People v. Smith

BARNARD, P. J. The defendant was charged with a violation of Renal Code, section 261, subdivision 3, in that on July 24, 1954, he accomplished an act of intercourse with the complaining witness against her will and over her resistance. He was also charged with a prior conviction of assault with intent to commit rape, with a prison term served. He pleaded not guilty and admitted the prior conviction. After a trial before the court without a jury he was found guilty. Probation was denied and he was sentenced to state prison for the term provided by law. He has appealed from the judgment, with a purported appeal from an order denying his motion for a new trial, although the record does not disclose that such a motion was made.

The incident in question occurred about 1 a. m. on July 24, 1954. The complaining witness testified that she was sleeping in a bedroom in her home and that her children, one 19 months old and the other 3 months old, were sleeping in the same room; that she awoke and saw the defendant standing by her bed; that she raised herself and screamed; that he grabbed her and put his hand over her mouth; that he told her not to scream and that it would not do any good to scream; that when he let go of her mouth she screamed again; that he then said, “If you scream I will kill you”; that she pleaded with him, fought with him, and tried to get loose but he would not let her go; and that he accomplished his purpose. -

When the defendant left, the complaining witness ran to [540]the home of her parents who lived next door. She was crying and practically in hysterics when she woke her mother. Her mother and father dressed and went to look for the appellant but did not find him. Police officers were called and two officers arrived at 2:50 a. m. One of these officers testified that when he arrived the complaining witness was crying; that there was a smudge mark on her face and also a slight abrasion on the side of the jaw below the mouth; that they tried to talk to her but could not get much of a statement; that she was walking the floor and crying all the time; that they could not get a statement that you could really put together until after they got her into the doctor’s office; and that they arrived at the doctor’s office with her at 3:15 a. m. The other officer testified that when they arrived the complaining witness was crying and wringing her hands, that “she didn’t seem to make much sense when we talked to her, until we kind of got her quieted down,” and that “there was marks across her mouth, kind of abrasions” which were “right over her mouth, on each side. ’' The doctor testified that he examined the complaining witness about 3:15 a. m.; that he found evidence of recent intercourse, with a slightly swollen condition ; that he did not notice any smudge marks or anything about her head; and that she was quite emotionally upset.