Respondents Brief — Panama Mail SS Co. v. Vargas
Supreme Court brief1930
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Due service and receipt of a copy of the within is hereby admittgs
this day of October, 1929.
Attorneys for Petitions
' Office Supreme Court,
eS FILED
FILE COPY Apr 1619
@ CHARLES ELMCRE ns
In the Supreme Court
OF THE
Buited States
“a ———
Octosrr TERM, 1929
No. 425
Panama Mari STEAMSHIP ComMPANY
(a corporation),
Petitioner,
vs. -
Exnestina ISABELLE VARGAS,
Respondent.
BRIEF FOR RESPONDENT.
/ H. W. Horton,
Pacific Building, San Francisco,
Attorney for Respondent.
Subject Index
Page.
The learned Circuit Court of Appeals followed the decisions
of this Court, 266 U. S. 511, 518
b. Review of petitioner’s introduction
e. Reflections on the Circuit Court of Appeals
_ d. Full statement of the case
e. Respondent is corroborated by the laws of nature....
a. A carrier is liable for the wanton acts of its servant. .25, 26
b. Errors in statement of petitioner’s brief
e. The evidence hereia shows nothing but rape
d. The uncorroborated testiinony of the prosecutrix will
sustain a conviction of rape, if the trial Court or jury
believe her
. Respundent the victim of an assault which constituted
rape was only required to do the best she could and
the law did not require her to make a complaint... .
38, 39, 40, 41, 42, 43
. Lack ef consent is all that is necessary to constitute
civil rape
. Petitioner’s authorities are all old, and have either
been overruled or modified
The law of criminal and civil rape
The law of civil rape
The Court erred in not awarding a larger sum as damages. .51, 53
Table of Authorities Cited
Baccio v. The People, 41 N. Y. 265
Campbell v. Pullman Palace Car Co., 42 Fed. 48<
Champagne v. Hamey, 189 Mo. 709
Commonwealth v. Cleary, 172 Mass. 175, 176
Connors v. State, 47 Wis. 526
Estate of McNamara, 181 Cal. 82, 89, 90
Garvick v. The Burlington Cedar Rapids Ry., 131 Iowa
Jensen v. Lawrence, 94 Wash. 148
Kansas City Southern Ry. Co. v. Willsie, 224 Fed. 908..
Kreamer v. Weigand, 91 Neb. 47, 51
Lind v. Closs, 88 Cal. 6
Lindville v. Green, 125 Mo. App. 290
Marshall v. Taylor, 98 Cal. 55
McGhee v. McCarley, 103 Fed. 55
McLain v. State, 159 Wis. 204
Mills v. United States, 164 U. S. 644
New Orleans & N. E. Railroad Co. v. Jopes, 142 U. S. 18, 20
Norton v. Larney, 266 U. 8. 511, 518
N. Y. Central Ry. v. Lockwood, 17 Wallace 357
N. Y. Central Ry. v. Mohiny, 252 U. 8. 157, 158
Olsen v. State, 11 Nebraska, 276
Palmer v. Baum, 123 Ill. App. 584
People v. Bensen, 6 Cal. 221, 223
People v. Bonzani, 24 Cal. App. 549
People v. Dohring, 59 N. Y. 374, 383
People v. Horn, 25 Cal. App. 583
People v. Jones, 76 Cal. App. 144, 148
People v. Kuches, 120 Cal. 566, 569
People v. Lawler, 79 Cal. App. 208, 209
People v. Martinez, 59 Cal. App. 121
People v. Mazzurco, 49 Cal. App. 275, 276
People v. Moore, 155 Cal. 237, 240
Taste oF AuTHoRITIEs CITED
za Pages
- People v. Norrington, 55 Cal. App. 103, 109.............. 43, 46
Peuple v. O'Sullivan, 104 N. Y. 481................0e0eee 40, 47
People v. Slaughter, 33 Cal. App. 565, 381................ 36
Peopl2 v. Valencia, 85 Cal. App. 306......... ii at oue a Kok 37
R. v. William Crocker, 17 English Criminal Appeals (1922),
TRE Rd e es sun SpA ERER SS OEEES BOM SbASTRA DA OR 36
State v. Barnes, 140 Minn. 519......... 2... ee cence ee eeee 48
Se ©. CONG, Te OU BO inch ckece sc ccapedersacvenves 38
Siete v. Cowing, 99 Minn. 123. .............cesceesenses 48
State v. Kinney, 44 Conn. 153............. ccc cee cence 49
ee Pe SOE BEG, GEG eas pks coh sends cevcesivecc 41
State v. Peters, 8 Jones (North Car.), 19-22.............. 41
State v. Sebastian, 81 Conn. 1, 6... . 2.2.2.2... ew eecceeens 49
Steamboat Co. v. Brockett, 121 U. S. 637, 645............. 25
The City of New York, 54 Fed. 181.............0.0-eeee- 37
Totten v. Totten, 172 Mich. 565, 575...............00008- 44
Whittaker v. State, 50 Wis. 518..............0 5 eee eeeee 47
Wiltska v. Moudray, 83 Minn. 73, 81............0--+0e0- 48
Text Books
Pages
American Law Reports, Ann. Vol. 6, 1911......5......... 44
Bishop on Criminal Law, Sec. 1122............00.-eeees 50
‘Collier’s New Excy., Ed. 5058, Vol. TV, Ds BB. ccs cccccanss 32
Cooley’s Blackstone, Vol. 2, p. 1374............0eeeeees 49
Re ar |: Sear re rere reer ES try ot ree re 45, 52
Wharton & Stille’s Medical Jurisprudence, Vol. III, p. 27..
In the Supreme Court
OF THE
United States
OctoBER TERM, 1929
No. 425
Panama Mart STeamMsHip CoMPANY
(a corporation),
Petitioner,
vs.
ERNESTINA ISABELLE VARGAS,
Respondent.
BRIEF FOR RESPONDENT.
RESPONDENT ALSO RESPECTFULLY REQUESTS CON-
SIDERATION OF HER BRIEF FILED IN OPPOSITION
TO THE GRANTING OF WRIT OF CERTIORARI.
&
STATEMENT OF THE CASE.
The many inaccuracies, omissions and misstatements
in petitioner’s statement of the case contained in its
brief, including that part of it printed on page 1,
headed, ‘‘Introduction,’’ compel respondent to make a -
complete statement, which we offer with an apology
for its length, which is found to be unavoidable.
Briefly, however, the facts are that respondent, a
previously chaste girl of the age of 24 years, well
brought up and educated, went on board petitioner's
vessel, ‘‘Ecuador,’’ on October 10, 1927, at La Liber-
tad, Salvador, for passage to San Francisco. She was
a human being and petitioner took her safety in
charge and under its care when she went on the vessel,
She took seasick immediately upon arriving on the ves-
sel and so continued to San Francisco. About 38 hours
after her arrival on board, while she was in her room
alone, nauseated by seasickness and weak from the
lack of food, one Jose Blanco, or Jose Blanco Reyes,
petitioner’s second steward, a petty officer, entered the
stateroom occupied by her in an isolated part of the
vessel and criminally assaulted her against her utmost
resistance—the assault being as atrocious an assault
as ever was committed on a human being-—by reason
of which she became pregnant with child, born to her
according to the average law of human gestations, 280
days thereafter, and the child resembles Blanco. (R.
45, 149.) Respondent did not assume the risk of that
assault. as
All the expenses of the maintenance of the child,
amounting to $31.00 per month, not including cloth»,
having to be borne by respondent, she working as a
seamstress. (R. 44, 47, 49.)
There has never been any denial that he is the father
of the child and we find nothing in the record that
explains its conception excepting the testimony of
respondent and admissions made by Blanco himself
and just what petitioner depends upon we do not —
3
_ know, other than it has picked out a sentence here and
‘there in the testimony with the possible hope that it
might be believed, without a word of evidence to base
it on. That a weak, seasick, previously chaste girl,
well brought up, voluntarily solicited sexual inter-
course with a total stranger and had only spoken to,
to the extent of saying in substance, ‘‘I thank you,”’
38 hours before the outrage was committed. (R. 60-
61.)
Testimony has to be taken as a whole. We now ask
the court’s attention to that part of petitioner’s brief
marked ‘‘Introduction,’’ as follows:
The libel was filed March 22, 1928. (R. 8.) The
trial commenced September 12, 1928, and lasted three
days. (R. 21, 22, 23.)
In the five months and 21 days petitioner took the
depositions of the master, the steward, and the second
steward of the ‘‘Ecuador,’’ the latter being the per-
son who committed the outrage on respondent. It had
in court the purser as a witness, also a passenger, and
there is not the slightest intimation in the record that
it wished other witnesses or wanted any. The child
was born to respondent in a hospital in San Francisco,
on July 19, 1928. It was accessible to petitioner at
the trial if it wanted to compare its features with
Blanco’s. It never asked for time to get further
testimony, if it had or wanted any. So the following
statement on page 2 of peiitioner’s brief is without
any foundation,
“and was therefore barred from obtaining ‘evi-
dence invaluable in such cases.’’
4
Respondent testified through an interpreter. The
cross-examination was both by counsel for petitioner
and by the court. She was on the witness stand a day
and a half, and the court believed her. No one who
saw her on the stand and heard her testify could do
otherwise. Blanco, the Filipino steward, never at any
time tried to protect himself from the charges made
against him. On the contrary, as will hereafter ap-
pear, he admitted the outrage over and over again in
the office of petitioner, Panama Mail Steamship Com-
pany and elsewhere and never denied it until his
deposition was taken in counsel for petitioner’s office,
May 31, 1928.
