People v. Ross

• Decision Date: 12 April 1960
• Docket Number: Cr. 6806
• Citation: 4 Cal.Rptr. 73,179 Cal.App.2d 684
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Q. ROSS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 73

4 Cal.Rptr. 73

179 Cal.App.2d 684

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Q. ROSS, Defendant and Appellant.

Cr. 6806.

District Court of Appeal, Second District, Division 1, California.

April 12, 1960.

Gladys Towles Root, Eugene V. McPherson and Robert Barnett, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from the judgment and from the order granting probation in a case involving forcible rape.

In Count I of an information filed in Los Angeles County on August 14, 1958, the appellant was charged with a violation of Section 261, subdivision 3, Penal Code in that he did on July 26, 1958, commit a forcible rape upon a named female, not his wife; in Count II he was charged with a violation of Section 261, subdivision 1, Penal Code (statutory rape).

On September 3, 1958, the defendant with counsel pleaded 'Not Guilty.' On October 14, 1958, the case was called for and started to trial, witnesses testified. However, the jury could not agree after some four and one-half hours of deliberation and the Court declared a mistrial and discharged the jury. The next rrial was set for November 17, 1958, and actually started on January 26, 1959. A mistrial was ordered by the Judge because the jury could not agree upon a verdict. Pursuant to what amounted to a stipulation the third trial was started on April 6, 1959. A jury found the defendant guilty of forcible rape and not guilty of statutory rape. On May 7, 1959, the proceedings were suspended and the defendant was placed on probation, part of the terms of probation being that he spend one year in the County Jail.

A resume of the facts is as follows:

The victim was 17 years of age and had never been married. In July of 1958 she worked for the defendant as a baby sitter. On July 26, 1958, she returned to the home of the defendant about 1:30 a. m. Later, that same early morning the defendant arrived home, assaulted her and forcibly had sexual intercourse with her. The defendant had come to the victim's bedroom and was told by her to get out, the victim was screaming and fought off the defendant as he wrestled with her. The defendant threatened to kill her and did choke her. He got on top of her and attempted to take off her undergarments and finally did remove the garments and did have sexual intercourse with her.

At the trial, the victim was relating all of the details as to what had occurred to her and a question as follows was asked, 'Have you ever had intercourse with anybody in your life, before that episode?,' and the victim answered, 'No.'

After the forcible act of sexual intercourse, the victim was crying and bleeding and she fled to the home of Mr. and Mrs. Bateman who resided about two blocks from the residence of the defendant in Burbank. Mr. Bateman was supervising engineer for the Post Office Department in Burbank and saw the victim at 2:20 a. m. July 26, 1958. The victim was 'hysterical and crying' and was difficult to understand. Mr. Bateman and his wife got up and took the victim in their car to the home of the victim in Burbank, some two or three miles away. During the trip to her house in the automobile the victim cried and made complaint about what had happened to her. The step-father of the victim made a crime report to the Burbank Police Department.

Albert Madrid, a Burbank Police Department Officer and his officer partner stopped the defendant as a possible drunk driver at 1:46 a. m. on July 26, 1958 at an intersection, 11 blocks from the defendant's home. The defendant at that time was alone. The officers could smell liquor on his breath but they determined that, in their opinion, he was not drunk at the time and thereupon told the defendant 'to go to his home before he became involved in something.'

Officer Madrid saw the victim at the police station at about 2:45 a. m. and talked briefly with her and she made complaint at that time about what had occurred to her. She was then taken to St. Joseph's Hospital in a police car. Officer Madrid and his partner went to the residence of defendant about 3:15 a. m. and examined the premises. The officers found the bed in the rear bedroom was 'pushed away from the wall and most of the bed clothing was on the floor.' On the mattress and the sheets there were reddish-brown spots. Officer Madrid talked to the defendant later at the jail where the defendant stated in effect that upon being stopped by the officers in the first instance he had driven the pickup truck he was then driving to the front of and across the street from his house and had gotten out of the pickup truck to make it appear to the police that he was not driving any farther and he was going into his house. He stated further that he had not gone into the house and then described the route which he had thereafter taken. In a later statement the defendant related that he saw a man in the yard on his premises when he drove by but he could give no description of any such person.

