People v. Blankenship

• Decision Date: 23 March 1951
• Docket Number: Cr. 4527
• Parties: PEOPLE v. BLANKENSHIP.
• Court: California Court of Appeals Court of Appeals

Page 835

228 P.2d 835

103 Cal.App.2d 60

PEOPLE v. BLANKENSHIP.

Cr. 4527.

District Court of Appeal, Second District, Division 2, California.

March 23, 1951.

Hearing Denied April 19, 1951.

Morris Lavine, Los Angeles, for appellant.

Fred N. Howser, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., for respondent.

WILSON, Justice.

Defendant was charged by information with ten felony counts arising out of assaults on four women and with a prior conviction of attempted kidnapping. He admitted the prior conviction and after trial before the court without a jury he was found guilty of counts IV, VI, VII and VIII. The other six counts were dismissed. Defendant's motion for new trial was denied and he was sentenced to the state prison for the term prescribed by law. He has appealed from the judgment and 'orders.'

As grounds for reversal defendant contends: (1) Count VII of the amended information fails to state a public offense; (2) the evidence is insufficient as to the convictions on each count; (3) the convictions as to counts IV, VII and VIII are contrary to law due to a variance between pleading and proof; (4) his rights under the due process clause of the Fourteenth Amendment to the Constitution of the United States have been violated.

Count VII

In count VII of the amended information defendant was charged with the crime of 'assault with intent to commit rape' in that he did 'willfully, unlawfully and feloniously make an assault upon _____ [naming her] a female person not then and there the wife of said William C. Blankenship, with the intent then and there and by force and violence to have and accomplish an act of sexual intercourse with and upon said _____.' Defendant contends the information is insufficient to charge him with the offense of assault with intent to commit rape because the type of rape alleged to have been committed is that specified under subdivision 3 of section 261 of the Penal Code and there is no allegation that 'she resisted but the resistance was intended to be overcome by force and violence.'

Although defendant did not demur or otherwise object to the sufficiency of the information in the trial court and raises the question for the first time on appeal, if the facts stated in the information do not constitute a public offense the objection is not waived by his failure to demur. People v. Nelson, 58 Cal. 104, 107; People v. Schoeller, 96 Cal.App.2d 61, 62, 214 P.2d 565; People v. Schiaffino, 73 Cal.App. 357, 359, 238 P. 725; People v. McKean, 76 Cal.App. 114, 116, 243 P. 898.

An information is sufficient if it contains in substance a statement that the accused has committed some public offense therein specified. 'It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.' Penal Code, sec. 952. In People v. Girr, 53 Cal. 629, an indictment charging that the defendant 'did willfully, feloniously, and of his malice aforethought commit an assault upon the person of _____ [named] with intent her, the said _____ [named] then and there to rape' was held to be sufficient. In People v. Estrada, 53 Cal. 600, it was held that in an indictment for assault with intent to commit rape it was not necessary to allege that the person assaulted was not the wife of defendant; that the question of intent with which the assault was committed is a question of fact and if there is evidence tending to prove the intent was as alleged in the indictment, the verdict will not be set aside on the ground the evidence is insufficient to sustain it. In People v. Burns, 63 Cal. 614, defendant was accused by information of feloniously and burglariously entering a certain house with intent to commit rape. Objection was made that the information did not state under which set of circumstance specified in section 261 the act was intended by the defendant to be accomplished. The information was held to be sufficient.

Defendant was not charged under section 261 with the crime of rape but was charged under section 220 of the Penal Code which provides: 'Every person who assaults another with intent to commit rape' is punishable as therein specified. The offense is not described. Since the charge is in the language of the statute the information is sufficient.

