People v. Frye

• Decision Date: 31 March 1953
• Docket Number: Cr. N
• Citation: 117 Cal.App.2d 101,255 P.2d 105
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. FRYE. o. 2864.

Page 105

255 P.2d 105

117 Cal.App.2d 101

PEOPLE v. FRYE.

Cr. No. 2864.

District Court of Appeal, First District, Division 1, California.

March 31, 1953.

Robert Frye, in pro. per.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Charles E. McClung, Deputy Atty. Gen., J. F. Coakley, Dist. Atty. of Alameda County, and Richard C. Lynch, Deputy Dist. Atty., Oakland, for respondent.

FRED B. WOOD, Justice.

The defendant appeals from the judgment entered upon his conviction on two counts: Count 1, rape; Count 2, assault with intent to commit rape. He also appeals from the order denying his motion for a new trial.

His notice of appeal, dated June 7, was received by the clerk of the trial court June 10, 1952, but under Rule 31 should have been received June 6. It appears from a letter of the warden of the state prison where defendant was incarcerated, that the defendant requested permission to forward his notice on June 5, 1952, 'but due to the necessary delay in procedure here, we were unable to arrange for his signing and mailing the Notice until today [June 9] * * * We assume that this Notice is timely within the rule of People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868, and People v. Aresen, 91 Cal.App.2d 26, 204 P.2d 389, 957.' For those reasons we hold that the defendant made a constructive filing within the prescribed time limit and satisfied the jurisdictional requirements as contemplated by law.

(1) Defendant claims that his conviction of the crime of rape (Count 1) is not supported by the evidence.

In that behalf, he contends that he complaining witness' testimony was self-contradictory and that she related facts inherently improbable; that there was no evidence that she resisted him; that because of darkness, it is apparent she could not have identified him as the person who attacked her; and her testimony is not corroborated.

Our examination of the record convinces us that these points are not well taken. Corroboration of the prosecutrix' testimony is not necessary in such a case. Section 1108 of the Penal Code is inapplicable because rape is not one of the crimes therein mentioned. Section 1111 of that code is also inapplicable because the victim in a rape case is not an 'accomplice,' not a person 'who is liable to prosecution for the identical offense charged against the defendant on trial.' See People v. Gidney, 73 P.2d 1186, 10 Cal.2d 138, and 22 Cal.Jur. 399.

As a reviewing court, we 'must accredit to the decision of the trial judge a familiarity with the witnesses and their testimony and that in denying a new trial he acted with understanding and with a regard for the function of the jury. Those instances in which the appellate court have overridden the conclusions of the jury and the trial court are where the testimony of the complaining witness is uncorroborated and it is so obviously and so inherently false and unbelievable that reasonable minds may not differ with respect to its character. People v. Jefferson, 31 Cal.App.2d 562, 566, 88 P.2d 238, 240. For testimony which has effected a conviction by a jury with the approval of the trial court 'to justify a reversal * * * on that ground it should clearly appear that the verdict is the result of passion and prejudice.' Ibid. People v. Lewis, 18 Cal.App. 359, 123 P. 232.' People v. Holquin, 48 Cal.App.2d 551, 555, 120 P.2d 71, 73. See also People v. Brown, 100 Cal.App.2d 207, 223 P.2d 60.

The prosecutrix' testimony as to the first count was not inherently improbable; was believed by the jury; and, therefore, can not be rejected by us. A summary of the salient features of her testimony will suffice.

The victim lives with her family in Oakland, across the street from Raimondi Park. On the evening of October 28, 1951, at about 8 p. m., she left her home alone to attend a movie. When she reached a certain street intersection alongside the park (it was dark and there was poor artificial light at the corner) a man approached her walking in the opposite direction. He grabbed her, put both arms around her and threw her to the ground. At first she screamed but he put his hands on her throat, choked her and told her not to scream any more. He had a knife in his hand; she did not see it but she felt it, managed to grab the knife and threw it away. He then pulled her to her feet and marched her towards the rest room in the park. He had something pressed against her back, and told her to walk or he would shoot her. She did not see this object but assumed it was a gun. She asked him if he wanted her money but he refused it and said when he grabbed women like that he wanted intercourse. She did not scream after he had thrown her to the ground and told her not to scream because she was afraid. There were no lights in or around the rest room building. He took her into the ladies rest room and told her to lie down. She did not do so fast enough so he threw her down. He took her coat off and threw it over the rest room door. She told him she was pregnant, that he might hurt her and that she wanted to go home to her five children. He disregarded her statements, and told her she should have stayed home with her children. He then accomplished the act. It was without her consent. She was afraid he would injure her because she was pregnant and she thought he had a gun. He performed more than this act of intercourse. They were in the ladies room until 11:00 or 11:30. The man held her during most of this time and when not holding her stood where she could not get around him to get out. He smoked cigarets off and on. She was afraid to look at him but glanced at him every time he lighted a cigaret. About 11:00 he forced her to go into the men's room in the same building. He told her he usually killed women he caught like that, and that he would go just as far for rape as he would for murder. She was again pushed to the floor and he again had intercourse more than once. They stayed in the men's room about an hour and a half or two hours. During this time she heard someone enter the adjoining room but did not scream because, as stated by her, 'I was pregnant and I could not wrestle with nobody.' He took her outside, had another act of intercourse outside the building and later, about 3:00 a. m., told her he would let her go. She went towards her home and on the way met two policemen in a patrol car. They took her to the inspector's office and then to Highland Hospital where she was examined. The doctor who examined her testified that the examination showed injuries and abrasions about the external genitalia, live sperm in the vagina and a pregnant condition about four months along. It was the doctor's opinion it would take a very forceful act of intercourse to cause the abrasions. The police showed the witness some pictures of various men, prior to March 1952. She told them that one man 'favored' the man who raped her. She found out that this man was six feet two or more inches tall and on that basis because he wasn't the man that raped her, because the latter man was not as tall as her husband who was six feet two inches tall. In March, 1952, she identified a picture of defendant from a group of pictures shown to her by the police, as the man that raped her. She identified defendant in court as the same man that raped her on the 28th of October, 1951.

Concerning resistance by the victim, the statute defines rape as an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances, among others: '3. Where the resists, but her resistance is overcome by force or violence' and '4. Where she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution'. Pen.Code, § 261. The force which defendant exerted and the threats he uttered, particularly in view of the victim's pregnant condition, amply support an implied finding that her resistance was overcome by the methods defined in each of clauses 3 and 4 of section 261. The following observations of the reviewing court in People v. Tollack, 105 Cal.App.2d 169 at pages 171-172, 233 P.2d 121, at page 122, are peculiarly apt in our case: 'If the female resists, but her resistance is overcome by force or violence, rape is committed under the conditions prescribed by subdivision 3 of section 261. The gravamen of the offense is the use of force or violence sufficient to overcome the resistance of the female. Bodily injury is not the essence of the offense. The word 'force' implies physical power exerted upon a person or thing. People v. McIlvain, 55 Cal.App.2d 322, 328, 331, 130 P.2d 131. In People v. Bradbury, 151 Cal. 675, at page 677, 91 P. 497, quoting from Bishop on Criminal Law, it was said: "The kind of physical force is immaterial; * * * it may consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will." The prosecutrix testified that while on the sidewalk defendant took her arm and turned her around; that he edged her from the sidewalk to the place where the act was committed; put his hands underneath her clothes and fondled her; put his hand inside her blouse; and that he raised and pushed her clothing aside. The evidence was sufficient to bring the offense within subdivision 3 of section 261. If the female is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution, rape is committed under the conditions prescribed by subdivision 4. Threats to do bodily harm were made and the...