97 P. 912 | Cal. Ct. App. | 1908
The defendant was convicted of the crime of "committing a lewd and lascivious act upon and with the body of a child under the age of fourteen years," and was thereupon sentenced by the court to serve a term of ten years in the state penitentiary.
The testimony discloses that the person upon whom the offense is charged to have been committed is the minor daughter of the accused. The evidence also shows that the alleged crime was perpetrated a trifle over a year prior to the making of the order by the magistrate holding the defendant to trial, and that at that time the child with whom the alleged act was committed was nine years of age.
1. The defendant moved to set aside the information filed against him in the superior court by the district attorney on the ground that before the filing of the same he "had not been legally committed by a magistrate." The bill of exceptions shows that said motion was made on the complaint filed before the magistrate and upon which the warrant for the arrest of the accused was issued, the order of commitment and two affidavits made by the defendant. One of these affidavits alleges that Orra Gregory, who swore to the complaint before the magistrate charging the defendant with the crime for which he was committed and of which he was informed against by the district attorney, was, at the time said complaint was so sworn to, the wife of the accused. The other, presumably offered as a basis for a motion for a continuance of the preliminary hearing, set forth that the accused was too ill to intelligently and understandingly proceed with said examination at the time the same was called and heard.
It is obvious that if the magistrate, before making the order committing the accused and before taking any testimony in support of the charge, had been informed in a proper manner of the alleged fact that the party swearing to the complaint was, when said complaint was sworn to, the wife of the defendant, his plain duty under the law would have been to dismiss said complaint, it not appearing that the depositions of any other witnesses were taken by the magistrate before the issuance of the warrant. (Pen. Code, sec. 1322.) But we think the question presented is not reviewable on a motion to set aside the information. The information is not based on the deposition or complaint upon which the warrant was issued, *741
but upon the commitment. In the case of the People v. Lee Look,
The case of Ex parte Dimmig,
2. There is no merit in the contention of appellant that the offense for which he was committed was not properly designated or described in the commitment. The order committing the defendant, in part, is as follows: "It appearing to me that the offense of committing a lewd and lascivious act upon the body of a child under the age of fourteen years has been committed," etc. Thus, and by reference to section
3. The point urged by counsel for appellant in his brief that the court below should have granted an alleged motion by defendant that he be discharged on the ground that he had not been brought to trial within sixty days after the filing of the information cannot be reviewed, for the reason that said motion and the proceedings thereon are not authenticated in a bill of exceptions. (People v. Ruiz,
4. After the jury had been selected and sworn to try the case, and before the taking of testimony was begun, the assistant district attorney suggested that, owing to the revolting nature of the offense with which the defendant was charged, there would necessarily be introduced testimony disclosing the disgusting acts constituting the crime of which the defendant was accused, and that, therefore, the courtroom should be cleared of all spectators. The defendant's *743 counsel objected to such an order, and the judge thereupon said that if he had the power he would take great pleasure in excluding all persons from the courtroom during the trial, but that the court had no such power, and to do so would be error. The judge then concluded as follows: "I deem it proper to say, however, that there will be nothing testified to in this case, in my judgment, that any right-minded person would desire to hear, and while I can't order anybody from the courtroom, I certainly make the statement for their benefit, and leave it to them to do as they please." To this statement the defendant took an exception.
In his oral argument and in his brief counsel for the defendant urges that the injury resulting to the defendant from the court's remarks lay in the fact that the entire audience left the courtroom immediately after the remarks by the court, and that the effect of the court's statement was to deprive the defendant of his constitutional right to a public trial. The objection and exception to the court's statement upon that ground cannot be of any avail to the defendant. The court did not order the spectators to leave and remain from the courtroom during the trial, but explicitly declared that it had no power to do so. When the spectators withdrew from the room they certainly must have done so with a full understanding, from the remarks of the court, that they were not compelled under the law or the ruling of the court to retire. Whether they did or not, it is very plain that an order excluding spectators was not made by the court, and that if the defendant was deprived of the high constitutional privilege of having the public listen to the witnesses detail facts and circumstances tending to prove against him the commission of acts, the offensive and noxious odors from which would drive a pole-cat into bankruptcy, it was due less to the remarks of the court than to the commendable sense of decency with which the citizens of Red Bluff comported themselves with reference to the trial.