We also respectfully state, that there is nothing in
the record upon which can be based the claim that the
trial court was influenced by natural indignation or
anything else but the law and the facts of the case,
It was submitted on briefs of both sides, held under
consideration more than four months, and the only
foundation for counsel’s strictures upon that court
must be his belief that the trial court should have de
cided an overwhelmingly established case: of rape,
rightfully or wrongfully in favor of his client.
And we respectfully submit that the reflections on
the learned Circuit Court of Appeals, found on pages
5, 37, 38 and 39 of petitioner’s petition herein, and the
following on. page 3 of its brief,|
“On ap the Cireuit C of Appeals in a two
page ee. practically washed its hands of the
ease by declaring it was a decision of facts in
which the upper court would not interfere,’’
are uncalled for.
5
Judge Rudkin wrote the opinion for that court.
His record as a state and federal judge on the Pacific
Coast is long and honorable, and he needs no champion
on that coast. He has a reputation for reading
all the testimony and the whole of the contents of all
the briefs in any case. The opinion he wrote herein
has the merit of brevity. On its face it shows con-
clusively that he read the whole record, and the con-
clusions of the court as shown by the opinion he wrote
and the judgments herein are in conformity with the
decisions of this court and also the general law.
As to the facts of the case:
In the trial court herein 13 witnesses testified, 7
for respondent and 6 for petitioner, and two deposi-
tions were introduced by respondent, and one that of
the second steward by petitioner.
The evidence (R. 21-24) shows that Miss Vargas
was a woman 24 years old at the time of the occur-
rence she complains of; that she is refined in her con-
duct and manner; well educated, both religiously and
scholastically, the language of her testimony shows
the latter, and not one word against her character
can be found in the evidence.
The evidence further shows (R. 24-25) that Miss
Vargas was born in San Miguel, Republic of Salva-
dor, and lived there all her life, she attended a non-
boarding school from the time she was seven to
twelve years old, and after that became an interne
student at the college of Santa Techla about one
hour’s ride from the capital of Salvador until she
was nineteen, when she went home and lived with
her parents for about five years, making a tittle trip
with her mother to ihe port of La Union, in 1912,
about 15 years before she went on the ‘‘ Ecuador,”
Her father is a jeweler in San Miguel, and in October,
192”. it ~vas decided that she should come to San
Francisco, for the purpose of learning the English
language, taking advantage of the fact that she had
a brother here. (R. 25.) Her father purchased a
ticket, gave her some money, which she deposited
with the purser when she went on board the ‘‘Ecua-
dor’’ and nothing else, having it returned when she
left the boat in San Francisco (R. 37), and she went to
the Port of La Libertad where the ‘‘Ecuador”’ was to
arrive (R. 26-29), a brother in San Salvador, her
cousin and her cousin’s husband being there also.
Her brother and cousin’s husband went with her to
the ‘‘Ecuador”’ in a g*soline launch. Upon getting on
board the brother went to the first person they met,
Jose Blanco, who she later found to be the second
purser or steward. She had been assigned to stateroom
31, which was one room from the end of a corridor
about 80 or 90 feet long. (R. 278.) Her brother ap-
pears to have gone down to the stateroom with her,
and they then went on deck to get her a deck chair,
which her brother purchased for her, Blanco telling
him where to get it. Her brother spoke to Blanco,
who told him that he spoke Spanish, and that he wouid
explain things in the dining-room to her. Her
brother stayed about fifteen minutes on the vessel, and
left for the shore. Blanco himself, by deposition, -
wy ea Ie
0
7
testifying (R. 219), speaking of her brother when on
the vessel :
fg And he asked you to take good care of
her
A. He was recommending me to take good
care of her because I was second steward.
. He asked you to take good care of her,
didn’t he?
A. Yes.
Q. And you said you would?
A. Yes, sir.”’
The only participation respondent had in that mat-
ter or conversation with Blanco prior to the assault is
found in the record at pages 60 and 61, as follows:
That when she went up the gang-plank Blanco asked
if there was anything he could do for her, and said
that he would be glad to serve her in any way, and the
following occurred:
“Q. What did you say?
A. I thanked him.
Q. And that was the only other conversation
as ie up to that time with that fellow?
. Yes.
Miss Vargas became badly seasick the moment she
got on board (R. 29), and so remained up to the time
the vessel arrived in San Francisco, all the witnesses
agree on that. (R. 172, 272.) She went on the vessel
October 10th, about 4 p. m. and the vessel left La
Libertad at 9:45 p. m. October 10th (R. 252), the
steamer having at 8 p. m., October 11th left San
Jose her last port of call and started for San Pedro,
California. (R. 253.) Miss Vargas left the deck at
about 9 p. m. and went to her room; she was alone
in the room, was seasick all night, getting up twice
to vomit in the wash basin (R. 31), but was unable
to vomit anything but bile (R. 94), as she had eaten
searcely anything since she went on the vessel, thirty-
seven hours before, and she woke about, as she thinks,
5 a. m.; having no watch she was not sure about the
time, about from 6 to 6:30, she unlocked the door
for coffee. She also testified that she had a great
deal of nausea. She testified (R. 31):
““A. I left my bed for the purpose of opening
up the door, as I could not go upstairs to get
coffee, I thought it was better to have it brought
there.”’ (R. 32.)
“‘Q. Did you try to dress at that time?
A. Yes, but I could not, because I could not
sustain myself, and I returned to bed.”’
Blanco entered her room at about 6:30 to 7 a. m.
(R. 32, 59), and first asked her how she felt from the
seasickness; she replied quite sick; he then pushed
the door shut, and took hold of one of her hands,
which she withdrew, and then commenced to use love
phrases to her telling her that he had sympathized
with her very much from the moment she came aboard
the ship and had commenced to like her quite a bit.
She asked him to do her the favor to keep still, and
he then got close to her and took her two hands; she
struggled to loosen herself, and he then raised her
two hands above the level of her shoulders and put
them against the pillows. (R. 32, 33.) ‘“‘He had both
of my hands and was lying on top of me and I was
helpless.’ (R. 70.) She kept struggling, telling him
that if he did anything to her he would greatly repent
it (R. 88), he kept kissing her and finally held one of
her hands with one hand and with that arm held the
other arm down, and with the other hand evidently
unbuttoned his pants and in spite of all she could do
had sexual intercourse with her, by that time her
struggles had got her over to the side of the bed, with
her legs from about six inches above her knees over
the side of the bed, he forced her legs apart by insert-
ing one of his legs between hers and got in the center
(B. 91) and completed his purpose.
There is not a shred of evidence that anyone was
near that room at the time other than Miss Vargas
and Blanco; it does appear that the twenty or more
bell-boys, bath-boys and waiters of whom Blanco was
in charge go on duty at 6 in the morning az] ‘the first
thing they do is to serub the floors of the dining-
room, wash the paint work down, wipe the dust down
and polish brass. (R. 270.) Room 31 was immedi-
ately below the dining-room. (R. 278.) After all
the scrubbing and cleaning is done, which with 20 men
doing it must make considerable noise, the waiters get
ready for breakfast, which is at 8 o’clock, after that
they clean up the rooms. (R. 277.)
There were but few passengers on the vessel. The
vessel had only about half of her complement of pas-
sengers. (R. 279.) Respondent’s Exhibit 2 (R. 48)
shows 55, and her complement was 109. (R. 276.)
And the only passengers in the corridor that the state-
room Miss Vargas occupied that appear in the record,
was a Chinaman and his family that joined the vessel
eae
10
at Gautemala, but changed on account of the heat.
(R. 94, 95.)
She was interrogated at length as to why she did
not ery out, and testified (R. 34):
‘‘A, Because at that particular moment I did
not have courage to cry out, and not knowing who
would come to my aid, and my voice might not
have been heard, on account of the noise that
there is in the morning aboard ship, I did not
think it possible to be heard.”’
(R. 87):
‘‘A. Because it didn’t oceur to me, I did not
know that that man entered with bad intentions.
What Tf did was to withdraw my hand forcibly.
A. Because at that moment it did not occur
to me to ery out; the only thing that occurred to
me was to defend myself.
Well, I moved my body and did everything
that was possible to loosen my hand.”
(R. 33):
‘“‘A. In the first place I did not holler out,
because it did not occur to me, because I was
afflicted with what was happening.”’
(R. 34): .
‘“‘A, Besides I was telling him to leave me
alone, to loosen his grip.
A. I don’t know. All I do know is that there
was an opening that led to the barber-shop, which
was some distance away from there, but at that
time in the morning I didn’t know whether it was
open.
(R. 87):
‘‘Because I did not think he came in with bad
intentions because at the moment of entering, he |
asked me, ‘Miss, how do you feel, how are you.’” |
i
pee
ee:
11
(R. 88): |
“Q. Did you strike him in the face, or scratch
him
A. I did not have the chance, because my
hands were held.’’
As to the unlocking of the door, she testified (R.
79) :
“Q. If it was for coffee, why didn’t you ac-
cept the coffee that Blanco, when he first came
into the room, offered to give you?
A. Because he offered to give me coffee, and
I knew that a messboy would bring it, and I did
not want to accept any favors from him.
