People v. Nye
| Decision Date | 13 November 1951 |
| Docket Number | Cr. 5253 |
| Citation | 38 Cal.2d 34,237 P.2d 1 |
| Court | California Supreme Court |
| Parties | PEOPLE v. NYE. |
Gladys Towles Root and Herbert Grossman, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen. and William E. James, Deputy Atty. Gen., for respondent.
Defendant appeals from a judgment entered on a jury verdict finding him guilty on two counts of assault with intent to commit rape and from the order denying his motion for a new trial. The sentences for the two offenses run concurrently.
The conviction on the first count is for an assault with intent to commit rape on Miss W. on May 7th, 1950, in Burbank. Defendant entered Miss W's house-trailer early in the morning. When she awakened and asked what he wanted, defendant tore off the bed covers and ripped her nightgown down to her knees. He grasped her throat and threatened to kill her if she screamed. He exposed his genital organs, got on the bed on top of Miss W. and attempted to accomplish sexual intercourse despite her resitance. In the course of the attack Miss W's alarm clock rang, and as defendant reached to turn it off he released his grasp of her throat. He then left, after threatening Miss W. with death if she reported the attack. Defendant does not contend that the evidence was insufficient to support his conviction on this count.
The conviction on the second count was for an assault with intent to commit rape on Mrs. P., on May 27th, 1950 in a motel in Burbank. Defendant entered Mrs. P's bedroom early in the morning. She awakened as he was closing the door. When she asked what he wanted, he came to her bed, placed his hand over her mouth and grasped her wrist. She screamed and kicked, and when she bit his hand he fled from the room. He did not expose himself or get on the bed with her and made no attempt to take any property.
Miss W. and Mrs. P. identified defendant as their assailant. Two police officers testified that defendant had admitted that he attacked the two women and that his purpose in entering the motel was to have sexual intercourse with Mrs. P. Miss F., a resident of the motel, testified that on May 27th, the day of the assault on Mrs. P., defendant opened the door to Miss F.'s room about seven-thirty in the morning, looked in, and closed the door. Miss F. also testified that on May 7th, the day of the assault on Miss W., defendant entered Miss F.'s room, stood by the bed, and left when he saw that she had awakened.
Defendant denied having seen either of the prosecuting witnesses before the trial and introduced evidence of an alibi. The jury rejected his defense and found him guilty on both counts.
Defendant contends that testimony regarding his admission that he intended to have sexual intercourse with Mrs. P. was improperly admitted, on the ground that the People did not first establish that the crime had been committed, and that, even with his admission, the evidence is insufficient to support the conviction on that count.
The crime of assault with intent to commit rape was committed, if defendant intended to have sexual intercourse with his victim and to use force to overcome her resistance. People v. Lutes, 79 Cal.App.2d 233, 236, 179 P.2d 815; People v. Harshaw, 71 Cal.App.2d 146, 149, 161 P.2d 978. Defendant concedes that an assault on Mrs. P. was shown by the evidence, but contends that his conduct, standing alone, does not show the intent with which he made the assault.
When a strange man enters a woman's bedroom, covers her mouth with his hand, grasps her wrist while she screams and kicks, releases her when she bites his hand, and makes no effort to take any property, it is reasonable to infer that he intended to commit rape, particularly when such an intent is shown by his attempt to rape another woman under similar circumstances. The evidence of the attempt to rape Miss W. was clearly admissible to show that defendant's acts against Mrs. P. were committed with the intent to commit rape. 2 Wigmore, Evidence, 3rd ed. § 357; People v. Westek, 31 Cal.2d 469 480, 190 P.2d 9; People v. Coltrin, 5 Cal.2d 649, 55 P.2d 1161; see People v. Clapp, 67 Cal.App.2d 197, 153 P.2d 758; People v. Cosby, 137 Cal.App. 332, 31 P.2d 218; 1 Wharton, Evidence in Criminal Cases, § 252, 167 A.L.R. 565, 600.
Defendant contends that the admission that 'he intended to have sexual intercourse' with Mrs. P. went no farther than to show that he intended peacefully to solicit sexual relations. In the light of the evidence of the force used and the fact that defendant had never seen Mrs. P. before, the jury could reasonably reject that interpretation of his admission. With the evidence of the admission properly before the jury, any doubts as to the sufficiency of the evidence to support the conviction for assault with intent to commit rape are resolved. See, People v. Meichtry, 37 Cal.2d 385, 231 P.2d 847; People v. Bradley, 71 Cal.App.2d 114, 162 P.2d 38; People v. Finkel, 70 Cal.App.2d 508, 161 P.2d 298; People v. Cosby, 137 Cal.App. 332, 31 P.2d 218.
The present case is clearly distinguishable from the principal case relied on by defendant, People v. Fleming, 94 Cal. 308, 29 P. 647. There, the prosecutrix was a servant girl employed by the defendant. He entered her bedroom late at night and, after promises, persuasions, and arguments, left her room. The court properly stated: 94 Cal. at page 312, 29 P. at page 648. Similarly, in People v. Mullen, 45 Cal.App.2d 297, 114 P.2d 11, the defendant ardently forced unwelcome attentions on the prosecutrix, but did not threaten violence and ceased his efforts and allowed the girl to walk away after she resisted him. In neither the Fleming nor the Mullen case did the prosecution offer evidence of other similar conduct that showed defendant's intent to commit rape.
Defendant next contends that the court improperly admitted rebuttal testimony over his objections. In the prosecution's case in chief, Officer Brennan testified regarding defendant's admissions. The two prosecuting witnesses testified regarding defendant's conduct in their bedrooms. Defendant then testified in his own behalf and offered evidence of an alibi, claiming that he had never seen the two women before the preliminary examination. He admitted that he had been arrested by Officers Brennan and Loranger, but denied making any admissions.
On rebuttal, Officer Loranger testified regarding defendant's admissions and Miss F. testified that the defendant had entered her bedroom on May 7th and May 27th, the dates of the two assaults.
Defendant relies on People v. Rodriguez, 58 Cal.App.2d 415, 136 P.2d 626, where the People withheld the confession during the case in chief, and offered it for the first time in rebuttal without proof that it was voluntarily made. In the present case, the People did not withhold a material part of the case until rebuttal, but offered rebuttal testimony to support their case in chief after it had been controverted by the defendant. The evidence was properly admitted. Pen.Code § 1093; People v. Moore, 81 Cal.App.2d 799, 185 P.2d 32; People v. Gerbel, 71 Cal.App.2d 325, 162 P.2d 946; see People v. Avery, 35 Cal.2d 487, 491, 218 P.2d 527; 8 Cal.Jur. 236.
Defendant was charged in Count II of the information with the crime of attempted rape on Mrs. P. and in Count IV with the crime of assault with intent to commit rape on her. After evidence was introduced and defendant was in jeopardy, the court dismissed Count II on motion of the district attorney. Defendant was convicted on Count IV. He now contends that the dismissal of Count II was tantamount to an acquittal on Count IV, on the ground that an assault with intent to commit rape is simply an attempt to commit rape.
An indictment or information may charge 'different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts' and a verdict of acquittal on one count is not an acquittal on any other count. (Penal Code, § 954.) Thus, whether or not Counts II and IV charged different statements of the same offense or two offenses of the same class of offenses, the dismissal of Count II was not tantamount to an acquittal on Count IV. People v. Codina, 30 Cal.2d 356, 360, 181 P.2d 881.
Defendant contends finally that the trial court erred in not giving a cautionary instruction to the effect that since charges of...
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