PEOPLE v. MEICHTRY (1950)

In an information filed by the District Attorney of Los Angeles County, defendant was accused of the crime of assault with intent to commit rape, allegedly committed on or about November 19, 1949, upon one Bertha Kieber.

Defendant pleaded not guilty and the cause proceeded to trial before a jury, resulting in a verdict finding the defendant guilty. From the judgment of conviction he prosecutes this appeal.

Viewing the evidence in a light most favorable to the prosecution as we are required to do following a guilty verdict, People v. Carothers, 77 Cal.App.2d 252, 253, 175 P.2d 30, the record reveals testimony that the victim, aged 29 years, was a housewife and the mother of a two-year old boy. Defendant, 51 years of age, was a married man and the father of a small daughter. He was also the victim's uncle and godfather. She had known him for as long as she could remember. He had lived in the home of the complainant's father, defendant's brother, approximately ten years before he left to establish his own home.

At the time of the incident here in question, which occurred on November 19, 1949, appellant was living in Van Nuys a few miles from where the victim lived. He arrived at her home about 10:30 in the morning on that date. The victim had no advance knowledge that he was coming. Her husband had gone to work and she was alone in the house. Her brother-in-law (who apparently had a sleeping room on the premises constructed from a chicken house about 60 feet in back of the house) was in the back yard but left shortly thereafter. The house itself consisted of a kitchen, living room, bedroom and bathroom. The Kiebers had been working on it, completing it, expanding it and ‘fixing it up’ to make it more comfortable. Appellant had helped ‘some’ in getting the house built. The kitchen of the house opened into the living room. Between the living room and bedroom there was a doorway, but no door was there.

Just before appellant had come, Mrs. Kieber had been having some coffee. She asked him ‘in’ and asked him if he wanted some coffee. He answered no, that he had just had some beer. Mrs. Kieber could smell the liquor on him, but as far as his walk and talk were concerned, he was ‘all right’. They talked about their respective children and their homes. Appellant asked if any more work had been done on the Kiebers' house. She said no and showed him what they hoped to do. She showed him in the bedroom where they were going to put a siding upon one of the walls and were going to ‘fix’ their closet. They walked out of the bedroom into the living room and were standing near the bedroom door when appellant put his arms around Mrs. Kieber. He had done that before when she was a child of about 15. He put his arms around her tight and hurt her breasts. The complaining witness testified that she told him, ‘* * * stop, let go, now don't be stupid.’ He ‘smeared his mouth around or his tongue around my face’ and she told him to stop. He said he never ‘got anything’ from his wife and she said it was not her fault, ‘* * * get out now’, ‘* * * I have got my own husband and you have got your wife, * * * get out.’ He would not let go and with his arms around her picked her up from the floor and carried her to the bed, a distance of about six feet. He dropped her on the bed and got on top of her, putting his whole weight on her, holding her with one arm around her. He put his hands on her breasts and squeezed them and rubbed his face and mouth or tongue on her. She told him to stop, to get out. That she could not do anything with her hands because appellant was on top of her. That she was fighting, pulling her legs up and down. That he got his fingers inside of her vagina twice. The struggling lasted what seemed to her about half an hour. Appellant did not remove any of her clothing. She was wearing a housedress, usual underwear, shoes and stockings.

In answer to a question as to how she managed to ‘get loose’ the prosecutrix testified, ‘Well, I couldn't do anything, he just had me knocked out, and then finally I just took the chance to see if he wouldn't get off me, I said, ‘Here comes someone,’ and he finally jumped off me.' Actually no one was coming. That appellant jumped off and made a motion as if he were pulling up his trousers. The victim jumped off the bed and ‘* * * ran for the kitchen as fast as I could.’ She did not notice whether appellant's trousers were unzippered because she ‘* * * just wanted to get away from him.’ Out in the kitchen she told appellant, ‘* * * get out now, leave me alone, go on home’, but he would not leave. Complainant testified further that she was so nervous and upset that she could not recall at the trial what appellant said; that ‘he just kept talking.’ He came up close and she pushed him away and slapped him on the back, saying, ‘Go on, get out!’ At about 12 o'clock he finally left. In parting she told him to bring her a Christmas present. That she did not know why she said this; that she was ‘just nervous and upset’ and did not know what she was saying.

This occurred in the kitchen. She went outside the door, got her little boy, brought him in and locked the door. During the entire time that appellant had been there the little boy had been in the back yard alone. The place was ‘penned in’ and he could not get out. It was her practice to let him play out there in the back yard when the weather was good.

After her husband got home, the latter and she went to the Police Station in Van Nuys and reported the incident. The next day she went to the doctor for a check-up and after that found she had black and blue spots coming out on the inner side of her right arm, which she showed to her husband and her mother and father several days thereafter. During the incident in question appellant had had ahold of her arms ‘with his big hands' and squeezed them.

