People v. Brown , 138 Cal. App. 748 ( 1934 )

CASHIN, J.

Defendant was found guilty of the crime of rape, and has appealed from the judgment of conviction and an order denying his motion for a new trial.

As grounds for his appeal he contends that the evidence was insufficient to support the verdict, and that the trial court erred in refusing to permit certain questions to be asked on cross-examination.

The prosecuting witness, who resided in Oakland, testified that on the evening of April 13, 1933, she attended a dance at Neptune Beach in Alameda, where she met the defendant. At the conclusion of the dance defendant offered to take her to her home in his automobile, and she accepted the invitation. Instead of proceeding toward Oakland defendant drove in the opposite direction, stating that he wished to stop at the Oakland airport to see if his brother had arrived by plane. They left the airport, and defendant drove off the main highway and. proceeded along a dirt road into Contra Costa County, where he stopped the car. He then made improper advances, whereupon the prosecutrix left the car and ran down the road. How far she went is not clear. According to her testimony they had crossed a bridge before she left the car, and in response to a question as to how far she proceeded she answered “I don’t know. Anywhere between the car and the bridge, and the bridge was about half a mile from the position of the car.” It appears that the defendant also left the car and followed her. She testified that at no time did he strike or threaten her, but that he forced her to return to the car, where he renewed his advances. She again left, and he followed, forcing her to re-enter the car, where he accomplished an act of sexual intercourse. The point where the ear stopped was about fifty yards from a farmhouse. The prosecutrix testified she did not scream, and on account of her physical position in the ear she was unable to resist by ticking. In response to a question whether she scratched the defendant she replied “No, I did not scratch. I am not in the habit of scratching people.” She was twenty-five years of age, weighed about 140 pounds and had participated in athletics such as tennis and swimming. She testified that she feared the defendant and she did not consent to the act and that she resisted until she “lost all strength and control”. With respect to what subsequently occurred she was asked “Then after the offense was committed what did you do?” She replied, “He simply said to relax and he was tired out and he could not go on yet, and he stayed there for a few minutes, and I just hoped and prayed he would make up his mind to go home, and he finally said he did not have any gas in the car and said he would have to go after some. ’ ’ The ■ defendant then left the car, and after a few minutes the prosecutrix followed and proceeded toward Oakland. She was met by a truck driver, to whom she complained and who took her to his home. The truck driver testified that the prosecutrix was weeping and asked him to protect her, and that the place where they met was several miles from Oakland. The sheriff of the county was notified, and she was taken to his office, where she repeated her story. A physician who examined her on the same day testified that he found a lacerated condition, which indicated sexual intercourse had taken place within the preceding twenty-four hours. He noticed no bruises on her body or limbs, but an officer testified that there were such on her knees and arms.

The defendant did not deny the fact of intercourse, but testified that while the prosecutrix did not expressly consent, she did not resist. He denied the use of force or intimidation, claiming that he persuaded her to submit to his advances. He contends that the prosecutrix’s own testimony shows that she did not resist to the extent of her ability and that therefore the conviction cannot be sustained.

Under the code, proof of resistance on the part of the female until overcome by force or violence is essential (Pen. Code, sec. 261; People v. Brown, 47 Cal. 447); and it has been said that she must exert every physical means or faculty within her power to resist the outrage. (52 Cor. Jur., Rape, sec. 29, p. 1019.) It has been held, however, that the rule of “resistance to the uttermost” is not absolute ; and with respect to the degree of resistance required it is necessary not that the prosecutrix should have made the utmost resistance, but that she made such resistance as she was capable of making at the time (People v. Cline, 117 Cal. App. 181 [3 Pac. (2d) 575]; People v. Norrington, 55 Cal. App. 103 [202 Pac. 932], See, also, 52 Cor. Jur., Rape, see. 29, and cases cited); and that the question whether her resistance was genuine and bona fide was one for the jury. (People v. Norringer, supra.)

While there was sufficient evidence to go to the jury on the question of guilt, the circumstances disclose a case where a verdict for the defendant would have been fairly supported. As shown, the prosecutrix’s account of the affair taken in connection with the physical circumstances contains much that is equivocal; and where the question of guilt or innocence is close, as here, any material error in the admission or rejection of testimony might readily have turned the scales against the defendant.

The following question was asked the prosecutrix on cross-examination: “Well, Miss Miller, is it not a fact that you, immediately after preferring these charges against Mr. Brown, you asked that they be dismissed?” An objection that the question was “incompetent, irrelevant and immaterial, not within the province of this prosecutrix to dismiss any charges”, was sustained.

This was proper cross-examination (Denton v. State, 46 Tex. Crim. Rep. 193 [79 S. W. 560] ; Conger v. State, 63 Tex. Crim. Rep. 312 [140 S. W. 1112]; People v. Jones, 160 Cal. 359 [117 Pac. 176] ; People v. Webber, 26 Cal. App. 413 [147 Pac. 102]; People v. Williams, 43 Cal. App. 60 [184 Pac. 498]), as the jury may properly consider the conduct of a prosecutrix toward the defendant after the alleged commission of the crime. (People v. Jaramillo, 137 Cal. App. 232 [30 Pac. (2d) 427].) The question was preliminary; and it has been held that the general objection is insufficient to raise the special point that, being an impeaching question, the foundation of time, place and persons present was not laid. (People v. Hart, 153 Cal. 261 [94 Pac. 1042].) An affirmative answer would, unexplained, have been relevant evidence of her consciousness of defendant’s innocence. It has frequently been said that in this class of prosecutions the defendant, owing to natural instincts and laudable sentiments on the part of the jury and the usual circumstances of isolation of the parties involved in the commission of the offense, is as a rule so disproportionately at the mercy of the prosecutrix’s evidence that he should be allowed the widest latitude in cross-examination compatible with the rules of evidence.

(People v. Benson, 6 Cal. 221 [65 Am. Dec. 506] ; People v. Baldwin, 117 Cal. 244 [49 Pac. 186]; People v. Degnen, 70 Cal. App. 567 [234 Pac. 129]; People v. Biescar, 97 Cal. App. 205 [275 Pac. 851].) And where, as here, there was evidence sufficient to support defendant’s version of the affair we cannot say that an affirmative answer to the rejected question, taken with the flippant reply of the prosecutrix to the question whether she scratched the defendant, would not have convinced the jury that her story was untrue. In the circumstances the ruling was, we think, prejudicially erroneous and, as a reasonable probability, resulted in a miscarriage of justice.

The judgment and order was accordingly reversed and the cause remanded for a new trial.

Tyler, P. J., concurred.