People v. Collier

• Decision Date: 28 October 1952
• Docket Number: Cr. 774
• Citation: 249 P.2d 72,113 Cal.App.2d 861
• Parties: PEOPLE v. COLLIER.
• Court: California Court of Appeals Court of Appeals

Page 72

249 P.2d 72

113 Cal.App.2d 861

PEOPLE v. COLLIER.

Cr. 774.

District Court of Appeal, Fourth District, California.

Oct. 28, 1952.

Hearing Denied Nov. 25, 1952.

Richard L. Rykoff, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

BARNARD, Presiding Justice.

The defendant was charged in Count I with the crime of rape; in Count II with assault with intent to commit rape; in Count III with rape; in Count IV with assault with intent to commit rape; and in Count V with assault by means of force likely to produce great bodily injury. The charges involve four different women, the fourth and fifth counts being different charges in connection with the same incident. The jury found him guilty on the first four counts and made no finding on the fifth count, which was then dismissed. This appeal is from the judgment and from an order denying a new trial.

These four incidents all occurred within a few blocks of each other in the Frontier Housing Project in San Diego, in which project the appellant had lived for several years. No attempt was or is made to challenge the testimony of the victims, except as to their identification of the appellant. At the trial each of the women positively identified the appellant as her assailant, giving good reasons therefor, and in each instance her testimony was not shaken by an extensive and able cross-examination. Each of them had previously picked out the appellant's picture from seven different photographs shown them by an officer, and had later picked him from a police line-up of four men. Each recognized his voice, in addition to other means of identification. None of them had previously known any of the others, and each made the previous identifications independently and without suggestion.

The woman involved in the first count was married and the mother of two children. On her way home on October 23, 1951, between 6:00 and 6:30 p. m. she was walking uphill on Leland Street, which at one point passes along the edge of a canyon. Halfway up the hill she met a man who grabbed her and threatened to cut off her head if she hollered. He had a knife in his hand and dragged her down into the canyon, where he raped her.

The appellant testified that he particularly recalled that on October 23, he took a Mrs. Fowler to choir practice at her church, in accordance with his usual custom; that he left home about 6:45 or 6:50 p. m., and picked up Mrs. Fowler where she worked at about 7:15; that he left her at about 7:45 and returned to his home; arriving there at 8:30; and that he did not leave the house after that. He was confronted with a police record showing that on October 23 he arrived at the police station at 7:50 p. m., where he paid a fine for a traffic violation. After being shown this record he said that when he got home he was told that an officer had left word for him to come to the police station, which he did. He then admitted that if he had taken Mrs. Fowler as he said, and then gone to his home, he could not have arrived at the police station before 9:00 p. m. He then admitted that he did not remember anything that happened on October 23, saying that all he had meant to say was that if it was a Tuesday or Wednesday it was one of those days on which he took Mrs. Fowler to church. Mrs. Fowler's testimony in this connection threw further doubt upon appellant's alibi. There was also evidence that one could drive from near where this attack occurred to the place where Mrs. Fowler was employed in 12 minutes.

The woman involved in the second count was married and the mother of two children. On November 21, 1951, about 7:00 p. m., she was standing in front of a school waiting for a Cub Master to take her to a Cub Scout meeting. There were street lights some half block away in either direction. She saw a man coming under one of the street lights. When he approached he threatened her with a pistol, and told her if she screamed he would kill her. He pulled her into the school yard, threw her on the ground, and attempted to rape her. When she managed to scream, he ran through the school yard to another street. Two boys came to her assistance and saw the man running away.

The appellant testified that he did not recall the date of November 21, but said that if it was a Wednesday he took Mrs Fowler to prayer meeting; that he customarily took her to prayer meetings on Wednesdays, following the same schedule as on Tuesdays. Mrs. Fowler testified that she had an understanding with the appellant for him to pick her up on Tuesdays and Wednesdays; that she worked until 7:30, but usually got away about 7:15 on those days; that she remembered riding with the appellant on the night of November 21; and that she went to prayer meeting. Later, she testified that all she remembered about November 21 was that the appellant took her to prayer meeting on Tuesday and Wednesday nights, and that she did not have any idea what night of the week November 21 was.

