People v. Bonzani

The defendant was informed against by the district attorney of Stanislaus County for the crime of rape and upon his trial was by the jury adjudged guilty of said crime. This appeal is by the defendant from the judgment.

The principal point upon which a reversal of the judgment is urged is that the evidence is insufficient to justify the verdict.

The alleged crime was committed on a ranch situated about a mile north of Crow’s Landing, in Stanislaus County, on the twentieth day of August, 1913. The prosecutrix, or the female with and upon whom the crime charged is alleged to have been perpetrated, is one Mrs. Bell de Bell. At the time of the commission of the alleged crime, she was about fifty years of age and was of unusual corpulency, weighing, as she testified, about two hundred and twenty pounds.

The defendant is an Italian, and, at the time of the occurrence which is the foundation of the charge in the information, was able to speak the English language only to a very

The ranch at which the alleged crime was committed was owned by the “Paul Crow Stock Company,’’ presumably a corporation, and it was used for the purpose of a dairy business. The first husband of the prosecutrix was named Crow, and she was the mother of two children—one a son who had attained manhood’s estate, and a married daughter, a Mrs. Larkins. The son of the prosecutrix was in immediate control of the ranch and the dairy business thereon conducted, but, at the time of the commission of the crime charged against the defendant', he was absent from home and Mrs. de Bell was temporarily in charge. Mrs. Larkins did not reside on the ranch. Mrs. de Bell’s usual and principal occupation was that of cooking for persons employed on the ranch.

The defendant, it appears, entered into the employment of the company, at said ranch, on the first day of August, 1913, and his duties were to milk about thirty head of cows, separate the cream, and feed the hogs and calves. Thus, as is apparent, he was employed for nineteen days prior to the day upon which he is alleged to have committed the crime charged in the information.

The defendant and the prosecutrix were alone on the ranch when the crime charged was committed, and were, consequently, the only immediate witnesses thereto. It is, therefore, manifest that the jury, in reaching the conclusion represented by their verdict, were mainly influenced by the testimony of the prosecutrix.

The defendant admitted, not only upon the witness stand at the trial, but at the time of his arrest, that he had had sexual relations with Mrs. de Bell on the day named in the information, but insisted that such relations were sustained Avith her consent. On the other hand, the prosecutrix at all times declared that the defendant accomplished the act of sexual intercourse with her by means of force and violence and against her will and consent; that, without avail, she resisted him with all the physical force of which she was capable.

On the twentieth day of August, the defendant and the prosecutrix ate supper together between the hours of 7 and 8 o’clock n. m. After they had finished supper, the defendant remained in the dining room, but the prosecutrix stepped out on the porch. She shortly returned to the dining room, and after going in and out of the house several times, she handed the defendant a cigar, after which, while she was standing near the door leading to the porch, the former grabbed her by the arm and attempted to force her further into the house. She resisted him with all her physical power and succeeded in getting out on the porch, he still clinging to her. She begged him to cease his hold upon her and to let her alone, but he still clung to her, finally catching her by the shoulders and throat and throwing her upon a couch, which was then on the porch and upon which the prosecutrix had occasionally

The witness, Munson, to whose home the prosecutrix started immediately after she ivas assaulted, testified that, at about eleven o’clock of the night of the 20th of August, he was awakened by the scream of a woman, and that he thereupon and immediately arose from his bed, went outside the house and listened. The sound of the voice seemed to come from the direction of Mrs. de Bell’s house, and Munson hurriedly dressed and ran across his field in that direction and met the prosecutrix walking through said field. She was then approximately an eighth of a mile from the witness’s house. “She was in a very exhausted and excited state,” said Munson. “In fact,” he continued, “she swooned down to the ground when I met her and she lay on the ground a minute or two before I could help her up. I-assisted her to my house and let her rest awhile and put her in my ear and drove to Crow’s

Mrs. Alice Oswald, proprietress of the hotel at Crow’s Landing, testified: That Mrs. de Bell was brought to her hotel, at about 11:30 o ’clock on the night of the 20th of August, in an exhausted condition, or, to use the precise language of the witness, “she was completely gone up”; that she assisted Mrs. de Bell to bed and later gave her a hot bath; that the prosecutrix remained in bed all of the succeeding day; that she (witness) examined Mrs. de Bell’s clothing and found that they were “full of his (defendant’s) filth.”

Dr. F. H. Gates, a physician, testified that, on the morning of August 21, he professionally visited Mrs. de Bell, at Mrs. Oswald’s hotel, and that he found her in bed, suffering from “extreme shock, both mentally and physically”; that he discovered a bruise upon her upper left chest. The doctor prescribed a treatment for her nervous condition.

