People v. Meichtry

• Decision Date: 05 June 1951
• Docket Number: Cr. 5195
• Citation: 231 P.2d 847,37 Cal.2d 385
• Parties: PEOPLE v. MEICHTRY.
• Court: California Supreme Court

Page 847

231 P.2d 847

37 Cal.2d 385

PEOPLE v. MEICHTRY.

Cr. 5195.

Supreme Court of California, in Bank.

June 5, 1951.

Rehearing Denied June 28, 1951.

Morris Lavine, Los Angeles, for appellant.

Fred N. Howser and Edmund G. Brown, Attys. Gen., and Donald D. Stoker, Deputy Atty. Gen., for respondent.

SHENK, Justice.

The defendant appealed from a judgment entered on a verdict of guilty of assault with intent to commit rape. He questions the sufficiency of the evidence to support the implied finding that he had the intent as charged. He also claims that there was prejudicial error in the giving of instructions and that he was prevented from having a fair trial by asserted misconduct of the district attorney. He seeks a reversal of the judgment or a reduction of the degree of the crime to that of simple assault.

The information charged that the defendant committed the crime of assault with intent to commit rape on Bertha Kieber on November 19, 1949. The jury found him guilty as charged.

The defendant is fifty-one years of age, is married and has a young daughter He is Bertha Kieber's uncle and godfather. He had lived in the home of Bertha's father for about ten years prior to the establishment of his own home. Bertha was 29 years of age, married and the mother of a two year old boy. Their homes were a few miles apart.

The Kiebers had been working on the construction of their home with some help from the defendant. About 10:30 on the morning of November 19, 1949, after Bertha's husband and her brother-in-law, who had quarters in a separate house on the premises, had left for their employment, the defendant called unexpectedly. Bertha offered him coffee which he refused because he had had beer. The young son was playing in a pen in the yard. The record shows that after some general conversation concerning domestic matters and construction details the defendant made improper advances toward Bertha; that he pushed her into the bedroom and on to the bed; that she kicked and otherwise struggled; that the defendant released her only when she feigned alarm by saying that some one was coming and she ran into the kitchen; that in the kitchen she slapped him and told him to leave and that he left about noon. She told her husband of the incident on his return from employment and they reported the matter to the police. Bruises appeared on Bertha's right arm, she complained of internal injuries and went to a physician for examination.

The defendant was apprehended and he related to the officers a story substantiating the details reported by Bertha. In explanation of why he did it, he said he thought 'Bertha was ready' and that he 'could make out with her.' He admitted that she struggled and that the struggle was broken when she said some one was coming. On the stand he told a different story implying that Bertha, rather than he, was the intending paramour.

The defendant contends that the evidence is insufficient to support the verdict because there is lacking proof of any act or conduct on his part which showed an intent to use whatever force might be required to accomplish the act, and that at most he was guilty of simple assault. In reviewing an application for a reduction of the degree of the crime an appellate court may not judge the credibility of the witnesses nor weigh the evidence but may consider only its sufficiency as matter of law. People v. Thomas, 25 Cal.2d 880, 905, 156 P.2d 7.

The essential element of the offense charged is the intent to commit the act against the will of the complainant. The offense is complete if at any moment during the assault the accused intends to use whatever force may be required. People v. Stewart, 97 Cal. 238, 32 P. 8. The question whether the intent existed is one for the jury to determine from the conduct of the defendant and the surrounding circumstances. A determination by the court is permissible only when the facts afford no reasonable ground for an inference that the intent existed. See also People v. Woods, 75 Cal.App.2d 246, 170 P.2d 477; People v. Lutes, 79 Cal.App.2d 233, 179 P.2d 815.

The record of the complainant's testimony and the defendant's voluntary admissions clearly establishes a question for the jury on the issue of intent, and supports the implied conclusion that the defendant had the requisite intent which he did not abandon until the complainant's feigned alarm.

The defendant urges an insufficiency in the evidence because there was no testimony that he was exposed so as to be able to complete the act. The stated test for the determination of the existence of the intent does not include exposure as an element. Nor is sexual capacity a matter for consideration in the absence, as here, of the offer of any evidence that the defendant was impotent.

The absence of an immediate outcry on the part of the complainant does not conclusively refute the hypothesis of guilt. People v. Norrington, 55 Cal.App. 103, 108, 202 P. 932. There was sufficient corroborating evidence from the defendant himself to justify the jury's acceptance of her story. The presence of evidence from which the jury could infer the requisite intent distinguishes this case from others, such as People v. Manchego, 80 Cal. 306, 22 P. 223; People v. Fleming, 94 Cal. 308, 29 P. 647; and Commonwealth v. Merrill, 14 Gray, Mass., 415, 77 Am.Dec. 336, relied on by the defendant.

The jury was correctly instructed concerning the elements required to...