People v. Scott

• Decision Date: 12 July 1963
• Docket Number: Cr. 4234
• Citation: 218 Cal.App.2d 249,32 Cal.Rptr. 225
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Wilson SCOTT, Defendant and Appellant.

Page 225

32 Cal.Rptr. 225

218 Cal.App.2d 249

PEOPLE of the State of California, Plaintiff and Respondent, v. Wilson SCOTT, Defendant and Appellant.

Cr. 4234.

District Court of Appeal, First District, Division 2, California.

July 12, 1963.

Cecil Hunt, San Francisco, for appellant (Under appointment of District Court of Appeal).

Stanley Mosk, Atty. Gen. of California, Albert W. Harris, Jr., Michael R. Marron, Deputies Atty. Gen., San Francisco, for respondent.

SHOEMAKER, Justice.

Defendant Wilson Scott appeals from a conviction of assault with intent to commit rape in violation of Penal Code, section 220, and from the order denying his motion for a new trial. The latter order is no longer appealable (Pen.Code, § 1237).

The evidence may be summarized as follows: In March 1961, the prosecutrix, Mary Waller, was employed as a waitress at the Bella Napoli restaurant in Oakland, California. At approximately 4:45 a. m. on March 19, 1961, she completed her shift and prepared to drive to her home in Hayward. Since it was just becoming daylight, Mrs. Waller drove with her headlights on. She proceeded south on the Nimitz Freeway until she reached the Whipple Road turnoff into Hayward. Shortly after turning onto Whipple Road, Mrs. Waller noticed another automobile move up close behind hers and begin flashing its lights from high to low beam. The other car then overtook Mrs. Waller and drew up almost parallel to her car in an apparent attempt to force her off the road. At this point, Mrs. Waller looked over to the other car and saw that the driver was a male Negro. She also noticed that the car had portholes in the fender, and that the front license plate was dented. The other car then dropped back slightly and began to make contact with the left rear side of Mrs. Waller's car. When the other car continued to bump and shove from the rear, Mrs. Waller lost control of her car, which veered across the road and rolled completely over. When her car came to rest upon its wheels, Mrs. Weller looked up and saw that the other car had stopped and that the man had gotten out and was running toward her. Mrs. Waller managed to lock the car doors before the man reached her car and began rattling the door on the passenger side. The man then said, 'I am going to kill you, bitch,' and proceeded to smash the right front window of the car with his fist. As he was reaching in through the window to open the door, Mrs. Waller got out on the driver's side and ran to the rear of her car. The man then chased her around the car, caught her, and began to hit her about the face and mouth. Mrs. Waller was able to observe that the man wore a large ornate ring. The man then threw her to the ground, threatened her with a drawn knife, and raped her. Although Mrs. Waller pretended to have fainted, she kept one eye open and saw that the man was a Negro with large freckles or pockmarks on the right side of his face, a mustache, and a nose longer and thinner than was characteristic of his race. When another car approached, the man got up, ran to his car, and drove away.

Subsequently, at approximately 5 a. m. on January 6, 1962, Mary Schissler was driving south on the Nimitz Freeway between Oakland and San Jose. Shortly after turning off the freeway onto Mowry Boulevard, she observed a car following close behind her and flashing its lights from high to low beam. The car continued to follow her as she moved into the slow lane and then back into the fast lane. Upon turning around and looking back, Mrs. Schissler was able to see that the driver of the car was a Negro. She at first throught that the driver might be a woman because she observed that the figure had something dark, which might have been hair, about the back of the neck. She was also able to see that the car had two portholes on the front fender, and a banged-up front license plate with a broken chrome holder. The car appeared to be yellow and white.

As the car attempted to pull alongside, Mrs. Schissler put her car into passing gear and managed to pull ahead. The other car remained close behind her as she swerved her car back and forth across the road. Upon approaching the Mowry-Fremont intersection, Mrs. Schissler saw a police car and began honking her horn and blinking her lights to attract attention. As the police car pulled over to the side, Mrs. Schissler's pursuer turned right on Fremont. She then told the police officer what had happened and was instructed to remain at the Mowry-Fremont intersection. The officer radioed the description to other patrol units in the area and drove down Fremont in the direction taken by Mrs. Schissler's pursuer. As Mrs. Schissler waited at the intersection, she saw her pursuer come back down Fremont, turn left on Mowry, and head back toward the freeway. She was able to observe that the car was actually green and white although it appeared to be yellow because of the fluorescent lighting on the road.

Officer McGuire, who had received a radioed description of Mrs. Schissler's pursuer, had reached Mowry at an intersection closer to the freeway than the Fremont intersection. He saw a car which appeared to be yellowish and which otherwise matched the description speed past on Mowry. He followed the car onto the freeway and succeeded in stopping it approximately a mile down the freeway. The driver was the defendant Wilson Scott.

When Mrs. Schissler was brought to the scene, she was able to identify the car and the banged-up condition of the front license plate. She also saw that the dark object which she had thought to be hair was actually a hat which the defendant was wearing on the back of his head with the brim turned down.

On January 29, 1962, Mrs. Waller was taken to the Fremont courthouse to view the defendant, whose picture she had already tentatively identified. As she drew up to the courthouse, Mrs. Waller noticed the defendant's car parked nearby and commented to the officer with her that it looked like the same green and white color as the car of her attacker. Upon being taken into the courthouse, Mrs. Waller identified the defendant as her assailant. She later identified a ring taken from the defendant as the ring she had noticed at the time of the attack. Paint samples taken from the left rear fender of Mrs. Waller's car were found to be similar to those taken from the defendant's car. It was also found that tire tracks left at the scene of the attack could have been made by the defendant's car.

The defense of defendant was an alibi. Defendant testified that he had spent the evening of March 18, 1961, visiting a round of bars in Oakland and had not returned home until after six o'clock on the morning of March 19. He denied ever having seen Mrs. Waller prior to January 29, 1962, and further denied that he had been...