A doctor made a vaginal examination upon the victim about 3:00 a. m. on July 26, 1958. His findings included a recently torn hymen with fresh bleeding and that she was a virgin prior to the night of July 26, 1958. Swabs were taken of the victim and spermatozoa and red blood cells were found thereon.

Appellant contends that (1) the introduction of evidence as to the previous chaste character of the victim was prejudicial to the defendant; (2) that it was error to permit the officer to testify as to the identity of defendant as the perpetrator of the crime, and (3) that there were inflammatory remarks made by the prosecutor to the jury which constituted prejudicial misconduct.

The defense of the defendant was that of an alibi and a complete denial of any act whatsoever upon or to the victim.

Appellant made no objection to any evidence about the chastity of the victim, he made no motion to strike such testimony, he made no request for any instruction on the matter nor did he make a motion for a mistrial. Nor could counsel contend that he was surprised by any such testimony for the case had been tried twice before. Furthermore, counsel for the appellant asked the victim, '* * * you ever had an act of intercourse before?' and the victim answered, 'No.'

In People v. Pollock, 25 Cal.App.2d 440, 443-444, 77 P.2d 885, 887 it is said:

'* * * exception is taken to the testimony of the physician who examined the victim immediately following the commission of the alleged offense, and who testified that the hymen showed a fresh rupture which was still bleeding. From such testimony, appellant argues that evidence indirectly tending to prove previous chaste character was received in violation of the rule that previous chastity of the prosecutrix is presumed, and that evidence thereof is inadmissible in advance of an attack thereon. The argument is without merit. The evidence above referred to was clearly relevant and it is well settled that when evidence is admissible for one purpose it cannot be excluded because it does not satisfy the rules applicable to it in some other respect. Under such circumstances, a failure to request an instruction limiting the effect of such evidence forecloses relief on appeal. 10 Cal.Jur., p. 816.'

Appellant relies upon the case of People v. O'Brien, 130 Cal. 1, 62 P. 297 and has set forth a part of one of the headnotes as being what the court stated in that case. In fact the court said at page 6 of 130 Cal., at page 299 of 62 P.:

'On the examination of the prosecutrix in chief she was permitted to testify, over the objection of defendant, that prior to the occasion of the alleged offense by defendant she had never had sexual intercourse with anyone. This was error. No doubt, as held in the cases cited by the attorney general, the previous chastity or unchastity of the female alleged to be raped may be a material element for the jury to consider; but, as the court in this case instructed the jury, the previous chastity of the prosecutrix is presumed, and it is inadmissible, in advance of attack, to prove her good character, and still less to prove her innocence or specific acts of incontinence. People v. Tyler, 36 Cal. 526; People v. Rector, 19 Wend. 579; People v. Gray, 7 N.Y. 378; Dodd v. Norris, 3 Camp. 519; Rex v. Clark, 2 Starkie 241, (a case of rape.) In general, such evidence, as it simply affirms what is to be inferred, may not be prejudicial. But in this case evidence was subsequently introduced by defendant tending to prove that prosecutrix had been unchaste, and even tending to prove specific acts of unchastity, which she was not called to rebut.' (Emphasis added.) In the case before us, the defendant was, as heretofore stated, charged with forcible rape and statutory rape and whether such testimony would be proper in a statutory rape case is not particularly important here because the appellant was acquitted of that charge.

Also, the evidence of the victim's prior chastity might well have been relevant as a foundation for the medical evidence which tended to show the same fact. Appellant apparently makes no contention about the medical evidence and does not assign it as a ground for reversal. We have, therefore, assumed that any contention as to that particular evidence is abandoned. See, People v. Turville, 51 Cal.2d 620, 635, 335...