The victim's husband testified that she also made complaints of internal injuries, ‘* * * might say her body ached all over,’ and that on the day following the incident, Sunday, she was ‘no good’ and lay on the couch all day long.

James E. Economides, a police officer of the city of Los Angeles, attached to the Valley Detective Division, testified to the following interview had with defendant on the day following the occasion here in question:

‘Q. Tell us the conversation, please. A. I asked the defendant if he was related to Mrs. Kieber and he said yes, he was her uncle. I asked him if he had seen her on the morning of the 19th and he stated yes, that he had, he had gone over to her house and her husband was not at home that day and he stated that Mrs. Kieber had asked him in for a cup of coffee.

‘I asked him if he had drank the coffee and he stated no he did not. I said, ‘By the way, Mr. Meichtry, what did you have to drink during the day,’ and he stated that he had had approximately a pint and a half of beer. I asked him what then happened in the house and he said that, well, he then said that, well, I thought Bertha was ready.

‘I said, ‘What do you mean by that?’ He said, ‘Well I thought I could make out with her.’ I said, ‘Then what next happened?’ He said, ‘I put my arm around her in the living room.’ He said, ‘I then walked her into the bedroom.’

‘I said, ‘Were your arms still around her, Mr. Meichtry?’

‘And he said, yes, they were.

‘I said, ‘Then next what happened?’

‘He said he laid her on the bed.

‘I said, ‘Do you mean shoved her on the bed?’

‘He said, ‘No, I just kind of pushed her over on the bed.’

‘I said, ‘What was your—what position was your body in relation to her body?’

‘He said he was on top of her.

‘I said, ‘What then happened, Mr. Meichtry?’

‘And he said that he had kissed her and fondled her breasts and private parts.

‘I said, ‘Did you insert your finger into her private parts?’

‘And he said no, he did not.

‘I said, ‘Did she struggle, Mr. Meichtry?’

‘He said, ‘Well, she was moving around quite a bit but I wouldn't hardly call that struggling.’

‘I said, ‘Well, what broke this thing up?’

‘And he said she said someone was coming at the time, you had better get out.’

On the same day the above named officer took the victim to the receiving hospital at Van Nuys City Hall for a physical examination. At that time he noticed ‘that her walk was very slow and halting. She continually complained of pains and aches.’

Sworn as a witness in his own behalf, defendant testified that the complaining witness and himself talked about her house and she showed him what things were to be done yet to the house, first in the bedroom and then in the bathroom and that they then gradually came back out to the doorway between the bedroom and living room. That he said, ‘Well, Bertha, I have to go now, goodbye!’ That she said, ‘Kiss me’, and appellant put his arms around her and kissed her.

That ‘* * * She gradually walked me back over to the bed and we fell on the bed. She put her legs way up around me here, squeezed me there two or three times, and I put my hands on her breasts; and then I reached down there and came up between her legs, just came up—very disgusting—and I said, ‘Bertha, my golly, you never be like this before.’

‘And she said, ‘No, get off, I think I hear somebody coming.’

‘So we went out.

‘All this happened, and giggling, just laughing and giggling all the time.’

That he did not put his fingers into her private parts and did not intend at any time to have an act of sexual intercourse with her. That he did not kiss her while they were on the bed, but they had kissed when they were standing up, ‘We had our arms around each other and she pushed her part here, front part up on me and leaned a way forward and wiggled there quite a bit.’

That after they got off the bed, they came slowly out to the kitchen where he remained for about twenty-five minutes. That there they had conversation about their respective children, about an accident case, and about a Christmas present. That about the Christmas present the conversation was:

‘A. Well, she says, ‘You have to give me something for Christmas.’

‘I says, ‘Why should I, you never give me anything. Look at all the Christmas presents I gave you.’

‘She says, ‘Well, I never have any money to give you anything, I never worked.’

‘I said, ‘Well, why should I give you Christmas presents now?’

‘* * * So we talked some other things and she says, ‘Well, you better give me something or I will tell Harriet.’

‘I says, ‘Oh, is that the kind of girl you are after all these years I gave you things and bought you things and all the places I took you all the years nobody else took you anywheres, always felt sorry for you and took you out riding, that is the way you want to turn out, huh?’'

As his first ground for reversal, appellant earnestly urges that the evidence is insufficient to support the verdict, that the latter is contrary to both the law and the evidence in that the evidence ‘is entirely lacking as to any act or conduct on the part of appellant to assault the prosecutrix in this case with intent to commit forcible rape’. That, conceding there was a showing that appellant took very gross and indecent liberties with complainant without her consent, the evidence was insufficient to establish the fact that appellant intended to have carnal knowledge of the victim against her will, and to use for that purpose whatever force might be required. That at most, the offense proven amounted only to an assault as denounced by Section 240 of the Penal Code.

