People v. Griffin

• Decision Date: 14 September 1951
• Docket Number: Cr. 835
• Citation: 235 P.2d 424,106 Cal.App.2d 531
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. GRIFFIN.

Page 424

235 P.2d 424

106 Cal.App.2d 531

PEOPLE v. GRIFFIN.

Cr. 835.

District Court of Appeal, Fourth District, California.

Sept. 14, 1951.

As Modified Sept. 19, 1951.

Burum, Young & Woolridge, Bakersfield, for appellant.

Edmund G. Brown, Attorney General, and William E. James, Deputy Attorney General, for respondent.

MUSSELL, Justice.

Appellant was found guilty by a jury of an attempt to commit rape in that on December 26, 1950, he aided and abetted one Richard Chaney in the commission of an assault with intent to commit rape upon the person of one Erma Kennedy. A verdict of not guilty was returned as to counts one and two of the information, which charged rape by force and violence. A motion for a new trial was made and denied, and after the denial of his application for probation, appellant was committed to the California Youth Authority.

No issue is raised as to the sufficiency of the evidence to sustain the conviction. However, a brief statement of the pertinent facts is necessary in view of the other questions presented.

On the evening of December 25, 1950, the prosecutrix, Erma Lee Kennedy, aged 16, attended a dance in Tulare county with her friend Edna Rowland. The girls had planned to stay at Edna's house after the dance. Leon McPhettridge and Richard Chaney, young men named in the information with appellant Gene Griffin, also attended the dance. Griffin danced with the prosecutrix and attempted to take her home in his car. She succeeded in eluding him and went to Edna's home with one Audie Joe Bell. Bell left and a short time later Edna came into the house and told Erma that the boys wanted to see her. Erma went outside and saw McPhettridge, Chaney and Griffin. Griffin told the prosecutrix that he would like to talk to her and she got in his car. Appellant then drove away and stopped in a grape vineyard about a mile from Edna's home. The prosecutrix testified that appellant started to 'get fresh' and in a few moments McPhettridge and Chaney drove up in Chaney's car; that at McPhettridge's request all of the parties then sat in Chaney's car. McPhettridge and Chaney were in front and appellant and Erma in the back. She further testified that appellant again 'got fresh' with her and tried to pull her down on the back seat; that she started to pull his hair and fight him off; that she asked Richard Chaney to help her and Chaney replied that he could do nothing for her; that appellant then attempted to have sexual intercourse with her and she got out of the car and started to run toward the camp; that she fell and hurt her knee; that appellant ran after her, took hold of her arms and said 'There is no use pulling away'; that he pulled her arms and pushed her back to the car; that she asked Richard to take her home and he laughed and said he couldn't do anything because defendant was 'his friend'; that Richard then asked appellant to let him in the car with Erma for a while; that she and Richard were in the car for approximately an hour, during which time Richard attempted to accomplish an act of sexual intercourse with her; that during this time appellant came up to the car and told Richard to hurry up as it was cold outside; that he was going to 'get in there'; that Richard got out of the car and Leon McPhettridge then got in the back seat and accomplished an act of sexual intercourse with her; that she then asked appellant if he was satisfied and if he would take her home and he said 'Hell, no. It is my time now'; that appellant then got hold of her arm, pushed her back in the car and accomplished an act of sexual intercourse with her; that she struggled and pulled his hair but that this did not stop him; that McPhettridge and Chaney then got back in the car and appellant left. On the following day the prosecutrix was examined by a physician and his testimony was that the prosecutrix had been forcibly raped.

Appellant made statements to the district attorney in which he admitted having attempted to have intercourse with the prosecuting witness and in which he corroborated many of the statements made by the prosecuting witness. Richard Chaney admitted at the trial that he had attempted an act of sexual intercourse with the prosecutrix.

Prior to the entry of his plea, appellant moved to set aside the second and third counts of the information on the grounds that no testimony had been taken at the preliminary hearing on the question of aiding and abetting and that no testimony had been taken at said hearing which would indicate that the crimes charged in the second and third counts of the information had been committed. In support of this motion appellant filed a number of affidavits in each of which it was stated generally that there was no testimony taken at the preliminary which indicated that the defendant Gene Griffin aided and abetted McPhettridge and Chaney in any of the acts committed. In opposition, the district attorney filed affidavits of the clerk of the justice court and the justice of the peace, in both of which it was stated that the complaining witness testified at the preliminary substantially as set forth in the statement of facts herein. It appears that at the time of the preliminary examination a shorthand reporter was not available and the district attorney and counsel for the defendant agreed to proceed with the hearing in the absence of a reporter. At the conclusion of the preliminary hearing the defendant was bound over to the superior court on the charge of 'rape'.

Appellant claims that it was prejudicial error for the trial court to refuse to strike the second and third counts of the information and argues that when there is no record taken at the preliminary examination the power to charge any crime disclosed by the testimony at the hearing is restricted to that set forth in the order of commitment. This contention is without...