People v. Kimball

• Decision Date: 21 December 1953
• Docket Number: Cr. 5010
• Parties: PEOPLE v. KIMBALL.
• Court: California Court of Appeals Court of Appeals

Page 582

264 P.2d 582

122 Cal.App.2d 211

PEOPLE v. KIMBALL.

Cr. 5010.

District Court of Appeal, Second District, Division 3, California.

Dec. 21, 1953.

Gladys Towles Root and Herbert Grossman, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and James D. Loebl, Deputy Atty. Gen., for respondent.

PARKER WOOD, Justice.

Defendant was charged with the crime of rape committed with force and violence. Trial by jury was waived. He was adjudged guilty of 'Assault with Intent to Commit Rape, a felony, a lesser offense than that charged in the information but necessarily included therein.' He was sentenced to imprisonment in the state prison. He appeals from the order denying his motion for a new trial.

Defendant contends that the court erred in finding him guilty of assault with intent to commit rape.

Vera, the prosecutrix, had known defendant about four months prior to July 13, 1952, the day of the alleged offense. During the first three months they saw each other about every day and he treated her kindly and gave her a few small gifts. They agreed to be married in September. On June 10, 1952, defendant moved to the Cromwell Hotel. Vera was present when he registered at the hotel, and he told the hotel clerk that he was ging to marry Vera, and he asked the clerk if Vera might go upstairs. The permission was granted, and Vera went to his hotel room and helped him unpack his suitcase and trunk. She testified that she did not recall whether or not, thereafter, she went with him on many occasions to his room. About three days after he moved to the hotel, she went alone to his room, got a shirt and jacket, and took them to him. She testified that she did not have a key to his room, but she always told him to tell the clerk that she was coming; and that he told the clerk by telephone that he was sending Vera to his room to get wearing apparel for him. About one month before July 13 while defendant was in her home she refused to go with him, and he picked up a 'buggy cart' and slammed it against a window--breaking the glass and the frame of the window. She then told him that she did not want to see him again and that he should pay for the damage to the window.

On said July 13 the defendant, who was working at a parking lot near Seventh and Hill Streets in Los Angeles, requested her to meet him at 2 p. m. at a corner of those streets to make arrangements about fixing the window. She met him there and then they went into a bar and he drank a glass of beer and she drank a 'coke.' After they left the bar he asked her if $7 would pay for fixing the window. She replied that she did not know. He said that it was a hot day and he would like to go to his room and change to lighter clothes, and then they would return and have a lunch. They arrived at his room about 4 p. m. She testified that he changed his shirt four or five times, and when she saw that he would not leave any shirt on, she became suspicious and opened the door, intending to leave, but he jumped at her like a beast, grabbed and twisted her arm, and shoved her onto the bed; they started wrestling and fighting; he struck her mouth with his hand, pulled her hair, slapped, beat, bit, and choked her; she fought him until he overpowered her; he forced her to take off her coat and skirt; he yanked her blouse off and took her pants off; he finally forced his privates into her privates; she was bleeding, and the sheet and her slip were bloody; he pulled her off the bed; when she said she wanted a drink of water, he shoved her face into the wash bowl; he told her that he would kill her if she told anything; she had never had sexual intercourse before they were in his room about three hours. She testified further that after they left the hotel they walked to and stopped at several bars; he took her in a taxicab to her home; on the way there he stopped and bought a can of beer; they arrived at her home about 8:30 p. m. and defendant dismissed the taxicab; she made no complaint to anyone while in the bars or on the way home, and she was too frightened to leave defendant; he was watching her all the time; she went into her house; he went to the door, but she would not let him in; then he threw the beer can against the outside wall; he remained at her house five or ten minutes; she lent a flashlight to him; she called a taxicab for him; then her brother arrived and she fainted.

Her brother Robert testified that when he arrived the defendant got into a taxicab and left; blood was on her neck, arms, knees, and calves of her legs; she had a swollen nose, swollen cheek, and scratches on her neck and arms. She received medical attention at the receiving hospital.

A police officer testified that he saw Vera on July 13 before she went to the receiving hospital; he could see what appeared to be bruises on both sides of her neck, extending from back of the ear to the front of the throat.

After defendant had testified that he went to Vera's home about 2:00 a. m. of said July 13 and went to bed with her and stayed at her home until 10:30 a. m., she was recalled by plaintiff for further direct examination. She then testified that defendant came to her house about 3:00 a. m. of said day and knocked on the door; she told him to leave, but he came in; she served coffee and tried to reason with him about coming there at that time; she would say that he left about 5:00 a. m. 'because he had a habit of leaving when people were getting up.'

Defendant testified further that, before he moved to the Cromwell Hotel, he stayed at Vera's house about two months; he moved some of his belongings to her house, such as a television, clock, tool box, and some clothing; during that time he slept with her on her bed many times, and they tried to have intercourse but she claimed she was too small for him; he brought the groceries and gave her five or ten dollars a week; she helped him move to the hotel on June 10; she went with him to his hotel room many times; she has gone to his room when he was not there; he made arrangements with the hotel clerk so that she could get the key to his room; about every time they were in the room they would lie on the bed, and he...