In a prosecution such as the one with which we are here concerned, once the assault is proven, the element involved in ascertaining the nature of the offense is the intent with which it was committed. The crime charged is complete if at any moment during the assault the accused intends to have carnal knowledge of the victim against her will, and to use, for that purpose, whatever force may be required. Whether the requisite intent was present in a given case is a question for the jury to decide from the acts and conduct of the accused and the surrounding circumstances. It becomes a question for the court only when it can reasonably be said that the facts shown in evidence afford no reasonable ground for an inference as to the existence of such intent. People v. Woods, 75 Cal.App.2d 246, 170 P.2d 477; People v. Lutes, 79 Cal.App.2d 233, 236, 179 P.2d 815; 22 Cal.Jur. 366–369.

Without again repeating the evidentiary facts, suffice it to say that we are satisfied that the testimony hereinbefore narrated clearly establishes an assault and supports the implied finding of the jury that appellant was possessed of the requisite intent. That appellant contemplated and intended sexual intercourse is evidenced by his statements to the police officer that he thought ‘Bertha was ready’ and that he thought he could ‘make out with her.’

The manner and extent of the force he used in the face of the vigorous resistance offered by the prosecutrix, taken in conjunction with the other facts and circumstances shown in evidence, amply justifies an inference that appellant had an intent not only to have intercourse, but to commit rape, and for that purpose to use whatever force might be required.

Appellant urges that ‘There is no proof that at any time he had his sexual organs exposed or that he had an erection (or could get one—he was 51; she 29) or that he at any time attempted in any way to put his sexual organs in her private parts.’ No such exposure was required. Once the assault is established, the crime charged is complete, as heretofore pointed out, if at any time during the assault, the accused intends to have carnal knowledge of the victim, and to use for the accomplishment of that purpose, whatever force might be required. The fact that he desisted prior to the accomplishment of his intended purpose is immaterial.

As to sexual capacity, we find no evidence in the record of any contention of the impotency of appellant. While such a contention might be admissible as relevant to the question of intent, it was not offered in the instant case.

While the absence of an outcry on the part of the prosecutrix might tend to refute the hypothesis of guilt, it is by no means conclusive. People v. Norrington, 55 Cal.App. 103, 108, 202 P. 932. So the fact that the assault here in question was committed at a place and time when interruption and discovery might possibly have followed a vigorous outcry on the part of the prosecutrix, though it was a circumstance, possibly a strong one, tending to exonerate appellant of the forcible intent charged, yet the deduction therefrom was one of fact. And, in view of all the evidence appearing in the record, we can not say that the jury were bound to allow it greater weight than they did.

In support of his claim that the evidence does not show an intent to commit rape appellant relies strongly upon the case of People v. Manchego, 80 Cal. 306, 22 P. 223. However, in that case, while the defendant was accused of the crime of assault with intent to commit rape, he was convicted of simple assault. The appellate court was therefore not confronted with the necessity of determining the validity of a conviction of the crime of assault with intent to commit rape, as in the present case.

In the case of Commonwealth v. Merrill, 14 Gray, Mass., 415, 77 Am.Dec. 336, evidence of force was entirely lacking. And in the case of People v. Fleming, 94 Cal. 308, 29 P. 647, the conviction was reversed on the ground that while the evidence showed that the accused was desirous of having intercourse with the prosecutrix, there was no evidence that he intended to accomplish his ends by forceful means and that there was no fear of personal violence on the part of the prosecutrix because there were no threats of violence.

Appellant next complains that the court failed to properly instruct the jury that the offense of assault with intent to commit rape is not committed where there is no proof of an intent to overcome resistance by ravishment—by force and violence. The court accurately instructed the jury as to what constitutes an assault, defined a ‘violent injury’, and the crime of rape as set forth in subdivisions 3 and 4 of Section 261 of the Penal Code. The jury was correctly instructed as to the requisite elements involved in the crime charged, including the element of intent. In other words, the jury was admonished that the required intent is not present unless the accused intends to have intercourse by force and violence sufficient to overcome any resistance offered by the victim.

As was said in People v. Carothers, supra, 77 Cal.App.2d at page 255, 175 P.2d at page 32: ‘Where an instruction on a particular point or points as given by the court is correct as far as it goes, and the only valid objection, if any, to it is that it is deficient or inadequate by reason of its generality, indefiniteness, or incompleteness, if defendant desires additional, amplified, explanatory, fuller, or more complete, elaborate, comprehensive, definite, specific or explicit instructions on such point or points, he must properly request the same, otherwise error cannot be predicated upon the failure to give such additional instruction. (Citing cases.)’

