Opinion
Cr. 4601
7-24-1951
PEOPLE v. NYE.
Gladys Towles Root, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.
PEOPLE
v.
NYE.
July 24, 1951.
Hearing Granted Aug. 23, 1951. *
Gladys Towles Root, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.
MOORE, Presiding Justice.
About 7:30 o'clock on the morning of May 7, 1950, Miss Wynie Ilene Williams, residing in a one-room trailer in Burbank, was aroused from her sleep to find appellant standing by her bed. When she inquired as to his wishes, he said nothing but pulled the cover from her and ripped her gown down to her knees. He then threatened to kill her if she screamed. She could not speak while he held his hand on her throat and he continued silent. He unbuttoned his clothing, got into bed, exposed his genital organs and tried to accomplish carnal intercourse while she resisted. She could breathe only with great difficulty because of his hold on her throat, but when the alarm clock rang at 8 o'clock he released her throat to turn off the alarm and took his departure, declaring that if she reported the incident she 'would get it again or get killed.' She had seen the miscreant the previous afternoon about 5 o'clock, right after the Burbank parade. She was then sitting in her trailer while he stood outside. Curious as to his intentions she stepped out and asked him whether she could help him, whereupon he ran away. Subsequently, she pointed him out at the police station and identified him in court as her assailant to whom she was never married and to whom she had never given permission to enter her abode. For such act appellant was indicted in two counts, to wit, count I for rape; count III for assault with intent to commit rape. For a similar performance he was indicted in counts II and IV for the crimes of attempted rape and assault with intent to commit rape upon the person of Mrs. Popplewell in the adjacent city of Glendale.
The Popplewells resided at a motel on May 27, 1950, with their two children, ages four and six, who slept in a room apart from their parents. Mr. Popplewell left home for work about 6:50 a. m. Clothed in her nightgown, his wife returned to her sleep. She was awakened to find appellant closing the door behind him. He was dressed in a blue polo shirt and blue levis. When she asked what he desired, he said nothing but came to her bed, covered her mouth and grasped her wrist. She bit his hand and began to scream, kick and scratch him. He hastily made his exit and Mrs. Popplewell closed the door. She then observed a streak of blood across her wrist.
Within four days after the last mentioned incident the Burbank police apprehended appellant who was free and voluble in answering their inquiries. From the testimony of officers Brannan and Loranger it was revealed that appellant admitted to them that he saw a woman enter a trailer on East First street; he followed her in where he found her lying in bed; he grabbed her throat, threatened to kill her if she screamed; got on her bed and performed an act of sexual intercourse after she had struggled briefly, but was too terrified to put up much fight; he then left the trailer. The officers accompanied him to the trailer camp where at their request to indicate the scene of his crime he pointed out the trailer that was formerly occupied by Miss Williams. When they asked his purpose in entering the motel he told them when he saw the prosecutrix he intended to have sexual intercourse with her. They took him to the motel. He told them he entered it on May 27, grabbed Mrs. Popplewell by the wrist, placed his hand over her mouth, forced her backwards onto her bed, but when she screamed he became frightened, released her and ran out of the motel.
At the trial appellant denied having seen either of the victims on the days they had fixed as the dates of his crimes and introduced excellent evidence of his asserted alibi. But the jury would have none of it. Counts I and II having been dismissed on motion of the District Attorney, verdicts of guilty were returned for appellant's assaults on the two women on different days with intent to commit rape.
Evidence Is Sufficient.
By virtue of his plea of an alibi, appellant denies all connection with the heinous act alleged in count III. However, in his zeal to escape the burdens of the judgment he argues now that there was no showing of an intent on his part to overcome all resistance that Mrs. Popplewell (count IV) might offer to his advances. That he entertained such intent could not with reason be doubted. He walks into the lady's boudoir at an early morning hour when she was lying on her bed in her night robe; he closes the door behind him, approaches her where she lies, grasps her wrist, covers her mouth, and holds it while she screams and kicks and until she bites his hand. What other motive could have prompted the exercise of such force on a solitary female. He made no effort to take any movable property and suggested no theme for entertainment or spiritual or mental uplift. Not only did the jury judge his motive by his acts and their knowledge of human nature but his intentions were illuminated by three other events shown by the testimony. He had attempted to ravish Miss Williams some three weeks before, had opened the door of Miss Foist's bedroom within a few minutes of his call on Mrs. Popplewell with whom, he had admitted to the police, he intended to copulate when he saw her in bed.
