201 P. 928 | Cal. | 1921
The order granting a rehearing of this case was prompted by the earnest and persuasive petition for a rehearing after decision by the district court of appeal. Here, as in the court of appeal, a reversal was sought primarily upon the contention that the evidence adduced in support of the people's case was so inherently improbable as to be unworthy of belief, and, therefore, insufficient to support the jury's verdict of guilty. Accordingly, we have, in addition to giving due consideration to the remaining *315 points made in support of the appeal, painstakingly reviewed and considered in every detail the evidence adduced upon the whole case, with the result that we are constrained to hold, as did the district court of appeal, that the evidence is sufficient to support the verdict and judgment.
[1] Conceding, as is contended, that at the time of the commission of the crime charged the physical condition of the boy, not necessary to be detailed here, upon whose person the crime charged was found by the jury to have been committed by the defendant, who was so diseased as to be abhorrent and, therefore, was calculated to repulse, rather than arouse, the unnatural lascivious desires even of an extremely morally degenerate man, nevertheless we are not satisfied that the evidence upon which the conviction was had is so inherently improbable as to be altogether unworthy of belief. While the testimony of the complaining witness concerning the details of the commission of the crime is so out of the ordinary in its revelation of revolting details as to be startling in the extreme and difficult to believe, still it cannot be held to be unbelievable merely because it reveals an exceptional depth of moral degeneracy. To so hold would be "purely a speculative attempt to sound the depths of human depravity and assign arbitrary rules beyond which desire and passion are held to be incapable of seducing or impelling human nature." (People v. Von Perhacs,
"This is an appeal by the defendant from a judgment of conviction of violation of section
"A discussion of the facts does not seem to us necessary, and in view of the nature of the testimony, detailed consideration of the evidence will not be made in this opinion. It is sufficient to say that the evidence has been read with *316 care and that we cannot agree with the appellant that the testimony of the boy against whom the crime is alleged to have been committed presents such inherent improbabilities as to entitle it to no credence as a matter of law, and thus leave the record with no legal evidence to sustain the conviction. It is, of course, true that all offenses under this section, by their very abnormality, are improbable measured by the standard of the normal; but the observation and experience of any court handling criminal records demonstrates that many such cases do occur, and their facts are, therefore, not inherently improbable, as that phrase is used in the law. As to the especially revolting facts in this case in connection with the alleged acts, which are urged by appellant as making the testimony of the boy unbelievable and inconceivable, it is sufficient to observe that once a man slips away from normal, once he enters the uncharted region of abnormality, the details and depths of degradation which his actions will show can no longer be measured. For the normal man, we have a standard from human experience; but for the abnormal, there are no rules of conduct. The argument of inherent improbability was doubtless made to the jury, where it was a proper one, but these men and women believed the testimony of the boy, and even under the unusual conditions shown by the evidence did not find the facts unbelievable. We cannot, therefore, as a matter of law, say that the revolting conditions surrounding the abnormal acts in this case render the commission of them by the defendant inherently improbable.