Q. Why didn’t you want to accept any favors
from him, if he was the second steward, and you
never had a word with him, except going up the
gang plank ?
A. Up to that time I did not know he was
second steward.”’
After Blanco had accomplished his purpose, she got
up and cried. :
(R. 71):
“A. I didn’t say anything; I was so com-
pletely exhausted.”
(R. 35):
‘After the act, he saw me ery, and he told me
not to worry, that he would marry me.
A. That if I wanted to, we would get married
in San Pedro.
A. He says for me to say nothing to anyone;
that he would be of service to me, that I would
not get any advantage through it, because they
would not pay any attention to me.
I said nothing; I only cried.”’
The vessel arrived in San Francisco October 21st,
_and her sister-in-law met her on the steamer and took
12
her to her home. (R. 142.) Her brother missed her
as he was attending to some trunks or papers or some-
thing for her. He went out home when Miss Vargas
handed him a letter from their father that she had
brought up, in which he stated that he was sending
a ring to him by his sister; the brother asked for the
ring and Miss Vargas told him a man on the ship
had taken it away from her (R. 108, 109) ; the brother,
his wife and Miss Vargas then went down to the ship
to get the ring. (R. 110, 143.) There is nothing in
the record showing they had any other purpose in
going. The ring was on her finger at the time of the
assault, but being loose fell off to the floor in the
struggle, and Blanco picked it up, ‘‘gathered it,”’ as
she testified (R. 37), and carried it away with him.
Upon their arrival at the vessel Blanco took the ring
off his finger and handed it to the brother. Blanco
was not produced at the trial, his deposition was
taken, when he testified (R. 224, 225) that he never
had a ring, never saw a ring, and did not hand a
ring over on the above occasion, although three wit-
nesses produced in court testified that he did.
The brother, Ralph Vargas, testified (R. 111):
‘“‘A. Yes, he served-liquor there and I said, ‘I
thank you, I want’ you to come out for dinner to
my house,’ because I didn’t like to get anything
without paying for it.’’
The brother, and his wife were in complete ignor-
ance of the assault for some time after that, Miss
Vargas testifying she did not have the valor to tell
him as she was afraid it would shock him too much. |
(R. 39.) He testified that they had always been very _
strict in his family and she was afraid he would throw
her out. (R. 116.) She further testified (R. 74) that
she did not know she was in that condition until they
took her to a doctor (R. 38):
“A. No, I did not want to tell them, because
I did not want to cause a terrible impression,
because I had come especially recommended to
them in San Francisco.’
There were some exchanges of courtesies between
the brother and his wife and Blanco, but all the testi-
mony shows Miss Vargas had nothing to do with them.
The brother testified (R. 106) about going out to a
cafe:
“A. We took my sister along because we
could not leave her in the house by herseif.’’
The testimony shows that she never spoke to
Blanco at any of those times, and the visits between
Blanco and the Vargas family seem to have been con-
fined to two. (R. 73.)
In March, Miss Vargas had to tell someone of her
condition, and being afraid and ashamed to tell her
brother, she went to a friend of the family (R. 39): -
“T told Amaral I didn’t know what to do, that
I am in such a condition, that I would like to
leave this place and go somewhere else, because
I am afraid to shock my brother too much.”’
Shortly before that Miss Vargas complained about
not feeling well to her sister-in-law who took her to a
doctor. (R. 144.) When Miss Vargas came out of the
doctor’s room crying (R. 144), that was the first time
her sister-in-law knew anything about the matter;
_ her husband did not know then. (R. 146.)
SSS re Oe ee
14
Mrs. Vargas was afraid her husband would find
out about it, so she went to see Blanco and told him
her sister-indaw had told her what had happened to
her, and she wanted to know what he was going to
do about it because she was afraid her husband would
find out about it. He suggested getting a doctor for
a criminal operation, saying that he supposed it would
need money for that, that he had not any right then
but would be able to find some. She suggested marry-
ing respondent, as she was afraid her husband might
find out and do something rash. He then told her he
‘was married and had children. (R. 145, 146, 147.)
|
| Amaral, however, went and told her brother (R.
/130, 132, 133, 134) and asked him not to put her out
of his house. (R. 132.) And the brother told him to
‘take her to the United States authorities and make a
complaint, which was done, and Blanco was arrested.
The hearing was had before Commissioner Krull,
| and it seems they had a great deal of trouble about
getting an interpreter, they had three, none appears
| to have been able to interpret Spanish correctly. (R.
| 54, 92.) Commissioner Krull (R. 205):
“‘A. She could not speak English, and we had
quite a little time getting someone to interpret
and we finally called upon Mr. Grant, a bailiff of
the court, who talked Spanish, and he came in
and did the interpreting.”’
(R. 92):
**A. That it took considerable effort to make
myself understood literally with them when they
spoke to me.
°O. Could they talk good Spanish ?
A. No.” :
: ‘It appears that she'learned Blanco was a married
man for the first time at'the hearing before Commis-
sioner Krull. (R. 73.) Respondent testified as fol-
lows before Commissioner Krull (R. 69) :
“Q. Did you kiss him?
A. I resisted.
How did you resist ?
By trying to throw him off.
Did you hit him?
I could not, he held both my hands. ”’
* *
POPS
(R. 70):
“Q. And what did you do when he did that?
pie was helpless ; I couldn ’t do anything.
*
*
Q. Asa matter of fact, isn’t it the truth that
you didn’t fight with all the strength you had?
N lo, I resisted with all the strength Thad. .
* *
Q. Did ‘you scratch him at all or hit him?
A. No, I couldn’t do anything. He had both
of my hands and was lying on top of me, and I
was helpless.’’
(R. 71):
“Q. And what did you say?
A. I didn’t say anything; I was so completely
exhausted.”’
That is the only description of the attack there was
before Commissioner Krull, and seduction cannot be
made out of that. Blanco should have been held for
the Grand Jury, as that evidence shows nothing but
rape.
Defendant was represented there, Commissioner
Krull believed her story but thought the case was
duction. Blanco was there and made no denial, the
16
charge of rape was dismissed and a conversation held
in which it was agreed that Miss Vargas should go
down to the petitioner’s office next day and some
financial arrangement should be made on account of
her condition and that she should pursue her remedy
in the state court. (R. 202, 203, 204, 196, 197-201.)
Mr. Grant, then the bailiff of Judge Kerrigan’s, now
of Judge St. Sure’s court, testified in full on that and
that someone there gave him Mr. Shenick’s (appel-
lant’s port steward) card to give to Miss Vargas, so
that she would know where to go. (Libelant’s Ex-
hibit 1.)
Miss Vargas, accompanied by her brother and Mr.
Amaral, went down to both of appellant’s offices the
next day. Reaching the port steward’s office, Blanco
was called in; he there said he was sorry for what he
had done to Miss Vargas, was willing to pay the ex-
penses of her sickness and take care of the child, and
Mr. Shenick gave Mr. Amaral another of his, Mr.
Shenick’s cards, looked at the calendar and told him
to ring up on May 18th, the vessel would be back on
that day, for Amaral to call him over the ’phone and
bring those people down, and I will see that Joe gives
some money to her, and from then on would take care
of Miss Vargas and later on would take care of the
child. Blanco also said that ‘‘the child that was com-
ing was his, that he was sorry for what had happened
and would take care of her.’’ To have proceeded any
farther would have been compounding a felony.
The vessel went away; this case was commenced
about a week after the foregoing. The vessel returned —
and a day or so afterwards Blanco called up Mm. ;
Julian, the mother of Mrs. Vargas, on the phone,
went out to her house and talked to her quite a while
about the whole matter, told he that he was very
sorry, that he wanted to arrange everything amicably
with her because there was no need for any lawyers
nor any litigation; that he could pay the hospital
expenses; that if the child was a girl to give it the |
mother’s name, if a boy his name; that he was sorry
for what had occurred, because he was a married man,
but if Miss Vargas would wait he would get a divorce
and get married to her, but that he did not have any
ease or reason to get the divorce, ete. (R. 156, et
seq.)
Blanco was cross-examined twice and a foundation
was laid for impeachment on all ef the matters that
evidence was introduced on, and he denied everything,
contradicted the statement of Commissioner Krull,
Mr. Grant, and everyone else that testified for the
libelant, seven in all.
All we find to controvert the above mass of testi-
mony is (R. 211):
‘A. I never talked to Ernestina at all; just
pass there in saloon and salute me; just say ‘Good
morning.’
Q. At any time during the month of October,
1927, did you go into the room—stateroom 31—
while Ernestina was there?
A. No. I never seen her in the room.
Q. Did you at any time have any relations of
any kind with Ernestina?
A. No, sir.’’
He was cross-examined twice and a foundation was
_ laid for impeachment on all of the matters that evi-
me ;
dence was introduced on, and he denied everything,
contradicted the statement of Commissioner Krull,
Mr. Grant, and everyone else that testified for the
libelant, seven in all.
Mr. Shenick went on the stand and contradicted
Commissioner Krull, Mr. Krull’s records, Mr. Grant,
Mr. Amaral and Mr. Ralph Vargas.
A male child was born to Miss Vargas on the 19th
day of July, 1928, her labor pains commencing on the
18th; we assume that the labor pains are a part of
the birth of the child, and the 18th day of July, 1928,
was exactly 280 days after the 12th day of October,
1927, the average period of human gestation. It is
in evidence that the features of the child resemble
Blanco. (R. 45, 149.) Miss Vargas owes the doctor’s
bills, works as a seamstress and pays $25.00 per month
for the care of the child, and-$6.00 for milk. (R. 47.)
