People v. Sullivan

• Decision Date: 30 March 1950
• Docket Number: Cr. 2622
• Citation: 96 Cal.App.2d 742,216 P.2d 558
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. SULLIVAN.

Page 558

216 P.2d 558

96 Cal.App.2d 742

PEOPLE v. SULLIVAN.

Cr. 2622.

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

March 30, 1950.

Hearing Denied April 27, 1950.

Alfred J. Hennessy, San Francisco, for appellant.

Fred N. Howser, Attorney General, Clarence A. Linn, Deputy Attorney General, for respondent.

GOODELL, Justice.

Appellant was convicted of a violation of § 261, subd. 3, of the Penal Code and sentenced to the penitentiary. He appeals from the judgment and from the order denying a new trial.

Appellant in his brief sets out the five contentions,--(1) that evidence of another alleged offense was improperly admitted; (2) insufficiency of the evidence to support the judgment; (3) errors of law arising during the trial; (4) error in the instructions, and (5) that the acts complained of did not constitute rape. None of the five points, excepting the first, is developed in appellant's brief, hence our discussion will be confined to that one point.

On the evening of Saturday, January 29, 1949, the complaining witness, B. R., a woman of 25, and a woman friend of hers, attended a public dence in Oakland. Defendant asked B. R. to dance with him and thus they met. They danced several times together and between some of the dances they went to the bar and had highballs. About 12:30 defendant offered to drive both girls to their homes in San Francisco and they got into his car, a Plymouth sedan with one door on each side. After taking the other girl home defendant asked B. R. to go to his apartment but she refused, saying that she must go home as her mother was ill. Defendant drove around for a while and then drove southerly through the Mission District assuring that the route would lead into her neighborhood, but instead of taking her home he drove out of the city and past Tanforan racetrack. When she insisted on going home he turned around and drove westerly toward Skyline Boulevard and told her that either she would go to his apartment or he would turn into Sharp's Park. She still refused, and he drove toward Sharp's Park and stopped his car beside the road. When he did so and indicated his intentions she reminded him that he had given her his card and cautioned him to desist. Thereupon, she testified, 'he grabbed me by my hair and put his hand around my throat and I began screaming, I was scared, and then he began hitting me.' He hit her with his fists on her head and face; she had bumps on her head and her face was scratched and cut, her nose was bleeding, and her mouth cut. He kept on beating her and finally she opened the door and slid out of the car onto the ground. Defendant was right behind and above her and still striking her on the face and head. She testified that she fought to the best of her ability, and to the point of exhaustion; that she 'was sick, I could hardly fight, all I could do was pray * * *.' Defendant, according to her testimony, forced her into the back seat of the car, forcibly took off two articles of her underwear and committed the offense charged. He drove back to San Francisco still insisting that she go to his apartment, and refusing to return her girdle until they got there. She pleaded with defendant to take her home but he drove up in front of his home and tried to drag her in. She grabbed hold of a post and finally he desisted and promised to take her home, but after driving around he again insisted that they were going to his apartment As he slowed down at the intersection of Market and Castro Streets, around 3:30 a. m., B. R. jumped from the car, and ran into a gas station where she sought the protection of the two attendants.

Both attendants testified that she was hysterical, and kept repeating 'Dont let him hit me' and 'Dont let him get me' and that she had blood on her face, the flesh was laid open under the side of her nose, her lips were swollen and there was a lump on the left side of her head. One of the attendants who washed the blood from her face testified that the flesh of her nose was torn, her lips puffed and her face lacerated; that the blood had dried and it took a little time to remove it around her mouth on her chin and cheek (Defendant testified B. R. received the face and head injuries when she jumped from the car at the gas station). On cross-examination the same attendant denied that the blood was only 'a little splotch' and said it was smeared on her face in several places under her nose, on her cheek and chin. He estimated that the cut under her nose was about a half inch long and a quarter inch wide. Both men saw a girdle protruding from the right pocket of defendant's coat as he stood at the gas station.

A police inspector who saw B. R. on the morning in question, a few hours after the offense, testified that her lips were bruised and her cheek bone bruised and swollen. Two photographs in evidence, taken that morning, show the marks on B. R.'s face and a mark on her right hand.

The appellant's principal contention, and really his only point on appeal, arises from the admission in evidence, over objection, of the testimony of the witness R. W. respecting a similar attack upon herself about two months after the first offense and while appellant was out on bail on the first charge.

This witness, a girl of 18, testified that she met appellant for the first time at a public dance hall in San Francisco. A day or two later, on March 28, 1949 he called for her at her home about 8 o'clock p. m. and drove down Mission street to a cafe, and from there to another cafe on the Bayshore Highway in San Mateo County where they danced a few times and he had some alcoholic drinks. She had nothing but soft drinks. They left there a little after 10 p. m. and drove up to McLaren Park which is in San Francisco. Defendant had some bottles of whiskey with him out of which, she said, defendant tried to have her drink from the time they left her home until they returned there. At McLaren Park he stopped the car and told R. W. that she was going to be raped. She resisted and he forcibly removed an article of her underwear. She testified that every time she started to scream defendant hit her on the jaw with his fist. He told her to get over the back seat, and when she refused 'he got over and drug me over and in the meantime practically choked me to death.' 'I was lying there, being pinned down. He pulled my hair; he hit me in the chin and jaw with his fist, about the head and face.' She then testified respecting the act of intercourse. After that he drove her home, and on the way asked her for a date the next night but she told him she had an engagement. On the night after that he called on her at 8 o'clock. By prearrangement two officers were there and took defendant into custody, the witness having reported the rape the morning after its occurrence.

Before the testimony of R. W. had progressed to the point of describing the alleged offense the court interrupted, saying: 'I think I will give an instruction * * * for the purpose of showing why this is admitted', and there was then read to the jury the following:

'Evidence was offered in this case for the purpose of showing that the defendant committed another crime other than the one of which he is accused and for which he is on trial in this action, namely, that he committed an act of rape with force and violence upon [R. W.].

'Such evidence was received for a limited purpose only: not to prove distinct offenses or continued criminality, but for such bearing, if any, as it might have on the question whether the defendant is innocent or guilty of the crime charged against him in this action, to wit: rape with force and violence upon the person of [B. R.].

'You are not permitted to consider that evidence for any other purpose, and as to that purpose you must weigh such evidence as you do all others in the case.

'The value, if any, of such evidence depends on whether or not it tends to...