The events which preceded the alleged assault are as follows: The prosecutrix had advertised for work at home, stating in the advertisement that she was desperately in need of employment. Upon her return home after a short absence her husband informed her a Mr. Al Anderson had telephoned and left a number for her to call. She called the number and talked to a person who identified himself as Al Anderson. He told her he needed help immediately and described the type of work which was cutting stencils and mimeograph work. He told her the rate of pay and urged her to start work at once. He also asked her if she were married and if she were attractive. He then made arrangements to meet her at the corner of Figueroa and Washington Boulevard at 8:30 that evening. About five minutes after 9:00 defendant drove up and identified himself as Al Anderson. The prosecutrix got into the car and they drove away. He did not state where they were going but in their telephone conversation he had told her it was some distance out of town and he would furnish the transportation. After they had driven for some time they came to a small town. Defendant appeared surprised and said, 'This looks like San Pedro. If it is we have driven miles farther than we should have.' He then drove into a filling station and asked for directions. They drove on, going uphill, and finally got onto a bad road. Defendant told the prosecutrix they were going to his ranch and the roads were bad. They turned off into a little road and after driving for several minutes defendant stopped the car and said, 'This is it.' She asked him, 'What do you mean, this is it?' Defendant replied, 'Just what I said, this is it.' He swung around and in his left hand she saw a knife blade. She begged him not to hurt her and he said, 'I am not going to hurt you, do as I say and you will not get hurt.' He told her to get into the back seat. She reached for the door and he said, 'Don't reach for that door,' and brought the knife practically in front of her face. She asked him what he wanted her to do and he said, 'Crawl over the seat.' She got into the back seat because he was armed and she was not and she thought it would be useless to fight. Defendant got into the back seat at the same time and told her to take off her clothes. She tried to 'stall' and offered him money which he refused. At that time she told him to put away the knife and he did so. She had all her clothes off with the exception of her pants when police officers arrived and flashed lights into the car. She tried to open the door but could not find the door handle. She told defendant he had better open the door and then a policeman opened the door and flashed a light in her face and asked what was going on in there. She grabbed the officer by the arm and said, 'Save me, get me out of here.' He asked her if the man had brought her there against her will and she said, 'Yes,' and jumped out of the car and ran to the police car and got into the back seat.

Defendant's contention that the evidence is insufficient is upon the ground there was no resistance shown upon the part of the prosecutrix. He points to the long drive out into the wilderness, their stopping, and finally parking out on a lonely road and the fact that she undressed and that she allowed herself to be photographed by the police officers with only her pants and brassiere on as proof of her lack of resistance.

Such evidence when considered with that hereinabove related supports a finding that defendant assaulted the prosecutrix with the intention of committing rape and with the intention of overcoming her resistance with force and violence. He answered her advertisement and knew she was in need of work. He offered her employment and told her it was outside Los Angeles and he would furnish transportation. He told her she was to work at his ranch and it was not until he stopped and swung around with a knife blade in his hand, stating, 'This is it,' that she knew something was wrong. He told her to get into the back seat and that he would not hurt her if she did as he told her to do. She offered him her coin purse and he refused to take it. He told her to take off her clothes and he got into the back seat with her and removed his trousers. This evidence does not indicate consent but that the victim was afraid to offer resistance because defendant threatened her with a knife; that she removed her clothing not willingly but because she was afraid to refrain from doing so. Insofar as the picture is concerned, she consented to have it taken in a state of undress because the officers requested it, presumably for use as evidence. Considering their position of authority and her mental state at the time it does not indicate her consent to the acts of defendant.

Count IV

_____, a housewife, was at home alone on November 2, 1949, between 2:00 and 2:15 in the afternoon when a man, whom she positively identified as defendant, rang her doorbell and inquired concerning the purchase of her house which was for sale. He was alone and told her he would like to look through the house. She brought him into the house and showed him through the various rooms. He then asked to see her title papers. She went to her linen closet to obtain them and reached in the lower shelf. As she rose up she felt a blow on the head and automatically screamed. Defendant put his left arm around her, holding her shoulders in front and his right hand over her mouth and said, 'If you scream I will kill you.' He took his hand away from her mouth and she said, 'I am not going to scream, what are you...