People v. Smith

SHINN, P. J. Defendant was convicted of the crime of forcible rape (Pen. Code, § 261, subd. 3), and appeals from the judgment and order denying him a new trial. The cause was submitted on the preliminary transcript with each side reserving the right to put on additional evidence. Defendant urges as a ground for reversal the insufficiency and inherent improbability of the evidence.

The prosecutrix, a 24-year-old housewife weighing 90 pounds, testified as follows: She went to bed at about 2:25 a. m. on the morning of August 6, 1955, shortly after the departure of some guests who had visited her at the apartment [85]she occupied with her three children and her husband, who was not then at home. Soon after, she was awakened by defendant who was in her bedroom. When he started to grab her she screamed and pleaded with defendant but he forcibly engaged in an act of sexual intercourse with her against her will. She remained in bed until he left and then went to the apartment of her neighbors, the Hansens. As a result of the encounter she suffered shock and had marks on her throat and a scratch over her eye. She identified a cigarette lighter and a tie clasp (which defendant had been wearing earlier in the evening) as having been found on the bed by her husband after the incident. On cross-examination she denied that she had previously had sexual intercourse with defendant, denied that she had ever discussed with defendant his ability to have children, but admitted that about 8 p. m. on the evening of August 5th defendant had picked her up in his arms and hugged her.

Bollinger, the operator of the motel where the prosecutrix lived, testified that defendant also lived in an apartment on the premises. Sometime after 2 a. m. on the morning of August 6th, he (the witness) heard a woman scream twice. After a telephone call from Mrs. Hansen he went outside and saw defendant leave the prosecutrix’ apartment fully dressed but with his tie pulled to one side. He asked defendant what was happening and defendant said “My God, what is she trying to do to me?” He then saw the prosecutrix come out of her apartment and go to the Hansen’s apartment. He saw her at the Hansen’s. She was crying and appeared to be holding her throat.

Hansen, who lived in the apartment next to the prosecutrix and her family, testified that shortly after 2:15 a. m. he heard two loud screams. He then heard crying and heard the prosecutrix saying “Steve, please let me alone, Steve. You are hurting me.” He telephoned Bollinger and while he, Mrs. Hansen and Bollinger were standing on the front drive of the motel debating what to do, defendant left the prosecutrix’ apartment and the prosecutrix came out shortly thereafter. She was crying. She had a red abrasion on her throat. Mrs. Hansen testified to the same effect.