The witnesses, Davis and J. B. Newsome, testified that the defendant, after his arrest, admitted to them that he had had sexual connection with Mrs. de Bell at the time stated in the information.

No other testimony than that of which the foregoing is a brief epitome, except the deposition of the prosecutrix taken at the preliminary hearing of the charge before a magistrate and her rebuttal testimony, contradicting certain statements involved in the testimony of the defendant, was submitted by the people to the jury.

The first and the principal question with which we are concerned on this appeal is: Is the evidence upon which the verdict was obviously predicated and of which the above statement involves a fair synoptical resumé, so deficient in probative force as to justly justify this court in declaring, as a proposition of law, that it is incapable of upholding or sustaining the verdict? In other words, is this court warranted in holding that the testimony of the prosecutrix appears upon its face to be wholly unworthy of belief and that the jury were not, therefore, justified in returning a verdict of conviction ?

Manifestly, in answering the question thus propounded, it is not within the province of this court to consider adversary testimony, or the testimony presented by the defendant con

But, before taking up the proposition vigorously pressed by the defendant and upon which is mainly founded his claim of right to a reversal, it is only fair to refer briefly to the testimony submitted to the jury in support of his defense.

As before stated, the defendant, while admitting that he had carnal connection with Mrs. de Bell on the occasion specified in the information, denied that it was accomplished by a resort by him to force or violence. Indeed, he asseverated at all times that the act was not only consented to by the prosecutrix, but that it was virtually the result of her own solicitation. The witnesses, McGinnes and E. T. Newsome, gave testimony of certain extrajudicial statements made by Mrs. de Bell, after the assault, and which tended to discredit her testimony and to show that the sexual relations between her and the defendant were freely consented to by her. Thus it appears, as generally it so appears in all cases of contested issues of fact, that there is a decided conflict in the evidence upon the question of the alleged criminal culpability of the accused.

The testimony of the extrajudicial statements of the prosecutrix, made after the commission of the assault, and which statements bear the appearance of being inconsistent with the theory that the defendant accomplished the act by the use of force, was, like all other testimony which is not unreasonable upon its face, for the jury’s consideration, to be by them given such weight as they conscientiously believed it to be justly entitled to. It was, in other words, for the jury to say: 1. Whether the testimony disclosing the alleged incon

But the force of counsel’s argument in support of their position that the verdict is without the necessary support to uphold it is directed against the testimony or story of the prosecutrix. It is vigorously insisted that her testimony is intrinsically incredible, and that, as without her testimony the verdict, manifestly, cannot stand, it is within the legal power and, indeed, the duty of this court to nullify or set aside the result reached by the jury. To support this position, counsel for the defendant; in their briefs, subject the testimony of the prosecutrix to an analytical and critical exam

But we cannot say that the story told by Mrs. de Bell, viewing it as a whole, is inherently improbable. While it is true that she is or was then a woman of unusual obesity, it does not appear, aside from that fact, that she was of great strength and physical vigor. It does not necessarily follow that, because a person may be of extraordinary avoirdupois, he is possessed of corresponding or even approximately corresponding physical strength and vigor. On the contrary, it is known to be frequently true that where avoirdupois amounts to obesity or to the development of flesh out of proportion

As to the fact that she remained on the ranch alone with the defendant after his first attempted familiarities with her, Mrs. de Bell explained that, at that time, there was then no other person than herself to look after the ranch and the dairy business and that she, therefore, felt impelled to remain there, although she was in constant fear of the defendant. We perceive nothing so unreasonable in this explanation as to justify us in holding that the jury should have repudiated it, nor is there anything in the fact of her remaining on the ranch under the circumstances indicated, as so explained, which renders her testimony in the main unreasonable or improbable, per se.

Referring to the circumstance of the giving of a cigar to the defendant by her, a few moments prior to the attack made upon her, Mrs. de Bell explained that, after she and the defendant had finished supper, he remained in the dining room and displayed no disposition to depart therefrom, and that, being in fear of him from his previous actions toward her, she was anxious for him to leave the house and go to his “bunk.” She further explained that she had observed that he was fond of smoking, and that, in the belief that thus he would be led to go outside for the purpose of smoking it, she gave him the cigar. It was for this reason and no other, she asseverated, that she gave him the cigar. This explanation is not, upon its face, unreasonable, and, therefore, the circumstance of the giving of the cigar to the defendant, as so explained, cannot be held to stamp the essentially vital parts of the story of the prosecutrix as improbable. It was, in other words, for the jury to determine whether the motive of the prosecutrix, in giving the defendant the cigar was that of friendliness or a desire to encourage his attentions, or whether

But there are some other circumstances, of which testimony was received, and to which we may now briefly advert, which apparently stand in strong corroboration of Mrs. de Bell’s version of the occurrence.

