man preceded his bestial experience on 23d Street. A few minutes before he overtook J. W. he had entered the automobile of Mrs. Hill parked in front of a café on Santa Fe Street. He found that he could start it “by merely flipping the key or the lever and stepping on the starter. ’ ’ He took it away without Mrs. Hill’s consent and immediately drove to 23d Street where he struggled with J. W. and was apprehended by the police.

[752]He was duly accused by the district attorney, count I, with .assault with intent to commit rape by means of force and violence; count II, grand theft, by taking Mrs. Hill’s car; count III, violating section 503 of the Vehicle Code in that he drove Mrs. Hill’s automobile in her absence and without her consent, with intent to deprive her of its title and possession. After trial by a jury he was found guilty under counts I and III,- and acquitted on count II. His motion for a new trial and his application for probation having been denied, this appeal was lodged from the judgment of conviction.

The grounds urged for reversal are: (1) the evidence was insufficient to sustain the judgment; (2) he suffered double jeopardy; (3) the “complaint is outlawed by the statutes of limitation. ’ ’