With such proof in the record a denial of the appeal offers no serious problem. Before a reviewing court may disturb a verdict it must clearly appear that upon no hypothesis is there sufficient, substantial evidence to support the verdict while at the same time every inference which the jury could reasonably have drawn from the established facts must be assumed in favor of the conclusion reached by the jury. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Tedesco, 1 Cal.2d 211, 219, 34 P.2d 467; People v. Tom Woo, 181 Cal. 315, 326, 184 P. 389. The determination of the veracity of witnesses and of the facts of the controversy is solely for the intelligence and conscience of the trier of fact--the jury. Therefore, this court has no power to reverse the judgment so derived unless it concludes that the facts proved cannot reasonably furnish an inference that appellant intended to rape his victim. People v. Newland, supra; People v. Meichtry, 37 Cal.2d 385, 231 P.2d 847; see 22 Cal.Jur., sec. 16, pp. 368, 370. That appellant abandoned his wicked purpose for any cause, at any time after having set his heart upon it, does not relieve him of the debt his wilful and malignant assault upon Mrs. Popplewell incurred. As to his assault upon Miss Williams, his statement to the police places the effect thereof beyond question as the final link in the proof of his guilt under count III. When a man enters the room of a sleeping woman and grasps her throat or her wrist without any explanation he is guilty of an intent to rape. Miller v. State, 50 Tex.Cr.R. 589, 100 S.W. 398; State v. Boon, 35 N.C. 244. His hasty retreat when his advances were vigorously resisted by Mrs. Popplewell does not reduce the quality or degree of his crime. His intent had already been formed and his bodily movements constituted an assault. Moreover, his intent there was evidenced by the fact that the hour of day, his manner of entry and his method of attack were all similar to the time and events that occurred at the Williams' trailer. See People v. Woods, 75 Cal.App.2d 246, 247, 170 P.2d 477. Appellant offered no refutation of his intent to commit rape. He relied wholly upon his alibi. In that state of the record he stands convicted on the evidence by virtue of the fact that he was connected with both crimes by the testimony of the women and his statement to the officers. His crime was complete if, at any moment from the instant he laid a hand upon his victim, he intended carnal intercourse.
Appellant invokes the decisions of People v. Fleming, 94 Cal. 308, 29 P. 647 and People v. Mullen, 45 Cal.App.2d 297, 114 P.2d 11. Both cases have been distinguished. See People v. Moore, 155 Cal. 237, 240, 100 P. 688, and People v. Cassandras, 83 Cal.App.2d 272, 277, 188 P.2d 546; People v. Schmidt, 66 Cal.App.2d 253, 257, 152 P.2d 1021; People v. Bumbaugh, 48 Cal.App.2d 791, 796, 120 P.2d 703. The logic of the last four cited decisions applies with equal force here to the Fleming and Mullen opinions. The former used no force or threats at all to effect his aim; he used only promises and arguments; the prosecutrix had no fear of personal violence. While the conduct of Mr. Mullen disclosed the violent ardor of an eager libertine, his conduct fell short of an assault with intent to rape. In a studio where the only furniture was a piano he embraced and tried to kiss the young lady, but finally released her and she departed. We there said, 'The persuasions, caresses and embraces of the seducer are not evidences of a felonious intent.' [45 Cal.App.2d 297, 114 P.2d 12.]