When the fact that she was with child became
noticeable, her brother and sister-in-law were forced
to send her to the country. (R. 42.)
*““A. I left here because even though no one
knows me, the friends of my brother who would
come there would make me feel ashamed that I
was in that condition.”’
Miss Vargas is of frail stature, Blanco is short and
very stout (R. 46) and weighs about 160 pounds. (R.
218.)
Blanco was before Commissioner Krull March 16,
1928, and made no denial. (R. 204.)
“‘Q. He never made any denial of this girl’s
charges ?
A. There was no denial.
19
Q. Blanco or Blanco Reyes was there?
A. He was present at the hearing.
Q. He never made any denial of this girl’s
charges ?
A. There was no denial.’’
The next day, March 16, 1928, the following oc-
eurred in one of petitioner’s offices (R. 117):
“Mr. Hurton. Q. What did Shenick tell you?
A. Shenick said that Blanco was—Blanco said
before that he was awfully sorry for what he
did to my sister, that he was able to help my
sister, that he was able to help my sister in any-
thing that it comes to, and he gave us a card, the
steward, that fellow gave us a card and told us
to come there, or call him up, and ‘Will you
come over to me and we will make some arrange-
ments.’
* * * * * * *
A. Blanco said he was awful sorry for what
he did.’’ (See R. 127, 128, 136, 137.)
The complete ignorance of the brother and sister-
in-law of the assault is shown by the fact that as soon
as he learned of the assault he told Mr. Amaral to
take her to the United States authorities. (R. 132.)
‘‘A. Yes, the brother told me to take her to
tae United States authorities, that she wanted to
make a complaint.”’
Upon going to counsel for petitioner’s office to
have his deposition taken Blanco’s front completely
changed, and both lower courts herein, the trial court
in effect and the Appellate Court directly (R. 298)
find he was guilty of false swearing, and on page 35
of petitioner’s brief, we find the following admis-
sions :
“We do not deny that this:steward is guilty
of false swearing.”
“He is a Filipino and from the testimony in
this case we think he lied to us.’’
Of course, that isan admission that he. told the
truth when he spoke to Mrs. Vargas, Mrs. Julian,
and to Mr. Vargas.and Mr. Amaral down in reti-
tioner’s office, at Pier 46 in San Francisco.
On the day of. the assault, Miss Vargas. spoke to
the steward and asked him to put someone in the
room with her, testifying that she did not want it to
happen again, that she was very much afraid. (R. 36.)
The steward testified (R. 269) that’ he knew enough
Spanish to talk to people on the ship and find out
their wants, respondent thought he-did not understand
her, but he must have done, as-that night Miss Villa-
vicencio went into the room about 9 or 9:30 p. m. (R.
172.) Miss Villavicencio was not in room 31 at the
time of the assault, her own testimony shows that
the vessel left La Libertad October 10th (R. 252),
Miss Villavicencio joined the vessel in Corrinto (R.
172), where the vessel left October 9th (R. 194), and
testified she slept in the second cabin for, two nights,
so according to her story she could not have gone
into room 31 prior to October 11th, but she says she
went there at La Libertad, the vessel’ had left La
Libertad and was:at San Jose de Guatemala on Octo-
ber 11th, having called at Acajutla-on the same day
(R: 252); she aso testified (R. 270) that it took
two and one half days to go from Corrinte to La —
Libertad, when in fact the steaming time was 13’ —
hours (R. 194); she also testified (R. 168) that she
went into room 31 between 5 and 6 in the afternoon
and on (R. 172) th-~. she went in at 9 or 9:30, when
she went to *_u.
She testified (R. 167, 172) that the vessel arrived
in San Francisco in November when the fact is she
arrived there on October 21st. (R. 252.)
The young lady’s testimony is such a mass of con-
tradictions and so contradictory to the facts, that
none of it is worth considering. But, she could have
heen assigned to room 31, and been absent on deck
or elsewhere about the vessel and this assault could
have happened.
The steward of the vessel as to when Miss Villaci-
eencio was put in room 31 (R. 271):
*‘A. It was either the night we left La Liber-
tad, or the next morning I would say; I am not
sure as to that.”’
The best that can be said for that is, that the
steward made a guess at the date, and was not sure
as to his guess.
All that Mr. Lorenzen knew about Miss Villavi-
cencio is based upon the following (R. 178):
“A. I believe, after I talked the matter over,
that she was a passenger from Corrinto, Nica-
ragua, to San Francisco, a steerage passenger.’’
That showed he had no independent knowledge on the
matter at all, and makes his whole testimony worth-
less, and as to Mr. Mallory, he was in San Francisco,
and his records would not have been admissible in
evidence if they had been produced; but they were
not even produced.
Blanco could not have entered the stateroom for
an hour after the door was unlocked.
As to not ringing thé bell when he came in, she
testified she did not think he came in with any bad
intention (R. 80), he almost immediately afterwards
took hold of her two hands and threw them up over
her shoulders and held them on the pillow, she could
not ring the bell then. (R. 33, 87, 88.)
She had nothing but a nightgown on. (R. 33.)
““As I was only in my nightgown, he finally
overcome /me.’
As to her going to breakfast after the attuck, the
following is what occurred:
(R. 76):
‘“‘A. Yes, I left at that hour to go to break-
fast, but I did not go to the dining-room, I re-
mained on deck because I could not stand up.”
(R. 93):
‘“‘A. All that I did was to walk from the door
that led to the deck, to the chair that was near
by—the deck chair was near by.
A. I remained seated in the deck chair during
the day and likewise the remainder of the days.”
The testimony on the wearing of the ring is as
follows (R. 84):
““Q. Where did the ring fall?
A. To the floor.
Q. He stole this ring?
A. He gathered it up.
Q. -And you saw him with the stolen ring
for all the rest of the voyage, wearing it?
A. I saw him wearing a ring on the hand, but
I didn’t know if that was the one.
Q. Didn’t you testify before the United States
Commissioner that that was the ring he was
wearing ?
A. No, I said that I did see him wearing a
ring, but I didn’t know whether that was the
ring; but that when I went with mv brother to
get the ring that that was the ring that he had
on.”’
Of course, it is obvious that if she had given the
ring to Blanco to keep for her, she would have asked
him for it before she left the ship to go to her
brother’s house, and would not have gone there with-
out it. She got her money from the purser before she
left the vessel. (R. 37.) The various presents men-
tioned on page 7 of petitioner’s brief, are as follows
(R. 112, 113):
Ralph Vargas noticed a pair of shoes on Blanco’s
feet ; the latter told him he got them in New York, and
Blanco asked his size and brought him a pair, and
he gave Blanco a cushion in return. Mrs. Vargas
asked him to bring her a parrot, but Blanco sent
her a canary bird instead that he wanted to give away
to somebody. Then Blanco placed an order for two
hats with Mr. Vargas to give to the firm the latter
worked for, saying he wanted them for two lady
friends of his; Mr. Vargas got the hats, took them
down to the boat with a charge of $15.00; Blanco
said he did not have the money then but would send
it from Los Angeles, but didn’t (R. 119, 120, 121);
and when Amaral respondent and Ralph Vargas went
down to the petitioner’s office pursuant to the arrange.
ments made in Commissioner Krull’s office, Amaral
demanded payment for the hats, and Blanco paid
the money after haggling about the price. (R. 128,
129.)
eee
II.
RESPONDENT'S ASSIGNMENT OF ERRORS.
(R. 291.)
The said lower court erred in not awarding appellee
a much larger sum than ten thousand ($10,000.00)
dollars for the wrong she sustained, as that amount
is not sufficient compensation for such wrong as shown
by the evidence herein, and it would require a much
larger sum than that to compensate her for such
wrong, and the record herein also shows that the ap-
pellant condoned the action of its second steward of
the vessel ‘‘Ecuador,” who committed the said wrong
upon appellee by treating the same lightly, not insist-
ing upon his prosecution for the erime he had com-
mitted, endeavoring to arrange for a compromise of
appellee’s wrong, and generally affording him aid and
comfort after he had violated the chastity of the ap-
pellee against her will, resistance and consent on board
of appellant’s vessel ‘“‘Ecuador.”’
Wherefore appellee prays that the award of dam-
ages to her herein may be largely increased.
25
TTT.
PETITIONER IS RESPONSIBLE IN DAMAGES
FOR THE ASSAULT.
Counsel for petitioner admitted that in both lower
courts; we however cite the following authorities:
New York Central Rd. Co. v. Mohiny, 252 U.
S. 150, 157-8. |
‘A carrier by rail is liable to a trespasser or
to a mere licensee willfully or wantonly injured
by its servants in charge of its train (Thomp-
son’s Commentaries on the Law of Negligence,
3307, 3308, and 3309, and the same sections in
White’s Supplement thereto) and a sound pub-
lie policy forbids that a less onerous rule should
be applied to a passenger injured when lawfully
upon one of its trains, this much of protection
was due plaintiff as a human being who intrusted
his safety to defendants keepmg. Southern Paci-
fic Co. v. Schuyler, 227, U. S. 601-613. It arose
from the faet that he was a human being of whose
safety the plaintiff in error had undertaken the
charge; with his consent he had placed his life
in its keeping. Missouri, Kans. & Texas Ry. Co.
v. Sealy, 248 U. S. 359-363.