.It may first be observed that, while, admittedly, it would always be more satisfactory if, in cases of rape, where guilt actually exists, testimony other than that of the prosecutrix supporting or tending to support her story were available and submitted to the jury, a verdict of conviction in such cases may, nevertheless, stand on her testimony alone, for the law does not require her to be corroborated to support the charge. In this case, however, as stated, the prosecutrix appears to have been corroborated by the circumstance that, at a late hour of the night of the assault, and a few hours after it took place, she stealthily, or nnlmown to the accused, fled from her home, with the intention of going to that of a neighbor—-Ora Munson. When a short distance from the latter’s home, she began screaming, which was heard by Munson, then in bed, who hastily proceeded out into his field, in the direction from which the sound of her voice came, and found her suffering from what appeared to be a severe nervous shock. Munson at once conveyed her to the hotel of Mrs. Oswald, at Crow’s Landing, where she remained in bed for over twenty-four hours, suffering, so the doctor called to attend her stated, from severe physical and mental collapsion, due to an extreme nervous shock. . The jury were warranted in concluding that her condition, thus described, was the consequence of her previous terrible experience with the defendant, and, as so viewing that circumstance, could justly have held it to be, as undoubtedly they did so regard it, strongly corroborative of the story as told by the prosecutrix on the witness stand, for it is hardly conceivable that, were it true that she freely and voluntarily assented to the act of sexual intercourse with the defendant, she would have left her home at the dead hour of the night under the circumstances as shown and have revealed to others the fact of her illicit relations with the accused or that such a condition of mind and body as she was found to be in only a few hours after the act had been committed would have developed.

It appears that, after retiring and deliberating for a time upon the ease without reaching a conclusion, the jury were returned into court, to be further instructed and their minds refreshed as to certain testimony. While thus in court, one of the jurors asked the court what the penalty would be in the event that a verdict of guilty was reached, saying that he thought the “defendant was guilty to a certain extent.” It further appears that, when pronouncing judgment on the verdict, the judge remarked that he “had some little question about the technical violation of the law” by the defendant. Upon both these propositions counsel lay considerable stress. But they possess no importance and can justly exercise no influence in the determination of the question of the propriety or impropriety, legally, of the verdict.

Precisely what the juror meant by the opinion expressed by him that the defendant was guilty only to a limited extent, we are unable to divine. It may be that he intended to say that at that particular moment he was of the opinion that the defendant’s conduct, as he viewed it through the evidence before him, amounted to nothing more than a futile attempt to commit the act. Certainly, after listening to the charge of the court, it is not for an instant supposable that, accepting the testimony of the prosecutrix that the defendant accomplished only a partial insertion of his privates, he conceived or, rather, misconceived it to be in accord with the law to measure the degree of the defendant’s criminal culpability by the extent of the penetration accomplished. But, whatever may have been the idea at the base of the opinion so expressed, the important fact remains that, after again retiring for deliberation upon the ease, a verdict of guilty was reached, and the presumption is that it was arrived at only upon a fair and impartial consideration of the evidence under the rules of law as declared to the jury by the court.

As to the statement of the judge, above referred to, it is to be said that, if thereby he intended to express a doubt as to

The only other point urged for a reversal is that the people failed, so it is claimed, to prove that the prosecutrix was not the wife of the defendant. That it is essential in and incumbent upon the people to plead and prove, in cases of rape, that the female upon whom the crime is alleged to have been committed is not the wife of the accused, is an elementary proposition in this state, and we think that the people in this case sufficiently discharged the burden thus imposed.

There is, it is true, no direct testimony upon that point. The defendant testified, however, that he was a married man and that his wife was in Italy. This testimony, considered in connection with the fact that Mrs. de Bell had known the defendant but a little beyond a half a month before the assault was committed, and the further fact that the names of the prosecutrix and the defendant are not the same, is sufficient to justify the inference that they were not husband and wife when the crime alleged took place, and the presumption arising from the verdict is that the jury drew such inference from the testimony and that thus they were convinced beyond a

We have carefully scrutinized the record and have failed to find any legal reason for disturbing the verdict.

The judgment is, therefore, affirmed.

Chipman, P. J., and Burnett, J., concurred.