5. The defendant insists that the court erred in permitting, over his objection, the witness Mary Gregory, aged ten years, to testify, the specific contention being that she was, by reason of her age, an incompetent witness under the provisions of section 1880 of the Code of Civil Procedure. That section declares that "children under ten years of age, who appear incapable of receiving just impressions of the facts respecting *744
which they are examined, or of relating them truly," cannot be witnesses. It appears that the witness at the time the offense is alleged to have been perpetrated was under the age of ten years, and it is therefore claimed that, notwithstanding the fact that when she was called as a witness at the trial she was over the age of ten years, she was nevertheless a witness of the class referred to in said section 1880 There appears to be some force in that contention, yet, under the terms of the section, it was for the court to determine whether she was incompetent as a witness for the reasons therein mentioned. "The burden is upon the person who objects to the child being a witness, to show that he is incapable, and the determination of the judge upon such objection, and examination of the child, is not a matter for review any more than is his ruling upon the capacity of an adult who may be offered as a witness." (People v. Craig,
6. We do not think that the court below abused its discretion in allowing certain leading questions to be put to the prosecutrix, who was, as seen, a mere child. The witness was no doubt without previous experience as a witness, except such experience as she acquired on the occasion of the preliminary examination, and was undoubtedly unfamiliar with court proceedings. In reply to a question by the district attorney not leading in form, the prosecutrix first stated: "Well, papa told mama he was feeling bad, and he told her to go water the mules, and when he sent Alvin [her brother] down to the turkey's nest to get the eggs and caught ahold of my arm and dragged me around the corner of the house." What occurred thereafter was brought out by questions of rather a leading character. But, considering the age and sex of the witness and the revolting circumstances to which she was required to testify, we can readily understand that it would have been with great difficulty that the facts and details of defendant's monstrous act could have otherwise been intelligently brought out. The examination of a witness in the trial of a case or the manner of such examination, particularly as to the form of the questions, is a matter committed to the *745
sound discretion of the trial judge, who must determine whether or not leading questions should be allowed in the examination of a particular witness from all the circumstances present and under his immediate observation. It is only where it clearly appears that the court has abused its discretion in the allowance of questions leading or suggestive in the form in which they are propounded that this court would be authorized to interfere by reviewing the objections and exceptions to such questions. (Moran v. Abbey,
7. The defendant, having been sworn and testified in his own behalf, was asked, on cross-examination by the district attorney, whether he had not "on several occasions endeavored to excite the passions of that little girl." The court sustained an objection to the question, saying that it was not proper to prove such misconduct. Counsel for defendant thereupon took an exception to the question and assigned it as prejudicial misconduct on the part of the district attorney. We do not know but that the question was proper and within the principles announced in People v. Castro,
8. It is contended that the judgment is void because, while it recites that the defendant was convicted of the "crime of committing a lewd and lascivious act upon and with the body of a child under the age of fourteen years," it does not declare the intent with which such act was done. It is not necessary to describe the offense in the judgment, as the contention of counsel necessarily assumes, with the technical precision and nicety required in its statement in an information, and if the crime is referred to in the judgment under its generic designation, it is sufficient. "A recital in the judgment that the defendant was found guilty of the offense of gaming at tan as charged in the information is equivalent to the recital that the defendant was found guilty of gaming at tan by carrying on and conducting the same for money or its equivalent." (Syllabus, People v. Sam Lung,
The instructions embody a fair and correct statement of the law bearing upon the charge and the proven facts, and, while the testimony upon which a conviction was had is in *747 the main from the lips of the prosecutrix alone, it is sufficient to support the verdict.
Finding no prejudicial error in the record, the judgment and order are affirmed.
Chipman, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 2, 1908.