People v. Penrice

• Decision Date: 01 September 1961
• Docket Number: Cr. 3135
• Citation: 15 Cal.Rptr. 733,195 Cal. App. 2d 360
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Earl T. PENRICE, Defendant and Appellant.

Page 733

15 Cal.Rptr. 733

195 Cal.App.2d 360

PEOPLE of the State of California, Plaintiff and Respondent, v.Earl T. PENRICE, Defendant and Appellant.

Cr. 3135.

District Court of Appeal, Third District, California.

Sept. 1, 1961.

Warren G. Reid, Oakland, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., C. Michael Gianola, Dep. Atty. Gen., for respondent.

PEEK, Justice.

Defendant appeals from the judgment of conviction entered pursuant to the verdict of the jury finding him guilty of a violation of section 207 of the Penal Code(kidnaping) and from the order of the trial court denying his motion for a new trial.

The record shows that defendant and the victim of the kidnaping, Thelma Burns, had been living together as husband and wife.During the course of this association hostility developed between them, culminating in Thelma's leaving the defendant and moving to the residence of a sister, Mrs. Frances Alexander, in Sacramento.

On the evening of the kidnaping, defendant went to the Alexander residence.When told by Thelma that she did not want to see him, he forced his way into the home striking her and her sister with such force that he knocked Mrs. Alexander to the floor.He then drew a loaded revolver and threatened to kill everyone in the home unless Thelma accompanied him.At gun point, he then forced Thelma into his car and drove to the home of a Mrs. Jones (apparently a second 'common-law' wife of the defendant), and informed her that he was driving to Berkeley.

A short distance from the Jones home, Thelma grabbed defendant's gun and jumped from the car.Defendant stopped the car and pursued her.Thelma attempted to shoot him, but the gun misfired and in the struggle for its possession, he struck her about the head and shoulders with a flash light he was carrying.Seizing the gun from her, he again forced her into the car.As he entered the car on the driver's side, thelma again attempted to flee, but again he grabbed her; this time she was unable to get out of the automobile.During this struggle, the sweater she was wearing was completely torn from her body, leaving her nude above the waist.They then proceeded to drive to Berkeley to the home of defendant's sister, a Mrs. Thompson.En route they stopped for gasoline, but Thelma made no further attempt to escape.Upon arriving at the Thompson home, Thelma showered and obtained other clothing in place of her own, which was torn and muddy.

According to her testimony, she had no recollection of what occurred until the following morning at approximately 9:30 a. m. when she arrived back at the Thompson home.That afternoon when the defendant learned that a warrant had been issued for his arrest, he and his sister persuaded Thelma to telephone the Sacramento police, urging them to drop the charges against the defendant.The call was placed from a public telephone booth at a service station next door to the Thompson home.The officer who received the call was able to engage Thelma in a sufficiently long conversation to enable the police to trace the call and apprehend the defendant before it was concluded.When arrested, defendant had eighteen rounds of 45 caliber automatic shells in his pocket.The gun was later found at the Thompson home.

The defendant testified in his own behalf and denied forcing Thelma to go with him, and vigorously maintained that she had consented voluntarily.In support of this contention, he testified that she spent the night with him in a Berkeley hotel, where they engaged in sexual intercourse.He further stated that at the time of the incident she was eight-months pregnant with a child fathered by him.

Defendant first contends that the testimony of Thelma was inherently improbable: (1) because she failed to seek aid when she had the opportunity to do so; (2) because there were inconsistencies between her testimony at the trial and a statement she made to police officers shortly after defendant's arrest; and (3) because she was unable to recall any events from the time she left the Thompson home in Berkeley on the evening of January 10, until she returned the following morning.

'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category.[Citing case.]To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.[Citing cases.]Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the...