People v. Smith

Ronald Wayne Smith appeals from a judgment of conviction entered upon a jury verdict of lewd and lascivious acts (Pen. Code, § 288).

On March 19, 1964, 13-year-old Marie Gabaldon accepted defendant’s offer of a ride to a high school to pick up Marie’s sister. According to Marie, defendant drove beyond the school, stopped on a dead-end dirt road, and raped her. Released, she cleaned herself up at a market restroom and returned home too afraid to tell anyone about the rape. She first told her mother about it six months later. On the date of the rape, Marie had just finished a seven-day menstrual period. At trial, on October 26, 1964, she claimed to be seven and one-half months pregnant.

Defendant contends Marie’s testimony is inherently improbable and the evidence is insufficient to support the conviction. Neither is her testimony totally unworthy of belief, nor is her claimed conception just after finishing a menstrual period, although highly improbable, physically impossible. (People v. Headlee, 18 Cal.2d 266 [ 115 P.2d 427 ]; People v. Penrice, 195 Cal.App.2d 360 [ 15 Cal.Rptr. 733 ]; People v. Carr, 133 Cal.App.2d 783 [ 248 P.2d 977 ].) Marie’s testimony *491 alone is…