People v. Thomas
| Decision Date | 27 October 1958 |
| Docket Number | Cr. 1187 |
| Citation | 164 Cal.App.2d 571,331 P.2d 82 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Zack THOMAS, Jr., Defendant and Appellant. |
Simmons & Simmons, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Arthur L. Martin, Deputy Atty. Gen., for respondent.
The defendant was charged with the violation of section 261 of the Penal Code, i. e., attempt to commit rape; was tried by a jury and found guilty; a motion for a new trial was made and denied; judgment of imprisonment in the state prison ensued; and he takes this appeal from the judgment and 'from the denial of the motion for new trial'.
On the night of June 10, 1957, at about 11:30 o'clock, the defendant and a companion named Howard, while driving home from a restaurant, stopped at an automobile parked near the corner of Broadway and 14th Street in the city of Blythe. In the parked car was a Mrs. Ethel Fielder and her baby. In reply to an inquiry from the two men as to why she was there, Mrs. Fielder told them she was waiting for her husband; that he would be along in a little while; and that they had better leave. The defendant and Howard left; went to the home of an uncle; and then decided to return to the parked automobile. In the interim the defendant had said to his companion, 'Oh, man, we ought to go on and make it'--'we ought to go back and try to make this girl'--'there couldn't nobody know about it no way, because all the watermelon boys are here'. Howard replied that he was scared to do this, but, upon assurance from the defendant, went along.
Mrs. Fielder had been fixing a bottle for her baby, who was asleep in the back seat, and remained in the automobile at the place where the two men previously had seen her; they walked back and asked her to take them home; she refused and attempted to start her car but it stalled; the defendant pulled the car door open and told her to move over; she protested, telling him to leave, and began blowing the car horn. Thereupon the defendant jerked at her; hit her in the face; pushed her to the side; moved in; 'broke the horn in two'; and directed Howard to drive off.
As Howard drove, the defendant slapped Mrs. Fielder; started 'fiddling' with her; tried to get into the top of her dress; tried to pull up her dress; got his hand up her dress; and grabbed her when she attempted to get out of the car.
Eventually the automobile was stopped at a place about six miles from where they had started and Howard got out. Then the defendant tried to kiss Mrs. Fielder and tried to push her down in the seat. She struggled to keep him from pushing her down in the seat; grabbing hold of the steering wheel, and the defendant started 'socking' her, and continued 'socking' her until she was 'half unconscious'. At this time Howard returned; insisted that they leave, as he had to go to work the next morning; got into the car; and they left.
On the way back the defendant continued to 'sock' Mrs. Fielder; pulled up her dress; pulled on her leg; and tried to get on top of her. She was in a hysterical condition.
After reaching town the car stalled. Howard got out, and after some urging prevailed upon the defendant to accompany him to get some gasoline, believing that a lack of gasoline was the cause of the engine failure. After they left Mrs. Fielder attempted to and did get the car started; drove home; and immediately reported the incident to her landlord who called the sheriff. She had marks on her body and 'discolorations or abrasions' in the area of her neck and the side of her leg.
Mrs. Fielder did not testify in the trial court. It appearing that she could not be located, her testimony given at the preliminary hearing was read into evidence.
The defendant contends that the evidence is insufficient to convict him of the offense with which he was charged, and that the trial court abused its discretion in admitting into evidence the testimony of Mrs. Fielder which was taken at the preliminary hearing.
The crime of attempted rape 'is complete if there is a concurrence of the intent to commit such crime with a direct, although ineffectual, act towards its commission' (People v. Van Buskirk, 113 Cal.App.2d 789, 792, 249 P.2d 49, 50), providing the efforts of the accused 'reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.' People v. Miller, 2 Cal.2d 527, 530, 42 P.2d 308, 309, 98 A.L.R. 913; People v. Fratianno, 132 Cal.App.2d 610, 627, 282 P.2d 1002. To constitute such an attempt it is not necessary 'that the act done should be the last proximate one for then completion of the offense' (People v. Fiegelman, 33 Cal.App.2d 100, 105, 91 P.2d 156, 159), or that there be any penetration whatever. People v. Esposti, 82 Cal.App.2d 76, 78, 185 P.2d 866.
The defendant argues that the evidence does not prove that he attempted to have sexual intercourse with Mrs. Fielder, but only that he 'slapped' and 'fondled' her.
The evidence establishes facts which justify an inference that the defendant intended to commit rape. 'Whenever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt' (People v. Fiegelman, 33 Cal.App.2d 100, 105, 91 P.2d 156, 158; People v. Fratianno, 132 Cal.App.2d 610, 628, 282 P.2d 1002). The acts of the defendant were far in excess of 'slight'. To describe his conduct as 'slapping' and 'fondling' is most incomplete, inadequate and restrained. The record fully supports the conclusion that his advances, mistreatment, struggle to get Mrs. Fielder down in the seat, and other misconduct would have resulted in his having sexual intercourse with her had it not been for her resistance and the timely interruption by Howard.
The defendant claims that the evidence is insufficient because there was no showing that he had the ability to engage in sexual intercourse. This contention is without merit. Want of such ability is a matter of defense (People v. Wessel, 98 Cal. 352, 33 P. 216). Moreover, the evidence establishes that he believed he had the ability; this belief must have been founded on his knowledge as to the fact of his ability. In addition, although testifying he made no statement respecting any such disability. See, People v. Osaki, 209 Cal. 169, 176, 286 P. 1025; People v. Hassen...
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