People v. Peterman, Cr. 4548
| Citation | 229 P.2d 444,103 Cal.App.2d 322 |
| Decision Date | 09 April 1951 |
| Docket Number | Cr. 4548 |
| Court | California Court of Appeals |
| Parties | PEOPLE v. PETERMAN. |
Gladys Towles Root, Los Angeles, for appellant.
Fred N. Howser, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
Defendant was accused of rape and two counts of violation of section 288a of the Penal Code. Trial by jury was waived. He was convicted on the three counts. Although his notice of appeal states that he appeals from 'the judgment,' it will be assumed that he appeals from each of the three judgments. His contention is that the evidence was insufficient.
On February 10, 1950, the defendant and the prosecutrix, who is a widow 63 years of age, became acquainted at a public dance hall. On that day it was agreed that defendant would go to her home the next day. He arrived there the next day at about 5 p. m., and after he had been there a short while they went, at his suggestion, for a ride in his sedan automobile. Defendant drove to a place which was on a dirt road, about 200 yards off the main road, and was near two oil wells. The nearest house was about 1 1/2 blocks away. According to testimony of the prosecutrix, after defendant stopped the automobile at that place he pulled her pants off without her consent and told her that he was going to kill her if she did not let him have sexual intercourse with her; then he pushed her over the front seat to the back seat and, without her consent and against her will, he had sexual intercourse with her; then they returned to the front seat, and she 'wanted' him to take her home but he said, 'No'; after a short while he went to the back seat again and told her he would take her home if she would come to the back seat with him; she went to the back seat because she wanted to go home and she was afraid that he would kill her if she did not get in the back seat; then he had another act of sexual intercourse with her. Also, in her testimony, she related facts which were legally sufficient to prove that defendant then committed two separate violations of section 288a of the Penal Code, and that such acts were committed without the consent and against the will of the prosecutrix and by putting her in fear of great bodily harm. She testified further that thereafter he said he would take her home if she would let him stay all night; after she replied that she would let him stay, he took her to her home; while they were standing by his automobile, after returning home, her son and her son's wife drove up to their house which is two houses from the home of prosecutrix; the prosecutrix introduced defendant to her son (who was 33 years of age), but she did not say anything to the son regarding the occurrences at the oil field; within a few minutes thereafter, about 6:15 p. m., defendant left, stating that he would return about 9 p. m.; after he been gone about 15 minutes, he returned; and while he was gone she called the police.
A police officer testified that, while he and defendant were in front of the home of prosecutrix and were preparing to go to the police station, he asked the defendant if he had had intercourse with the prosecutrix, and the defendant replied, 'No, nothing like that happened'; that a few minutes later he asked that question again, and defendant said that there had been intercourse and it was voluntary; that as they were driving to the station the defendant said to the prosecutrix, 'Minerva [her first name], don't do this to me'; he told the officer that he loved that woman and he wanted to marry her; the officer asked him if he knew her last name, and he replied that he did not know it.
Defendant testified that the prosecutrix removed her underwear and allowed and encouraged him to have intercourse with her, and he had intercourse with her one time; he did not touch her in any way except of her own free will; he did not make any threat, and he did not use any force, against or upon her. He denied the...
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...out of fear of bodily injury is not consent (People v. Guldbrandsen (1950) 35 Cal.2d 514, 520, 218 P.2d 977; People v. Peterman (1951) 103 Cal.App.2d 322, 325, 229 P.2d 444) because the decision is not freely and voluntarily made (§ 261.6). A selection by the victim of the lesser of two evi......
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... ... See People v. Stewart, 1952, 109 Cal.App.2d 334, 240 P.2d 704, and People v. Peterman, 1951, 103 Cal.App.2d ... 322, 229 P.2d 444. It should be [170 Cal.App.2d 509] borne in mind on both counts, that Mrs. Hinderliter placed ... ...
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