People v. Schober

SHINN, P. J. Manuel Schober was accused by information of the crime of rape in separate counts, namely, in Count I' defendant accomplished the act against Mrs. F. who resisted but her resistance was overcome by force and' violence and, in Count II, the act was committed when the same victim was prevented from resisting by threats of great and immediate bodily harm accompanied by apparent power of execution. (Pen. Code, § 261.) In a jury trial defendant was convicted upon Count I. Count II was dismissed. Defendant’s motion for., a. new trial was. denied and he was sentenced to state prison. T-Ie appeals from the judgment and the order denying him a new. trial.

The points- on appeal are that the evidence was insufficient to justify the'verdict; there was error in the admission of testimony of the prosecutrix and in denying the motion for a new trial.

The essential facts in evidence are the following:' Mrs. F., cashier at. a'- market, left work January 27, 1961, at about 11 p. m.; she went to the Den Café with a girl friend, Frances Young; ghe had not .been there before; she met defendant whom , she had not known, and danced with him. At about 1:45 a.,m. Mrs. F., Frances and defendant left the Den to go to another café; Mrs. F.' and Frances went in Mrs. F. ’s car and defendant followed in his car; on the way they went to where Frances’ car was parked and there Frances decided not to accompany the others to the' café, and she departed. [461]Mrs. F. entered defendant’s car and they went to a café where they had something to eat. They then entered defendant’s car, Mrs. F. believing she would be driven to where her car was parked. They drove for a short distance when defendant turned into a vacant, unlighted parking lot. As to the foregoing there was no conflict in the evidence. As to the events which followed the jury had to choose between the account given by Mrs. F. and the version given by defendant. Mrs. F. testified that as soon as the car was stopped defendant got out, came around to the passenger’s side, entered the car, forced Mrs. F. down on the seat and got on top of her. She was partly under the steering wheel. Defendant twisted her left arm underneath her; she struggled to free herself and kept trying to push defendant away, but was helpless. She pleaded with defendant to desist and take her to her car. Defendant said: “Do you want me to hit you?” She answered “No” and defendant said then she had better stop fighting him. He kept twisting her arm and she was unable to move. Defendant accomplished an act of intercourse. During this time defendant had been struggling with Mrs. F. ’s undergarments and got them part way off. With the intention of accomplishing another act of intercourse defendant got out of the car and tried to get his victim to “scoot” toward the open door. Mrs. F. got out of the car. Her undergarments were part way down. She removed them, picked up her purse from the ground and fled from the parking lot. Defendant ran after her. Mrs. F. ran to a service station nearby and made a complaint to Mr. Wages, the attendant. Mr. Wages testified that when he first saw Mrs. F. and defendant they were standing still; Mrs. F. appeared to be saying something to defendant and she then ran. When she came to the station she was crying and hysterical. She had something in her hand which she put into her purse. He saw no sign of injuries upon her and no torn clothing. Mr. Wages saw defendant running with his pants partly down, and saw him fall. Wages attracted the attention of the police, who were in a car nearby. Defendant fled in his ear, without lights, and ran a boulevard stop sign. He was overtaken when he drove into a driveway and was found lying on a car seat. His pants had a large tear from the crotch half way to the knees. Defendant was placed under arrest. Returning to the service station with defendant the officer learned of the accusation of Mrs. F. Defendant when questioned admitted an act of intercourse and stated that it was with the consent of Mrs. F. The officer first observed