His claim rests not upon eontract of carriage,
but upon the general right of a human being not
to be injured by the negligence of another * * *.”’
Steamboat Co. v. Brockett, 121 U. S. 637, 645.
“‘a common carrier is bound as far as practica-
ble to protect his passengers, while being con-
veyed, from violence committed by strangers and
co-passengers, and undertakes absolutely to pro-
tect them against the misconduct of its own ser-
vants engaged in executing the contract.’’
New York Central Ry. Co. v. Lockwood, 17
Wallace 357;
New Orleans & N. E. Ratlroad Co. v. Jopes,
142 U. S. 18, 20;
26
Kansas City, Southern Ry. Co. v. Willslie, 224
Fed. 908.
And the many cases cited therein.
We could cite many others.
ARGUMENT.
If this court will consider claimed errors in the
admission of testimony herein:
The testimony on page 12 of petitioner’s brief was
admissible on two grounds; one was to impeach
Blanco. He was cross-examined twice and a founda-
tion laid. (R. 218, 246.)
Another ground, petitioner itself placed Commis-
sioner Krull on the stand. (R. 201-206.) He testified
about an arrangement made before him by which
respondent was to go down to petitioner’s office
where some financial arrangment would be made.
(R. 203.) Miss Vargas went to two offices, at one, the
main office, with Mr. Amaral and her brother and
were told that Mr. Schnick at pier 46 had charge of
the case and directed them there. What occurred in
that office was the consummation of an arrangement
made in which respondent took part. Commissioner
Krull (R. 203):
‘‘A. Blanco was there, and there was someone
there that represented the steamship company.”
What occurred at pier 46 was a part of a transaction
that respondent was entitled to.
The evidence of Mrs. Julian, page 13 of brief, was
admissible for the purposes of impeachment.
Miss Vargas had already testified that she had
made no outcry, so it was entirely immaterial whether
if she had made one it could have been heard. (Brief,
13, 14.)
Petitioner’s argument about the rooms on the corri-
dor on which stateroom 31 was situated is specious.
All the evidence shows there was no one in the rooms.
Blanco, as second steward, certainly knew that, hence
saw that he would be unmolested in his attack.
Miss Vargas had a right to sit on deck, a great
many seasick people prefer the deck where there is
plenty of air to a stuffy stateroom.
About having absolute protection with the door
locked, we all of us undoubtedly unlock some door or
other every day of our lives. The lock was there to
be unlocked and people usually use them by unlocking
them.
In People v. Lawler, 79 Cal. App. 208, 209, a lock
matter came up and it seems that counsel for defend-
ant based some claim upon it. The court says:
“Because at one time in her testimony the
prosecutrix testified that she locked the door to
her room before she went to bed, and, in another
place in her testimony, she testified that about
midnight the defendant entered her room, the ap-
pellant argues that her story is inherently im-
probable. To state the argument is to answer it.
Perhaps the prosecutrix was mistaken when she
testified that she locked the door, there are many
other possible explanations that would square
with her story.’’
ET SSA
Respondent did not unlock her door about breakfast
time. Breakfast time on the vessel is 8 o’clock, testi-
mony of Hr. Henry, the steward. (R. 270.)
The comparison of respondent’s testimony on pages
20 and 21 of petitioner’s brief, is a misstatement of
the record.
It will be remembered that there was trouble about
interpreters, and upon interrogation before the
trial court (R. 61-67) she denied she had ever testified
as the petitioner’s brief states she did. Respondent
stating (R. 54) speaking of the interpreter:
‘‘But he did not know how to interpret Span-
ish correctly ?”’
(R. 92):
‘‘A, That it took considerable effort to make,
myself understood literally with them when they
spoke to me.”’
Counsel for respondent has never been satisfied with
the transcript of purported testimony taken before
Commissioner Krull. Miss Russell, who took it, testi-
fied (R. 51) that she had everything down that oc-
curred before Commissioner Krull, and the testimony
of Mr. Krull and Mr. Grant shows clearly she had
not. (R. 96-206.)
The following in italics on pages 23 of petitioncr’s
brief is absolutely incorrect.
‘‘A. Yes, I introduced him at that time, and
said that he had taken care of the ring for me.”
Miss Vargas (R. 72) testified squarely that she did
not say that. As immediately below the foregoing, —
upon being asked if she did not so testify before Com-
missioner Krull, she said:
“A, No. He presented himself to: my brother
and I told him he.is the man who has the ring.”’
A further misstatement of the record is shown on
page 26 of petitioner’s. brief, as follows:
“Q. And you gave the hats to Blanco?
A. Yes.”
Ralph Vargas gave them to him in the sense that
he handed them to him, as on pages (R. 119, 120,
121) he testified that when he gave them to Blanco
the charge was $15.00 and Blanco said he hadn’t the
money then but would send it to him.
The card on page 34.of petitioner’s brief is not in
evidence. All respondent knew about it was it came
to the house and she gave it to her brother. Her
counsel sought to use-it to impeach Blanco, but after
visiting. the Shipping:Commissioner’s office: and com-
paring Blanco’s signature on the shipping articles of
the ‘‘Ecuador’’ he concluded the writing was. not
Blanco’s, so dropped !it; but even if Blanco sent it it
would not bind respondent. It was simply marked
for identification. (R. 49.) .
The quotation from Jensen v. Lawrence, 94 Wash.
148, on page 51 of petitioner’s brief, is only half of
the instruction given; the defendant excepted to the
instruction. The: court held» he was: not harmed by
it and decided as follows in that case.
Jensen v. Lawrence, 94 Wash. 148 (syllabus) :
“The evidence in a civil action for an as-
sault and rape is not insufficient to sustain a
verdict from the fact that gees made no out-
ery, where she testified that she resisted and was
overcome by force and that there was intercourse
without her consent.
“Rape, Civil Liability, Evidence, Sufficiency,
In a civil action for rape the failure of the plain-
tiff to make an outcry or complaint within a
reasonable time, may be explained or excused
and it is merely a circumstance which the jury
may consider tending to impeach the plaintiff,
and not a defense as a matter of law.’’
The record in this case shows that respondent did
not have a thing to do with the intercourse between
Blaneo and her brother and sister-in-law, and that
she never spoke to him, and the following statement
on page 36 petitioner’s brief, referring to Blanco:
“But the fact that a Filpino waiter from whom
little can be expected in the way of integrity”
* *
promotes the inquiry why did petitioner employ him
and try to compromise the matter and keep him in its
employment right along. His duties were (R. 256)
Curt Zastrow, the master of the ‘‘Ecuador’’:
**Q. What are Blanco’s duties?
A. Looking out for the comfort of the pas-
sengers and boss the boys; see that they keep
their rooms and respective passengers’ quarters
clean.’’ (R. 261.)
‘*He has got to look out for the comfort of the
passengers. That means to say that he has got
- to see that everything in the staterooms is all
right before the passenger goes in.”’
Henry, steward of the ‘‘Ecuador’’ (R. 209):
‘“‘A. He is to keep the boys working cleaning _
the rooms and runs the dining room; sees that _
the boys give the passengers the service.’ ,
_ Blanco was clearly in a position to attack a de-
fenseless girl, as he knew all about the ship and had
all the boys working overhead as they were in the
habit of doing at that time of the morning. He knew
_ the coast was clear.
A ship manned with unreliable people is unsea-
worthy and Blanco was the company as far as the
passengers were concerned.
He is a married man with four children, and re-
spectable women unquestionably travel on petitioner’s
vessel ‘‘Ecuador’’; just how petitioner could continue
to bring them in contact with him after the knowl-
edge they obtained on March 16, 1928, has not been
explained.
The port steward told Amaral (R. 128):
‘‘You know, Mr. Amaral, these things are
known to me. This is not the first time that
things of this kind happen, and a man gets stuck
on a girl. I am very sorry.”’
And he told Blanco in effect that if he furnished
money out of his wages, he could continue to work
for the company.
If petitioner employs the class of people mentioned
on pages 35, 36 of its brief, what can it expect?
re
I¥ THE OUTRAGE IN THIS CASE WAS NOT RAPE,
WHAT COULD IT HAVE BEEN?
Respondent, a girl of good family, well brought up,
well educated, leaves her home and goes on board of
32
a vessel among total strangers. She does not speak
the language of the vessel. Says “‘I thank you” toa
man at the gangway, takes seasick as soon as she gets
on board; does’ not see that man again for about
38 hours. At 9 p.m. of the next day she goes down to
her room, is seasick all night, had eaten scarcely any-
thing from the time she came on board and must
have been weak and sick. She is assaulted and made
pregnant with child. Of course there had to be sex-
ual intercourse. She testified as to how it happened.
There is no other explanation of it. Can it even be
suspected that she sought that sexual intercourse? The
physical facts of the child’s birth are present, corrob-
orating her. The admissions of the second steward
and the actions of the company corroborate her. There
is nothing in the record against her character; the
unimpeached record shows that that is the only aet
of sexual intercourse that ever took place with her.
Two courts have passed upon the law and the facts,
and the following corroboration appears in the law
of nature. It is uncontradicted that the child was
conceived October 12, 1927.
Estate of McNamara, 181 Cal. 82, 89-90.