[2.] "Objection is made by appellant that no crime is charged in the information against the defendant, because section
[3] "Appellant makes various objections to instructions given and refused by the trial court. His main objection is that the evidence shows the prosecuting witness to be an accomplice, regardless of his age, because of his intelligence, education, and understanding of moral questions, and that the refusal of the court to leave the question of whether or not the boy was an accomplice to the jury, and to instruct the jury that if they so found, his testimony would require corroboration to sustain a conviction, was prejudicial error. Much argument is indulged in by the appellant regarding the law relating to accomplices, and the responsibility of minors for crimes, etc. We are of the opinion that none of the rules discussed governing these matters are applicable to a case such as the present one. The inquiry here is not at all as to the guilt or moral responsibility of the child, and under the section of the code under which the conviction here was had, the minor is guilty of no legal offense, regardless of his mental capacity or moral insight and regardless of his acquiescence. A different situation might exist if the defendant here was of the age of thirteen years and charged with any act included in section
[4] "Section
[5] "A somewhat different, though a closely related, proposition to the one just discussed is involved in the further contention of counsel that testimony of the boy relating to the commission of similar acts by the defendant subsequent to the act charged, and after October 30th, when the boy became fourteen years of age, was improperly admitted to show the disposition of the defendant to commit the act charged. It is appellant's contention that even though it be held that the boy was not an accomplice while he was under the age of fourteen years and while he came within the scope of section
[6] "Reference has been made herein to certain letters written by the defendant to the prosecuting witness. These letters were introduced in evidence, and appellant contends that the jury should have been instructed specifically that they must give the letters an innocent construction for the reason that the mother of the boy saw these letters as they were received by him, and gave to them an entirely innocent construction. We do not see how the jury could be bound by the construction given to the letters by the mother before she was in possession of the information given by her son's testimony. The letters are not isolated from all other facts when being construed by the jury; they are interpreted in the light of all the other testimony in the case. It is perfectly clear from the record that when the mother was informed by her son of the alleged acts, she no longer gave to the letters of the defendant an innocent construction, but that, thereupon, such letters became exceedingly significant to her. We see no error in the action of the trial court in permitting the letters to go to the jury.
[7] "Complaint is made of the following instruction: 'Testimony has been introduced by the prosecution tending to prove other acts of lewd and lascivious conduct of the defendant toward Herbert Cramer, prior to and subsequent to the acts relied upon for conviction. This evidence is introduced for the purpose of proving the lewd and lascivious disposition and tendency of the defendant to commit the lewd and lascivious acts. This evidence is not introduced to prove distinct offenses but is corroborative evidence tending to support the one specific offense for which the defendant is being tried.' Appellant contends that this instruction *320
positively asserts the existence of a fact, i. e., that the proof of similar offenses is corroborative of the main charge. Practically the same instruction was approved in the case ofPeople v. Gasser,
"Numerous objections are made with reference to other instructions of the trial court. It can serve no useful purpose to consider, specifically, each of these. The instructions as a whole must be read together, and after such reading, we are convinced that no error prejudicial to the defendant was made. Under the instructions, taken as a whole, his rights were fully protected. The simple fact is that the jury believed the story of the boy and did not believe the story of the defendant. There is no other direct evidence upon the charge. We do not think it can be said that the evidence was such that reasonable men could not have reached the conclusion arrived at in this case.
[8] "It is further urged by the appellant that error was committed in selecting the jury in this case, and that the trial court should have required the district attorney to exercise his peremptory challenge before the defendant was called upon to exercise his challenge. The district attorney was permitted to pass his peremptory challenge on several occasions, and after passing his challenge more than five times, was permitted to exercise one peremptory challenge. Appellant contends that this is a violation of section 1088 of the Penal Code, which provides that 'first the people and then the defendant shall take a peremptory challenge.' Section
"Furthermore, it appears from the record that defendant exercised only nine of his peremptory challenges, thus leaving one unexercised. The state exercised only one such challenge. The record shows that after these challenges were exercised the attorney for the defendant stated: 'We are satisfied,' whereupon the district attorney stated: 'So are we.' It appears, therefore, that the defendant had an additional challenge unexercised which he did not desire to use because the jury as constituted was satisfactory to him. Under such circumstances, he cannot complain here of any irregularity, if irregularity there was, in allowing his peremptory challenge to the people. It was held in Baird v. Duane, 1 Cal. Unrep. 492, that error in refusing to allow a challenge for cause is not prejudicial if the party, although forced thereby to use a peremptory challenge, has a peremptory challenge to spare when the jury is completed. It was held in the case of People v.Schafer,
"We find no errors in the record which would warrant a reversal of this judgment under all the facts in evidence, and the same is affirmed."
Wilbur, J., Shurtleff, J., Lawlor, J., Angellotti, C. J., Sloane, J., and Shaw, J., concurred. *322