No Error in Rulings on Rebuttal Evidence
There was no error in permitting Miss Foist to testify she had seen appellant on May 7th and 27th. By the evidence of his alibi he had shown to his own satisfaction that he was not at the trailer on the 7th or at the motel on the 27th. Such proof required rebuttal by such witnesses as were available. Miss Foist was living in the motel of Mrs. Popplewell's residence on both days. On May 7th he entered her bedroom 'shortly after 8:00 o'clock' and stood over her bed. Again on May 27th about 7:30 a. m. while she was still in bed he entered her room. The only objection to the evidence was that 'it was the duty of the proponent to establish defendant's presence' by his testimony in chief. The state was properly allowed to rebut evidence of the alibi by testimony that appellant was not at home at the hours on the days he had specified. The same is true with reference to the testimony of officer Loranger to which objection was made on the same ground. Appellant had denied the testimony of officer Brennan. While section 1093 of the Penal Code requires the district attorney to 'open the cause and offer the evidence in support of the charge' the court may in the exercise of a sound discretion depart from the program there outlined. Penal Code, sec. 1094. While a uniform procedure of trials is commendable, a variance therefrom may be preferable in some cases so long as no prejudice will result therefrom. People v. Rodriguez, 58 Cal.App.2d 415, 136 P.2d 626, is not pertinent. The State's counsel assumed that the defendant had made a confession to the officer but held the latter as a rebuttal witness who was called to the stand after the accused under cross-examination had denied confessing to the deputy sheriff but had been beaten. In making proof of the confession the prosecutor neglected to show that it had been made voluntarily. Due process of law had been denied the prisoner.
Dismissal of Count II.
Appellant contends that after the proof was in and he was in jeopardy the court granted the motion of the district attorney to dismiss count II, attempted rape, and that such order was tantamount to an acquittal under count IV. But the two crimes alleged are different. In attempted rape, proof of an overt act towards the commission of rape must be made. Not only an intent to rape must be shown, but also an act toward its consummation must be proved. People v. Parker, 74 Cal.App. 540, 546, 241 P. 401. In the crime of assault with intent to rape (count IV) the intent may be proved by the circumstances; while in attempted rape the overt act makes proof of the intent but rape is thwarted by some force outside the accused. People v. Moore, 155 Cal. 237, 100 P. 688; People v. Jones, 112 Cal.App. 68, 296 P. 317.
As between counts I and III involving Miss Williams there is no reason why the prosecution should not have been allowed to choose upon which it should proceed. It is common practice in both criminal and civil actions for the pleader to declare his action in every form which his proof might reasonably establish with the understanding that he may elect upon which he will stand for judgment. In submitting count IV as the appropriate pleading on the incident in the home of Mrs. Popplewell the state's counsel appears from the facts recited herein to have chosen wisely. The entire proof and the admissions of appellant bear out the charge that while he exercised some force upon the prosecutrix with a fixed intent his acts were far short of an attempt to consummate a rape by force. (See Burdick's 'The Law of Crime' sec. 491.)
Cal.App.utionary Instruction.
Despite the fact that appellant did not bring the instructions here for review he demands a reversal on the ground that a cautionary instruction was not given as suggested in People v. Putnam, 20 Cal.2d 885, 129 P.2d 367 and People v. Rankins, 66 Cal.App.2d 956, 153 P.2d 399. Such doctrine does not apply where a woman of mature years has been assaulted by an unbridled Don Juan. It is pertinent and necessary only where the victim is a child of tender years whose mind may be misdirected by suggestion of persons concerned with the prosecution and where she has no substantial corroboration. Such instruction is unnecessary where the prosecutrix is a woman of mature judgment and the jury is told to consider of their verdict calmly and dispassionately. Neither was it necessary here where the unfortunate women were not acrimonious or overzealous to effect a conviction. People v. Ahsbahs, 77 Cal.App.2d 244, 175 P.2d 33; People v. Arechiga, 72 Cal.App.2d 238, 164 P.2d 503; People v. Williams, 55 Cal.App.2d 696, 131 P.2d 851; People v. Putnam, 20 Cal.2d 885, 129 P.2d 367.
The judgment and the order denying the motion for a new trial are affirmed.
McCOMB and WILSON, JJ., concur. --------------- * Subsequent opinion 237 P.2d 1.