217 P. 121 | Cal. Ct. App. | 1923
Appellant was convicted of the infamous crime against nature and he appeals from the judgment and the order denying his motion for a new trial. [1] The victim of the assault was a boy of the age of nine years and his story as recited on the witness-stand discloses every fact material to a conviction. We cannot say that his testimony is inherently improbable or that the jury was not justified in according it full credit. It would do no good to set out the testimony or to comment further upon it, and while it is true that there was a sharp conflict in the evidence, the case was properly one for the jury to determine, and we have no right to substitute our judgment for theirs as to the facts.
[2] There was no error in giving the following instruction: "Any sexual penetration, however slight, is sufficient to complete the crime against nature. Evidence of emission is not necessary." The criticism of appellant is directed particularly to the last sentence in said instruction. The first sentence is in the exact language of section 287 of the Penal Code and is a part of the definition of the crime. It must be read in connection with the preceding section and as thus construed it reveals all the elements sufficient to constitute the crime and necessarily removes by implication from the prosecution the burden of proving the circumstance mentioned in the concluding portion of the instruction. In People v. Hodgkin,
[3] The court did not err in instructing the jury that "it is not necessary for the prosecution to prove the commission of the offense on that date (December 6, 1922), but proof of its commission at any time on or about that date and within three years of the filing of the information is sufficient." There was no evidence or claim of more than *453
one offense and hence the authorities cited by appellant are not in point. In People v. Williams,
People v. Elgar,
Appellant complains of instruction No. 7 as to reasonable doubt. He says that a similar instruction was criticised by this court in People v. Del Cerro,
[4] The court instructed the jury that it was for them to determine whether the complaining witness was an accomplice, but appellant contends that the court virtually withdrew the question from the jury by giving this instruction: "In the absence of clear proof that at the time of committing the act constituting the crime he knew its wrongfulness, a child under the age of fourteen years is presumed incapable of committing a crime, and cannot therefore be deemed an accomplice." The only comment upon the instruction by appellant is as follows: "While this instruction follows section
We think appellant has misconstrued said instruction. If the court had unqualifiedly instructed them that the prosecuting witness could not be deemed an accomplice, the criticism would be just as there would have been a clear invasion of the province of the jury. But the instruction must be considered as a whole, and while not very happily *454
expressed, the reasonable construction is that unless clearly shown that the prosecuting witness understood the wrongfulness of the act, where he is under the age of fourteen years, the presumption is that he is incapable of committing a crime and therefore cannot be an accomplice in its commission. Manifestly, if incapable of committing it, he cannot be an accomplice. To say, therefore, that in the absence of such proof he is presumed to be incapable of committing crime is tantamount to saying that he is presumed not to be an accomplice. It still left it for the jury to determine whether this presumption was overcome by the evidence. We do not understand appellant as questioning the competency of the legislature to prescribe such rule of evidence as is presented in said section
[5] Appellant next complains of the refusal of the court to give his proposed instruction: "I instruct you that evidence of good character is evidence relevant to the question of guilty or not guilty, and is to be considered by you in connection with the other facts and circumstances in the case. . . . The good character of the defendant, when proven, is itself a fact in the case; it is a circumstance tending, in a greater or less degree, to establish his innocence; and it is not to be put aside by the jury in order to ascertain if the other facts and circumstances considered in themselves do not establish his guilt beyond a reasonable doubt."
The rule itself is well established (People v. Ashe,
[7] It is claimed that "the court erred in refusing to permit the defendant to show the interest and ill feeling of the father of the boy toward the defendant. It appears that the complaint was sworn to by the boy's father and it was proper for the defendant to show that the complaining witness was biased and prejudiced against defendant. (People v. Bird,
[8] Another objection of appellant is that "the court erred in permitting the mother of the boy to state the details of the boy's complaint." She was asked, "What did Lloyd say to you at the time?" and she answered: "He complained all the time of running off at the bowels, he couldn't hold passages, and I asked him what was the matter, 'Did you get hurt?' and he said 'yes,' one of the children at school kicked him. And on Friday evening he came home from school and looked awful pale and crying and went to the toilet and I went out and asked him what was the matter and said, 'I will have to take you to the doctor to-night," and he cried and told me Carter Singh did this, that Carter Singh "corn-holed him." There was no motion to strike out any portion of the answer, although a general objection was made to the question.
In People v. Barney,
In People v. Figueroa,
But herein the boy had previously testified on direct examination in response to a proper question that he had made complaint to his mother. In the cross-examination in an effort to discredit his testimony appellant required him to state just what he had said to his mother. He did so in the language which we have already quoted from his mother's testimony. Under such circumstances it was probably permissible, according to the authorities, to allow the mother to confirm what he had said. At any rate, in view of the boy's testimony it is reasonable to hold that the error, if any, was without prejudice. It is almost inconceivable, indeed, that if the mother had simply stated that he complained of his treatment by the defendant, that the verdict would have been different. The effect upon the jury would have been the same.
We have given careful attention to the earnest contention of appellant that he has been grievously wronged by the action of the jury and the trial judge, but we cannot assume the responsibility that belongs to them.
Finding substantial evidence to support the verdict and judgment and believing that no prejudicial error was committed we must leave the conclusion undisturbed.
The judgment and order are affirmed.
Finch, P. J., and Hart, 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 August 6, 1923. *457