The woman involved in the third count lived with her father and mother, and had never been married. She was walking up the Leland Street hill on her way home from work about 6:30 p. m. on December 15, 1951. About the same spot involved in Count I she was accosted by a man who grabbed her by both arms, face to face. He pushed her over the bank and into the canyon. He had a knife in his hand and threatened to cut her throat if she did not keep quiet. He threw her to the ground and raped her. She ran up the hill where she met an officer in a prowl car at 6:45 p. m. After a 10-minute search for the man, they returned to the canyon where the officer found her panties. In addition to the picture and the line-up, this woman was taken to the appellant's home on December 29, and identified him as her attacker.

The appellant testified that on December 15, he was at a friend's house from 5:00 p. m. to 2:00 a. m., playing poker with four men. He could not remember what he had done that day, where he came from when he went there, whether he went home for dinner, or whether he ate dinner at all. He said the same four had played poker on December 8, but he could not remember where they played or when they started. The testimony of the other card players revealed several uncertainties and variations as to times and dates. One man was sure of the date since he had broken his arm in November and 'because most I go to the doctor every Monday morning.' He could not identify any other Saturdays in connection with any other Monday visits to the doctor.

The woman involved in the fourth count was married and had children. About 6:15 p. m. on December 24, 1951, she walked up a little hill near Leland Street to look at the view. A man approached, grabbed her and threatened to cut her throat if she screamed. She screamed, and the man struck her several severe blows across the face and head. As she fell to the ground she saw him running away. She did not have a purse and the man did not ask for money. As she ran for home a neighbor came to her assistance. She was admitted to the hospital at 6:42 p. m. Her dress was badly torn and there were cuts on her ear, cheek and chin. Before she was given medical attention and her wounds stitched, the appellant was brought to the hospital, arriving at 7:08 p. m. When told that the officers wanted to bring a man in the woman objected violently. She was hysterical and very frightened, and screamed that she did not want to see anyone. The nurse covered her face except for one eye and the appellant was brought in. When asked if this was the man who attacked her she shook her head and said 'No'. At the trial she testified that at that time she did not recognize him and to her he was just a man.

The appellant testified that on December 24, he left downtown San Diego shortly after 6:00 p. m., having picked up two sailors; that he drove out Pacific Highway and Midway on his way home; that when he turned off Midway at Fordham he stopped to let them out; that they then said they would ride over to Frontier Street; that after going two blocks they stopped him and held him up; that this was between 6:30 and 7:00 p. m.; that one of the sailors held a knife on him while the other took $29 from his pocket; that when he tried to hit one of them the other struck him with the knife, cutting his thumb; that his thumb bled on the pavement and the sailors ran off; that he drove home with his left hand, holding his right hand up; that on the way he met Paul Dunn who followed him home; that he got home about 6:45 p. m. and told his wife to call the police; and that the police arrived shortly thereafter and took him to the hospital.

The appellant made several conflicting statements about this robbery. Among other things, he first said the sailors had taken $9, later changed this to $29, and $12 was found on him when he was taken in. The next morning he and an officer visited the scene of the alleged attack. When no sign of blood was found, he claimed it had rained that night. Later that day the officer found many blood marks near where the woman had been attacked the night before. There was a deep cut crossways on the appellant's thumb, which did not jibe with his story of how the sailor had cut him. The scene of the claimed robbery was a heavily traveled street a short distance from Midway, a main highway. Paul Dunn and another friend of the appellant contradicted him in several respects. From the entire evidence in this connection, an inference may fairly be drawn that the robbery story was invented for the purpose of explaining the cut received in a struggle with this woman.

The appellant first contends that the evidence, with respect to his identification, is so improbable and incredible that it must be held insufficient to support the verdict. It is argued that none of the victims could have seen her assailant well enough to identify him; that each attack occurred some...