A request for more specific instructions than those given was not made and appellant cannot therefore, in view of the accurately given instructions upon the issue of intent and resistance, urge error in this court because of the failure of the trial court to give more specific instructions.

There was no prejudicial error committed in failing to instruct the jury on intoxication. A reading of the record discloses that appellant did not base his defense on that ground, nor is there any substantial evidence showing that appellant was in such a state of intoxication as would require the trial court, notwithstanding his failure to request such an instruction, to sua sponte recognize the necessity of giving such an instruction. People v. Coston, 82 Cal.App.2d 23, 41, 185 P.2d 632.

Although he made no request of the trial court to instruct the jury as to the lesser and included offense of simple assault, appellant now, for the first time, urges that such failure constitutes reversible error. With this contention we can not agree. The prosecution relied upon their ability to establish all the elements of the crime of assault with intent to commit rape, or to accept a verdict of not guilty if they failed to establish such elements. Under such circumstances, where he fails to request an instruction on a lesser and necessarily included offense, the accused cannot complain, on appeal, that he was prejudiced by the failure to give an instruction as to an included offense, where the evidence of the prosecution, if believed by the jury, as evidently it was, fully supports the verdict rendered. From a careful study by us of the entire record, we cannot say that a miscarriage of justice resulted from the claimed error in failing to give an instruction as to a lesser and necessarily included offense when none was requested. People v. Driscoll, 53 Cal.App.2d 590, 595, 128 P.2d 382; People v. Perhab, 92 Cal.App.2d 430, 437, 438, 206 P.2d 1133; People v. Pickens, 61 Cal.App. 405, 410, 214 P. 1027; People v. Stevens, 141 Cal. 488, 491, 75 P. 62; People v. O'Neal, 67 Cal. 378,

Appellant's contention that pursuant to Section 1181 of the Penal Code this court should reduce the offense to simple assault is without merit. Since the evidence supports the verdict returned by the jury finding appellant guilty of the crime charged in the information, we are without authority to substitute our judgment for that of the duly constituted arbiters of the facts.

Equally without merit is appellant's next claim that the District Attorney was guilty of prejudicial misconduct by which a fair trial was denied.

In this regard, it appears that while the prosecutrix was being examined as a witness by the prosecutor, the following occurred:

‘Q. (By Deputy District Attorney). And how long would you say that this kept up there, this struggling around the bed while he was doing that to you, how long would you say? A. About half an hour.

‘Q. Seemed like that at any rate, I suppose, seemed quite a little while, did it? A. Yes.

‘Q. In other words, it wans't just flop you on the bed? A. Fighting all the time with him.

‘Q. Bang! Bang!

‘Well, did you notice anything about your uncle's clothing after he jumped up, did you see him do anything to his clothing? A. Pulled his pants up quick after. I ran for the kitchen as fast as I could. I noticed when I got off of the bed he pulled his pants up some.’

Other than to characterize the actions of the prosecutor as ‘impetuous and forceful conduct before the jury’, to which no assignment of claimed misconduct was made at the trial, appellant does not specify any particular portion of the foregoing as objectionable, but presumably he objects to the expression, ‘Bang! Bang!’ used by the Deputy District Attorney. We fail to perceive in the conduct of the prosecuting officer such flagrant violation of the rights of appellant that an admonition by the court, had objection been made, would not remove the prejudicial impression, if any was made, upon the minds of the jury. Not having made appropriate objection at the trial, appellant is not now entitled to have the claimed objectionable remarks of the prosecutor reviewed or considered on appeal. People v. Gray, 52 Cal.App.2d 620, 658, 659, 660, 127 P.2d 72.

Finally, appellant contends that the information fails to state an offense against the laws of the State of California because the pleading did not ‘charge the defendant with intent to overcome the resistance of the prosecutrix by force and have intercourse against her will, but only that he assaulted her with intent to have sexual relations by means of force.’ There was no demurrer to the information, and the point is for the first time raised in this court. However, we are satisfied that the information is sufficient. It charged that appellant ‘did wilfully, unlawfully and feloniously make an assault upon Bertha Kieber, a female person not then and there the wife of said Joseph Emal Meichtry, with the intent then and there, and by force and violence, to have and accomplish an act of sexual intercourse with and upon said Bertha Kieber.’

The pleading substantially follows the language of the statute, which says: ‘Every person who assaults another with intent to commit rape, * * *’, Penal Code, Sec. 220. Authority for much of the language of the information is found in Section 261 of the Penal Code which defines the crime of rape.

The information states the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, Penal Code, Sec. 950, subd. 2. In such case the information is sufficient.

The word ‘assault’ as used in the statute, Penal Code, Sec. 240 implies force by the assailant and non-consent and resistance by the one assaulted.

The judgment is affirmed.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.