People v. Newlan, Cr. 2946
| Decision Date | 08 September 1959 |
| Docket Number | Cr. 2946 |
| Citation | 343 P.2d 618,173 Cal.App.2d 579 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Harry Z. NEWLAN, Defendant and Appellant. |
J. W. Grossman, Colfax, and Robert A. Zarick, Sacramento, for appellant.
The Atty. Gen., Doris H. Maier, Deputy Atty. Gen., for respondent.
Defendant was charged with a violation of Penal Code, section 261, subdivision 1 (statutory rape) and section 261, subdivision 3 (forcible rape), both counts relating to the same act. He now appeals from a judgment of conviction following a jury verdict finding him guilty of forcible rape, and from the orders denying his motion for a new trial, his application for probation and his application for a stay of execution pending appeal.
The evidence as to force on the part of the defendant and as to resistance on the part of the prosecutrix is weak. The record discloses that the prosecutrix, the 15-year-old stepdaughter of the defendant, was awakened on or about 2:30 in the morning by the defendant who was then in bed with her; that although she knew a younger sister and brother were in the house at that time, but was not sure if her mother was then there, she made no outcry; that she tried to get away from the defendant and out of the room, but there was little she could to because of his actions in physically holding her on the bed; and that she was crying throughout the commission of the act. The act occurred on or about August 1, 1957, but she told no one until some time in September when she told a friend, Mrs. Erma Fenton.
It is a well-established rule that there must be some showing of resistance on the part of the prosecutrix (People v. Bales, 74 Cal.App.2d 732, 736, 169 P.2d 262); however, the old rule calling for the victim to resist to her utmost has been considerably relaxed, that is: 'The extent to which she must resist his [the rapist's] advances is for the victim only to determine. She is required to go no further than is necessary to make manifest her unwillingness to yield to the attack. [Citations.] The crime is accomplished if at any moment during the struggle the accused intends to use such force as may be necessary to gratify his lustful concupiscence against the will of his victim. [Citation.] The importance of the woman's resistance to the rapist inheres in (1) his intent to use force and (2) her nonconsent; but the crime does not hinge upon the woman's 'utmost exertion." People v. Stewart, 109 Cal.App.2d 334, 343, 240 P.2d 704, 709.
The 'sufficiency of the woman's resistance, whether the resistance was genuine, sincere, and bona fide, as well as the extent of the resistance or nonconsent, are solely for the trier of fact.' 42 Cal.Jur.2d, Rape, sec. 14, pp. 205-206. The authority just cited further states that the factors to be considered in determining the degree of resistance required are the relative strength of the parties, age and condition of the woman, the uselessness of resistance as it would appear to her, and similar factors. Pages 204-205. It would therefore appear that the testimony of the prosecutrix that she did not in fact consent, that she tried to get away from the defendant but could not, and that she was crying, reasonably supports the inference that she did not consent and that such nonconsent was made manifest to the defendant, as was her actual resistance. Additionally, her testimony that he so held her as to prevent her escape and accomplished his purpose over her resistance reasonably supports the inference that he intended to and did use force.
It is defendant's next contention that the testimony of the prosecutrix was inherently improbable. It is argued that the defendant could not have physically accomplished the act while holding the prosecutrix as he did. In order to hold that evidence is inherently improbable and unworthy of belief, it must appear that the facts testified to are such as would amount to a physical impossibility or the unbelievable per se. The prosecutrix testified at length and demonstrated to the jury the position in which she was lying at the time the act was accomplished. We cannot say that such testimony was so improbable as to be false per se and impossible.
Defendant further contends that the trial court abused its discretion in denying his motion for a new trial on the ground of newly-discovered evidence. In support of his motion defend...
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...(1874) 47 Cal. 447.) The importance of resistance lay in its relationship to the issues of force and consent. (People v. Newlan (1959) 173 Cal.App.2d 579, 581, 343 P.2d 618.) The accused's conduct became criminal only if the complainant failed to consent, exhibited resistance, and was overc......
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