‘While the average period of gestation is gen-
erally taken as 280 days.”’
Collier’s New Encyclopaedia, Edition of 1928,
Vol. 4, page 305:
‘“‘GestaTION. In physiology, the act of carry-
ing young in the uteras from the time of concep-
tion to that of parturition, the average time of a
woman’s pregnancy is 9 solar months, or about
280 days, though it may be as few as 7 or as ~
many as 10. * * *”’ :
_ She commenced to have labor pains, which undoubt-
edly are a part of the birth of a child on July 18th,
280 days after October 12, 1927, and the only explana-
tion of the conception is that given by her and the
admissions of Blanco himself which he subsequently
denied making.
In
Wharton & Stille’s Medical Jurisprudence, Vol.
III, page 27,
we find
“If her intercourse has been confined to one
individual, there is no difficulty in drawing a cor-
rect conclusion from the premises. * * *
As a basis for that rule the period of gestation
is taken at 280 days.’’
On page 29 there is a computation of several hun-
dred cases from different doctors, that give an aver-
age of 269.7 days. Then a minimum duration given by
Auvard of 242 days, and a maximum given by Rossie
of 317 days, as follows:
Auvard, minimum 242 days
Rossie, maximum 317 days
Total 559 days
Mean 279.5 days
The child was conceived, and born, its conception
was according to the average, and there is nothing in
the record anywhere that points to anyone as being
its father but Blanco, and his paternity of the child
has never been disputed.
The trial court saw her physique, the frailty of her
. person and concluded from her manner of testifying
34
that a man short and stout, weighing 160 pounds
committed the offense of rape, the learned Circuit
Court of Appeals sustained the decree, so the facts
are established, and this court has held as follows:
Norton v. Larney, 266 U. 8. 511, 518.
“* * * The well-settled rule of this court is
that where two courts have reached the same con-
clusion upon a question of fact it will be accepted
here unless clearly erroneous. * * *”
Mills v. U. S., 164 U. 8. 644.
«“* * * Whether such threats were made or
whether in their absence she resisted to the extent
of her ability at the time and under the circum-
stances was a question for the jury. * * *”
If the case is tried before the court, the question is
one for the trial court.
The following testimony of the prosecution is un-
contradicted. What more could she have done?
(R. 34):
«“* * * because every time he would get up
close to me in the struggle he would kiss me.”’
(R. 69):
“Q. How did you resist?
A. By trying to throw him off.
. Did you hit him?
A. I could not; he held both my hands.”’
(R. 70):
‘““A. TI resisted with all the strengtn I had.
Q. Did you scratch him at all or hit him?
A. No, I eouldn’t do anything; he had both
of my hands and was lying on top of me and I
was helpless.”’
(R. 87):
‘“‘A. Well I moved my body and did every-
thing that was possible to loosen my hands. ‘y
35
Q. He had one of your hands in each of his
hands?
‘‘A. He grabbed my hand, and when I was
finally able to withdraw my hand, then after-
wards he grabbed my hand here (pointing toward
the sacrum) and I managed, then, in my struggle,
I was able to get to the edge of the bed.
Q. Did you strike him in the face, or scratch
him ?
A. I did not have the chance, because my
hands were held.
A. Yes, he did hold my two hands, but not
with his two hands. It was one hand (pointing
with her arm) at first he took her jeft arm and
then took her right arm, and thrust it toward her
shoulder and held it against her body. As he was
very heavy (taking the interpreter’s left hand)
he held it at an angle, in about such a position
(off the interpreter’s breast) ; with one hand thus
he would hold me, and the part of the body he
would hold with his arm.
A. He had both hands most all the time, ex-
cept for one moment he withdrew a hand, but I
don’t know whether it was for the purpose of
lowering his pants or not, but that was the only
wt when both of his hands did not hold my two
ands.”’
(R. 90):
‘‘A. Almost on the edge of the bed. My legs
were up, and then taking her two hands, and
holding them over her thus, beyond the edge of
the bed. Then, again (illustrating) placing her
hands about six inches above her knees, from this
part upwards, that part of the body upwards, and
this part over the edge of the bed.”’
(R. 91):
‘“A. One of his legs budged my legs apart and
got in the center.”’
(R. 71):
“A. I didn’t say anything; I was so com-
pletely exhausted.”’
On (R. 45) respondent testified in effect that the
bedclothing was almost clean, but that she was almost
on the edge of the bed, but that Blanco’s clothing was
stained. And on page 91 that Blanco threw her night-
gown up, and she could not tell whether there was any
blood on the sheets as they were all bundled up, but
that when she put her drawers on she stained them
with blood.
R. v. William Crocker, 17 English Criminal
Appeals, (1922) 46.
Lord Chief Justice Darling:
“The jury had the opportunity of seeing and
hearing the witness, and there are persons—espe-
cially young persons, who somehow are able to
convey the fact that the story they tell is true,
and here, after the learned judge’s warnings, the
jury came to the conclusion that the girl’s story
was true and ought to be acted upon.
The Court considers that it would be a new de-
parture if it allowed this appeal, as it cannot
usurp the functions of the jury.”
(Syllabus) :
“‘On the trial of a sexual offense against a fe-
male her evidence need not necessarily in law be
corroborated.’’
People v. Slaughter, 33 Cal. Appellate 365, 381.
“Tt is true that her testimony should be clear
and convincing, but it is for the jury and the
trial judge to determine whether it fulfills that
requirement.”’
People v. Jones, 76 Cal. App. 144, 148.
37
j “Tt is well settled that one may be convicted
of rape upon the uncorroborated testimony of the
prosecutrix, if the jury believes her story.”’
People v. Mazzurco, 49 Id. 275, 276;
Lindville v. Green, 125 Mo. App. 290;
People v. Valencia, 85 Cal. App. 306.
Where the case is tried before a judge, the rule is
the same.
The City of New York, 54 Fed. 181.
“The demeanor of the witness is a material and
important part of the evidence, which cannot be
sent up with the record; and, because this ts so,
the rule prevails in appeals in admiralty that the
opinion of the trial judge will not be disturbed
upon questions of fact, depending upon the credi-
bility of witnesses who were examined im his
presence, unless there is a decided preponderance
of evidence the other way.’
But in this case respondent is overwhelmingly cor-
roborated by the testimony of witness and the laws of
nature.
VL.
THE LAW OF CRIMINAL AND CIVIL RAPE.
Counsel contends that because there was no outcry
or complaint until the prosecutrix was compelled
to tell someone by reason of her condition, that she is
not entitled to recover, neither of those matters were
ever inflicted as a penalty, and are always subject to
explanation.
It is proper to say at this time that no two persons
male or female will ever act alike in emergencies, and
no rule of conduct can ever be made that will fit tt
human natures, if there was any such hard and fast
rules, it would be the duty of the law to establish
training schools to educate women in what to do when
criminally attacked so that they could all act alike,
and in this case such a school would have been neces-
sary on the ‘‘Ecuador.”’
Criminal rape is an act of sexual intercourse with
a female not the wife of the perpetrator, where she
resists, but her resistance is overcome by force or
violence.
There is nothing anywhere in the definition of rape
that requires her to make an outcry. In the case of
robbery one person may call out and another may be
too terrified to do so, as with all violence to the per-
son, and as the Supreme Court of the State of Cali-
fornia, properly said in
People v. Kuches, 120 Cal. 566, 569.
‘(State v. Cone, 8 Jones 18): One person
would be paralyzed by fear and rendered voice-
less and helpless by circumstances which would
only inspire another with higher courage and
greater strength of will to resist an assault.”
The uniform rule at this time is that outery or no
outery, the question is one for the jury or the trial
court, and if either believe her, her uncorroborated
evidence is sufficient to sustain a verdict of guilty ina
criminal case.
Respondent cites the case of Olsen v. State, ll
Nebraska 276, and quotes:
‘‘Nature had given-her hands and feet with —
which she could kick and strike, teeth to bite, and —
39
a voice to cry out; all these should have been put
in requisition in defense of her chastity.”’
That case was decided in 1881, in the subsequent
civil rape case of Kramer v. Weigand, 91 Neb. 47, 51,
decided in 1912. The same court draws a distinction
between civil and criminal rape, and says:
‘‘When confronted under such circumstances
by a sudden, unexpected assault and seized by a
fear of being discovered, a virtuous woman, be-
fore making an outcry, might trust to her powers
of resistance until it was too late, and even con-
ceal the outrage in the hope of escaping ex-
posure.”’
And also cites People v. Dohring, 59 N. Y. 374, where
the court says:
“Of course, the phrase, ‘the utmost resistance,’
is a relative one; and the resistance may be more
violent and prolonged by one woman than an-
other, or in one act of attending physical circum-
stances than another. In one case a woman may
be surprised at the onset and her mouth stopped
so that she cannot cry out, or her arms pinioned
so that she cannot use them, or her body so
pressed upon that she cannot struggle.’’
The uncontradicted evidence is that respondent’s
arms were held, her body pressed upon and she was
continually being kissed, and that 20 men waiters
were scrubbing the deck of the saloon immediately
above her head, polishing brass and generally clean-
ing up the saloon and that there is always a lot of
noise at that time in the morning, all those things
must be t “:en into consideration, they operated on her
mind, she says they did, and she was necessarily weak
40
from the lack of food and seasickness, in other words
she was not a normal woman.
