People v. Mazzurco

The appellant was charged with the crime of rape, in that he assisted and abetted one Salvador Giulia, in the commission of an act of sexual intercourse, accomplished by said Giulia, with force and violence upon Mary Schiro. He was convicted and from an order denying his motion for a new trial, and from the judgment of conviction and sentence he appeals.

According to the testimony of the prosecutrix, a young Italian woman, early .on the morning of April 7, 1919, while she was proceeding to her work in the city of San Jose,i she was seized and forcibly placed in an automobile by three men, Salvador Giulia, Sam Mazzurco, and one Carcuffa. She was conveyed to the ranch of appellant some six miles from the scene of the kidnaping. When she arrived at the house she was taken inside by the three men already named, assisted by Mona Mazzurco, Mrs. Frank Mazzurco, and the appellant. She was dragged by these people into a bedroom, where she was left with Giulia. Once or twice after that all the parties came into the bedroom, and the appellant, together with the others, assisted in forcibly taking off her clothes. She was left with Giulia, the door being closed and locked from the outside. Giulia then forcibly committed the acts of sexual intercourse upon her.

[1] The appellant devotes a large portion of his argument to a discussion of the evidence of the complaining witness, which he claims was of a “very weak character.” The question of what degree of credibility should be given to the statements of the prosecutrix, while on the stand, and the weight to be accorded to her testimony was one addressed solely to the discretion and consideration of the jurors. (People v. Compton, 123 Cal. 403 , 407, [ 56 Pac. 44 ]; People v. Durrant, 116 Cal. 179 , 200, [ 48 Pac. 75 ].)

The defendant attempted to establish an alibi, as part of his defense. Three witnesses, one a neighboring land owner and the other two his employees, testified as to seeing the defendant at work in his orchard at various times during the morning upon which the alleged rape was perpetrated. Appellant argues from an analysis of their testimony that it was impossible for him to have been present in the house and to have assisted in the commission of the acts testified to by the complaining witness. But the jurors may have disbelieved the testimony tending to prove an alibi, or, what

[2] Over the objection of the defendant, the court admitted the testimony of the prosecutrix, and several other witnesses, as to what occurred when she was forcibly seized in San Jose and carried in the automobile to the appellant’s ranch. The defendant was not present and took no part in the actual kidnaping. He contends, therefore, that the evidence should not have been admitted. Ciulla was madly in love with the Schiro girl, and sought to marry her. She rejected his proposal. There is evidence tending to show that a conspiracy existed on the part of Ciulla, Ciulla’s sister, Mrs. Prank Mazzurco, her husband, Prank Mazzurco, this defendant and appellant, the latter’s brother, Sam Mazzurco, his wife, Mrs. Sam Mazzurco, and one Carcuffa, to force, entice, or seduce the complaining witness, Mary Schiro, into a marriage with Ciulla. From all that transpired it appears that raping the girl, by Ciulla, was undoubtedly a part of this plan. It was in pursuance of this scheme that the girl was kidnaped, on her way to work, in the city of San Jose, by Ciulla, Sam Mazzurco and Carcuffa, and carried in the automobile to the home of this appellant. There, as testified to by the prosecutrix, she was forced to undergo the indignities already described, the appellant taking part in the acts of the ill treatment to which she was subjected. The evidence as a whole, if believed, was amply sufficient to establish such conspiracy. That being the fact, all statements, acts, and declarations made by any of the parties pending the commission of the crime, looking toward its consummation, were competent evidence against each and every conspirator. (People v. Lovren, 119 Cal. 88 , 91, [ 51 Pac. 22 , 638]; People v. Holmes, 118 Cal. 444 , 456, [ 50 Pac. 675 ]; People v. Ciulla, 44 Cal. App. 719 , [ 187 Pac. 46 ].)

The appellant united his own persuasive efforts with those of the other conspirators, after the rape, and following the conversation the girl had with Mona Mazzurco. In his talks with her he tried to impress her with “the chances” she was

[4] Appellant complains that the court placed an undue restriction upon his examination of the prosecutrix. It appears that the girl testified upon the preliminary examination and at the trial of Giulia, who was convicted of two offenses, kidnaping and rape. (People v. Ciulla, 44 Cal. App. 719 , [ 187 Pac. 46 ]; 44 Cal. App. 725 , [ 187 Pac. 49 ].) It was the contention of the appellant that at the trial of this case, on direct examination, she gave testimony more explicitly connecting him with the affair, and testified to matters relating to him, not referred to by her in her testimony at the trial of Giulia. On cross-examination, and for the purpose of getting before the jury the fact that the girl had not before made these statements, counsel for appellant started to read to her at some length her testimony given upon the Giulia examination and trial. Upon being checked by the court, counsel then repeated to, her various portions of the testimony given on her direct examination at the trial of appellant, and asked her if she so testified at the examination or trial of Giulia. The court sustained the objection of the district attorney, upon the ground that the questions were incompetent, irrelevant, and immaterial in their nature, and that proper foundation had not been laid, to wit, the production and presentation to the witness of a transcript of her previous testimony, showing she had so testified. For the obvious reason that no such record existed, the appellant could not comply with the court’s demand. There was no foundation for this objection and ruling. It was not contended that the witness had so testified. On the contrary, the cross-examination was to the point that she had not, and to elicit the reason why she had not, and an explanation of her present testimony. The questions were not by way of impeachment, but were more to test the credibility of the

Since the convictions in the two cases last cited were set aside and the judgments reversed upon the ground of prejudicial error in unduly restricting cross-examination, section 4J/2 of article VI of the state constitution has been adopted. That section abrogates the old rule that prejudice is presumed from any error of law. (People v. O’Bryan, 165 Cal. 55 , 65, [ 130 Pac. 1042 ].) It is no longer the case that injury is presumed from error; the injury must appear affirmatively to the mind of the court after an examination of the entire cause, including the evidence, or from the nature of the error itself. (Vallejo etc. R. R. Co. v. Reed Orchard Co., 169 Cal 545 , 554, [ 147 Pac. 238 ].) Unless from such examination it affirmatively appears that a substantial injury, as well as error, has resulted, the judgment must be sustained. (People v. Merritt, 18 Cal. App. 58 , 65, [ 122 Pac. 839 , 844].) Except in the instances we are now considering, no error encumbers the record in this cause. Except, also, in those particulars, the defendant was granted a very wide latitude in his cross-examination of the complaining witness. In view of the evidence, which we must take into consideration, and which we think was amply sufficient to clearly establish the guilt of the defendant to the satisfaction of the jury, and to warrant the conviction of the defendant, we are unable to perceive how appellant was prejudicially injured by the ruling of the court.

The judgment is affirmed.

Richards, J., and Kinsell, J., pro tem., concurred.