_ As to complaints, or present discovery, in the case
of
Commonwealth v. Cleary, 172 Mass. 175, 176,
Judge, now Justice Holmes, wrote the following com-
mon sense view of that:
“The rule that in trials for rape the govern-
ment may or must prove that the woman con-
cerned made complaint soon after the commission
of the offense is a perverted survival of the
ancient requirement that she should make hue
and. ery as a preliminary to bringing her appeal.
Tf it means what it has been taken to mean, that
the government can prove fresh complaint as part
of its original case, it cannot be justified by the
principles of evidence which now prevail. In
general, you cannot corroborate the testimony of
a witness by proof that he has said the same
thing before when not under oath.”
No woman wants to tell to the world that she is no,
longer a good girl, particularly strangers, and the law
does not require that she shall tell strangers or anyone
else. As to strangers, in the following case cited by
petitioner: a
People v. O’Sullivan, 104 N. Y. 481.
We find on pages 489-490:
‘‘But there may be circumstances which will ex-
euse delay as when the prosecutrix * * .
among strangers.”’
Miss Vargas was among strangers, and she natu-
rally thought (R. 81):
41
‘A, I did not compiain to any of them in the
first place, because they did not speak Spanish,
and, in the second place, because they might con-
sider me a woman of bad repute or conduct.”’
(R. 72):
“T decided to suffer my disgrace alone,
without telling anybody.”’
Those are the answers of a modest woman.
State v. Peters, 8 Jones N. Car. 19, 22.
‘‘But it is nowhere held that this female in-
stinet is so strong and unerring as to have been
made the foundation of a rule of law, as dis-
tinguished from a rule in respect to evidence and
the weight to which it is entitled, which is a
matter for the jury.”’
Lindville v. Green, 125 Mo. App. 290:
‘‘but we know of no case where the testimony of
the prosecuting witness has been rejected solely
on this ground, * * .* it must be remembered
that plaintiff had no mother nor any other woman
sufficiently close in her confidence and friendship
in whom to confide.’’ (306.)
‘‘Winding as we do, that her conduct was not
necessarily inconsistent with the natural im-
pulses of feminine modesty and virtue.”’
Kramer v. Weigand, 91 Neb. 50.
‘“‘In her testimony she explained that she did
not think to make an outcry, and that she was
ashamed to tell what had taken place.” _
Respondent is not the only woman that did not like
‘to tell people of her trouble.
State v. Miller, 191 Mo. 612.
“They seem to indicate that an outcry is a
necessary essential part of the proof of this of-
42
il
fense, whereas the failure of an outcry is simply
a fact tending to discredit the good faith of the
charge, a circumstance only of more or less
weight, depending upon the surrounding circum-
stances. A failure to make it raises no presump-
tion of law that the prosecutrix has sworn falsely;
it is a circumstance to be weighed by the jury.
(State v. Machis, 240 Mo. 650, 1. e., 668, 662, and
so also the delay in making the complaint.”’
People v. Horn, 25 Cal. App. 583.
**(Syllabus) In a prosecution for rape it was
proper for the court to reject an instruction of-
fered by the defendant, which, if given, would
have impressed upon the jury the importance of
the absence of proof that the prosecutrix made
complaint of the assault immediately after it oc-
curred, as such an instruction would tend to
create the impression that a conviction of the
crime of rape could not legally be justified where
there was not proof of immediate discovery of
some third party by the prosecutrix of the fact
of the assault upon her person, which is not re-
quired by the law.’’
(588) :
“The fact that the prosecutrix in a case of rape
might have made complaint of the assault to a
third person immediately after it took place may
be shown for the purpose of corroboration only.”
People v. Martinez, 59 Cal. App. 121.
‘*As we have stated, the fact of defendant’s
guilt did not depend upon corroboration of her.
testimony, and fact that she a female under six-
teen years of age, made no outcry but concealed
from others the knowledge of the act was not
material to the inquiry, provided, the jury upon
sufficient evidence was satisfied that he was guilty
of the act charged.”’
43
Garvik v. The Burlington Cedar Rapids Ry.
etc., 131 Iowa, 415, 418.
‘‘While the ordinary female who has been
ravished will make the fact known to her family
or friends at the very earliest possible moment,
complaint is not always made and we have re-
peatedly held that conviction in criminal cases
panes ad rape is proper though no complaint is
made.
People v. Norrington, 55 Cal. App. 103, 108,
109.
‘Though the absence of stich outcries may
have a tendency to refute the hypothesis of guilt,
it is by no means conclusive. While, from the
nature of the crime, it may be expected in such
cases that the utmost reluctance would be mani-
fested, and the utmost resistance made which the
circumstances of the case will allow, still, to hold,
as a matter of law, that such manifestations and
resistance are essential to the existence of the
crime, so that it could not be committed if they
were wanting, would be going further than any
well considered case in criminal law has hither-
to gone. (State v. Pilegge, 61 Wash. 264.)’’
Baccio v. The People, 41 N. Y. 265.
“that it is so natural as to be almost inevitable,
that a female upon whom the crime has been com-
mitted will make immediate complaint thereof
to her mother, or other confidential friend.”’
Miss Vargas had no mother, and no friend on
board, and Blanco had told her that if she told any-
one they would not pay any attention to her, she had
a right to think on that that the whole crew were as
bad as he was, as to the passengers, she testified (R.
81):
. 44
c# * * because they might consider me a woman
of ill repute and bad conduct.
(R. 82):
A. I did not have any confidence in her, she
was not any friend, other than an acquaintance, a
mere acquaintance on board.”
Counsel admit the Fillipino waiters were bad.
VIL.
THE LAW OF CIVIL RAPE.
Jensen v. Lawrence, 94 Wash., supra;
6 American Law Reports, Annotated, 1011
(syllabus).
‘“Where an assault is accomplished by lascivious
conduct by her assailant, and he improperly
handles the wronged female, or indulges in undue
or indecent familiarity with her person, it con-
stitutes at least an indecent assault, and if the
intention is to secure carnal knowledge of the
female, it will constitute assault with intent to
commit rape, and where actually accomplished by
ravishment; it will constitute rape, providing the
a does not consent to the acts complained
‘0 ds
“This doctrine finds support in the following
cases which involve an assault with one of the
characters complained of.’
The footnote contains a list of authorities from a
great many states of the Union.
Totten v. Totten, 172 Mich. 565, 575:
“The court in its charge clearly and correctly
defined assault and battery and rape, then stated
that in this civil ease: ‘The mere fact that she
did not resist to the utmost would not excuse the —
45
defendant from his unlawful acts, if you find he
had intercourse with her against her consent.’’
The charge was held correct; authorities cited.
In the case of
People v. Bonzani, 24 Cal. App. 549,
the court says on page 558, when discussing the crime
of criminal rape:
“‘Men often become demons on such occasions
or while attempting an outrage by force upon the
opposite sex.”’
Of course, any one is entitled to damages for any
kind of an assault the aggravated character thereof
simply increasing the amount of the recovery.
33 Cyc. 1521:
“‘But conduct of plaintiff short of consent is
no justification, and if force was used to over-
come the resistance of plaintiff and she finally
consented to intercourse, although not in conse-
quence of the violence, defendant is still liable in
damages for the assault.’’
Palmer v. Baum, 123 Ill. App. 584.
In that case the parties had been drinking together,
and the court stated the law to be as follows, on page
587 :
‘‘The penetration of the person of the woman
without her consent, although no considerable
force is shown to have been exercised, it amounted
in law to an assault; such an assault being clearly
unlawful, foree may be implied. The mere fact
that the woman may have permitted appellant to,
and did herself, indulge in such lascivious conduct
is to almost amount to an invitation to him to do
as he did, did not in law authorize or license him
to penetrate her person without her knowledge or
consent.”’
46
Civil rape is necessarily an aggravated assault and
battery, and the courts uniformly hold that lack of
consent to penetration is all that is necessary to sus-
tain a conviction.
VIII.
PETITIONER’S AUTHORITIES.
They are from nine states in the Union, all of con-
siderable age, and the court rendering the decisions
has either modified the language or said something
else in about all of them.
In this case there is no conflict of evidence now, and
respondent is overwhelmingly corroborated. There are
some special facts in each case cited by petitioner, as
follows:
People v. Benson, 6 Cal. 221, 223.
The Supreme Court of California distinguishes that
case in People v. Moore, 155 Cal. 237, saying, refer-
ring to People v. Benson, on page 240:
“In several subsequent cases the language of
that part of the opinion in the Benson case in
which the weakness and inconsistency of the evi-
dence is commented upon has been adopted as a
ground of decision. But they were cases in which.
the prosecuting witness was uncorroborated as to
the assault, and where circumstances inconsistent
with her testimony were clearly proved. * * *”
People v. Benson is also commented upon by the
District Court of Appeal in
People v. Norrington, 55 Cal. App. 103, 109,
where the court says that it and other cases were re- _
viewed by the Supreme Court in People v. Moore,
and
“They have no application where, as here, all
the outward facts are clearly established.’’
The conviction was sustained in People v. Dohring,
59 N. Y. S. 374, and we have already quoted from that
decision.
We have also heretofore quoted from
People v. O’Sullivan, 104 N. Y. 481.
In that case the prosecutrix claimed she had been
assaulted by a Catholic priest, in whose house she was
housekeeper, she remained in the house, went to con-
fessional, and made no complaint for eleven months.
In Lind v. Closs, 88 Cal. 6, the resistance, if any,
was equivocal, and the defendant admitted a great
deal of what the prosecutrix testified to, claiming con-
sent; she, however, told so many conflicting and im-
probable stories that the verdict was set aside.
See
Kramer v. Weigand, supra.
In Oleson v. State, 11 Neb. 276, the case was re-
versed for errors in admission of testimony; whatever
else appears was therefore dictum.
Connors v. State, 47 Wis. 523, was reversed for
errors in instructions, and there was strong evidence
in favor of defendant.
Whittaker v. State, 50 Wis. 518, was reversed for
improper instructions.
One of those cases was decided in 1880, and one
prior thereto. In the subsequent case of
McLain v. State, 159 Wis. 204,
48
decided in 1914, which is also a later case than Brown
v. State, 125 Wis., largely relied upon in petitioner’s
brief, the same court says:
‘Tt must be remembered that the term ‘utmost
resistance’ is a relative rather than a positive
term. What would be ‘utmost resistance’ on the
part of a weak, nervous person with a tempera-
mental and easily frightened disposition, might
be the veriest sham on the part of a robust person
in cz health whose nerves and courage are nor-
ma Rd
Counsel for petitioner seems to misunderstand.
State v. Cowing, 99 Minn. 123 (Syllabus) :
“In a prosecution for rape, resistance of the
female is of necessity an issue only as it is in-
voked in the proof of her want of consent, which
is always require.. To show unwillingness her
resistance must be proportionate to the occasion
under the circumstances and at the time of the
act complained of; in many cases there must be
resistance to her utmost, or at least to the extent
of her ability. In peculiar cases a less degree may
be sufficient. In exceptional cases, rape may be
made out without any proof of resistance.”’
Same court, Wiltska v. Moudray, 83 Minn. 73, 81:
“The defendants further request, after point-
ing out in a proper manner the evidentiary force
of silence by plaintiff, and her failure to denounce
the perpetrator of the assault afterwards, de-
strovs the value of such suggestions by the quali-
fying — that such failure to make an outcry,
or to denounce her assailant, creates a presump-
tion against her. The instruction in that regard
went too far.”’
In State v. Barnes, 140 Minn. 519, the court held
that the whole question was one for the trial court or _
jury.
Champagne v. Hamey, 189 Mo. 709, presents a sin-
gular state of facts. Hamey was convicted of rape, in
a criminal case, the Appellate Court sustained the
conviction, but reversed a judgment for damages —
presumably upon the same evidence. But in that case
the families lived within 90 feet of one another, and
the girl made no complaint of force for about a year
and until after a child was born.
State v. Kinney, 44 Conn. 153.
Is contrary to all the decisions, as it holds that the
details of an extrajudicial statement can be given in
evidence.
The case was decided in 1876, and the court says
(p. 156):
“‘We are aware that the decision in this case
goes farther than the courts have gone in Eng-
land and in most of the states in this country.”’
In 1908 the same court says in State v. Sebastian,
81 Conn. 1, 6:
“* * * and proof has been admitted of com-
plaints made many months after the time when,
as the complainant declared, the rape took place.”’
On the quotation from Blackstone, he, Blackstone
(Cooley’s Blackstone, 1374), takes up the original rule
established many years before. Parliament fixed forty
days as the time in which a complaint could be made,
then abolished it and fixed no time at all, as the writer
adds ‘‘for the reason that time does not run against
the king.’’ At that time England probably had about
two or three million people, was largely rural, every-
one knew everyone else in the vicinity, and the previ-
ous reputation of a girl was well known, so that that
alone was at hand to know whether the complaint wag
well founded or not, a complainant was not among
strangers, not in a new environment, and the condi-
tions were entirely different to that of a young person
going on board of a modern steamship.
Blackstone divides women up into two classes, writ-
ing of those of good and those of bad fame, and what
appears on page 43 of petitioner’s brief relates to
women of bad fame, and even then he writes that it
is but a question of credibility, as follows:
“These and the like circumstances carry a
strong but not conclusive presumption that her
testimony is false or feigned.”’
That language shows that the credibility of the
prosecutrix is a question for the trial tribunal.
In Mills v. United States, this court refused to pass
upon the facts, except comment on the improbability
of the story of the complaining witness. The court
cites Sec. 1122 of Bishop on Crimmmal Law. In the
last, 9th ed., published in 1923, we find the following
in that section, speaking of the authorities:
‘“‘The stronger ones just quoted might not be
very objectionable in a barbarous age, but in our
age, to compel a frail woman, or girl of fourteen,
to abandon her reason, and measure all her
strength with a robust man, knowing that the
effect will be to make her present deplorable con-
dition the more wretched, yet, not to preserve her
virtue, on pain of being otherwise deemed a pros-
titute instead of the victim of an outrage, is ask-
ing too much of virtue and giving too much to
vice. The text of the law, we have seen, and, it
is believed, the better judicial doctrine requires
only that the case shall be one in which the wo
man did not consent. Her resistance, however,
must not be a mere pretense, but in good faith.
51
IX.
THE COURT ERRED IN NOT AWARDING A LARGER
f SUM AS DAMAGES.
The award was $10,000.00. That amount put out at
bank interest would produce but $425.00 per annum.
Miss Vargas has to pay her lawyer, so she will not net
that amount. It is costing her $25.00 per month for
care of her child brought into the world against
will, and $6.00 for milk, a total of $31.00 per
month, or $372.00 per year, without clothes or other
necessaries.
In the case of
Campbell v. Pullman Palace Car Co., 42 %'ed.
484,
heretofore cited herein, the court charged the jury,
on the question of damages, that she was entitled to
recover for detriment to her health and strength by
the wrong done her, including pain and suffering,
mental and physical. An award of $11,000.00 was
made and the case was afterwards affirmed by this
court. In that case the facts showed no sexual inter-
course, no force, and money was worth much more
than it is now.
McGhee v. McCarley, 103 Fed. 55.
In the following case money was of much greater
purchasing power at that time and the jury gave an
award of $25,000.00, and the facts in that case were
not nearly as bad as they are in this.
Marshall v. Taylor, 98 Cal. 55.
The Supreme Court says on that subject on pages
62, 63:
““We are not prepared to say that the damages
are excessive, Courts are not dis to make
smooth the ways of the seducer. At common law
in these cases, verdicts of juries were seldom held
to be excessive, and this, too, where the parent
recovered damages upon the fiction of loss of
service. With much greater reason should we not
disturb the amount of a verdict where the party
directly injured is the party plaintiff. Through
the seducer’s arts a young girl has been outlawed
from society; she has been cast upon the world,
robbed of her innocence; and injury has been
done which nothing can repair; a loss has been
suffered which nothing can alleviate.’’
In that case a child was born, but the evidence was
sharply conflicting.
Corporations are liable in exemplary damages in
cases like this, and exemplary damages are the rule in
such eases.
See 33 Cyc. 1521.
The ability of defendant to pay is shown by the
fact that it is capitalized for $1,500,000.00.
We do not think appellant is entitled to any sym-
pathy in this case. Its Port Steward was present at
| the hearing before Commissioner Krull, and it was
' there determined that Miss Vargas was entitled to
redress. The whole actions of appellant since have
been a ratification of what he did, but the young lady,
who was entitled to safe carriage, as her relatives paid
for it, has never received the coldest consideration
from appellant.
Respectable women travel on the ocean. The fol-
lowing shows that appellant does not seem to think
that is of much consequence (R. 126), which is a part
of the conversation between Mr. Schenick, appellant’s
Port Steward, Amaral, and Mr. and Miss Vargas:
“‘He said, addressing Joe, ‘You know that you
can’t work for this company unless you take good
care of this girl and the child that is coming that
is yours.’ ””
Blanco was still kept in appellant’s employ.
We respectfully submit, that respondent’s case is
overwhelmingly established, that the claims about out-
cries and complaints are but matters that no longer
are considered of any importance, except when the
testimony of the prosecutrix stands alone, and is weak,
and then only for corroboration, and that the ecor-
roboration of respondent in this case is so overwhelm-
ing that they are unimportant.
The defense in the case seems to be as follows:
1. That if the crime of rape is committed and the
woman attacked makes no outery or subsequent com-
plaint the crime of rape is not committed even though
she is overwhelmingly corroborated.
2. That Commissioner Krull did not think the
crime was rape. What difference does that make?
Two courts charged with passing all of the facts have
held that it was, and the testimony before him shows
he made a mistake.
3. The innuendo that Miss Vargas unlocked the
door of her stateroom to allow Blanco to enter. The
uncontradicted proof herein is that they never talked
together.
4. That Miss Villavicencio had been assigned to
stateroom 31 while the vessel was in La Libertad.
54
The testimony shows that she was not assigned until
the evening after the attack. But if she had been
assigned, this attack could have been made while she
was absent from the room.
As to the ring, Miss Vargas left money with the
purser, and had it returned before she left the vessel,
If she had wished safekeeping for the ring she would
have given that to the purser also, and if she had
given it to Blanco she would have got it back again
when she left the vessel, as she did her money, and
not made another trip down there with her brother
and sister-in-law to get it.
We respectfully submit that her case shows an
atrocious assault, is overwhelmingly established and
that she is entitled to larger damages.
Dated, San Francisco,
April 7, 1930.
Respectfully submitted,
H. W. Horton,
Attorney for Respondent.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.