People v. Troutman

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

[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, 20 Cal. App. 48 , [ 127 Pac. 1048 ]; Stout v. State, 22 Tex. App. 339 , [ 3 S. W. 231 ].) It will be unnecessary to prolong a discussion of this phase of the case, for, apart from what we have said, we are satisfied that the case is adequately dealt with in so far as the sufficiency of the evidence is concerned and correctly decided from every point of view by the district court of appeal in the opinion of Mr. Presiding Justice Langdon, which we quote and adopt as follows:

“This is an appeal by the defendant from a judgment of conviction of violation of section 288 of the Penal Code. A motion for a new trial was denied, from which order an appeal is also taken.

“A discussion of the facts does not seem to us necessary, and in view of the nature of the testimony, detailed consid- - eration of the evidence will not be made in this opinion. It is sufficient to say that the evidence has been read with

[2] ‘ Objection is made by appellant that no crime is charged in the information against the defendant, because section 288 of the Penal Code is unconstitutional upon the ground that it is vague, ambiguous, indefinite, and uncertain. The specific objection to the section is that the language, ‘Any person who shall willfully and lewdly commit any lewd or lascivious act other than the acts constituting other crimes provided for in part two of this code,’ etc., is unintelligible in that ‘Part Two’ of the code referred to relates solely to criminal procedure and does not describe acts constituting other crimes. This precise objection was considered in the ease of People v. Bradford, 1 Cal. App. 42 , [ 81 Pac. 712 ], where the court said that it was evident that either by legislative oversight or by clerical misprision the words ‘Part

[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 288 against ‘a child under the age of fourteen years.’ Then the question of the defendant’s knowledge of right and wrong would be important. It would be a question of fact, and the disputable presumption regarding the responsibility of infants between the ages of seven and fourteen years for crimes might be rebutted by the evidence. But the gist of the offense under section 288 is the crime against a ‘child under the age of fourteen years,’ and in the present case, the prosecuting witness, even if it were overwhelmingly proved that he had full knowledge of right and wrong and that he had innumerable vicious and criminal tendencies himself, and that he had suggested to the defendant (a man of thirty-eight years of age) the commission of the act charged against said defendant, yet he would not be guilty of an offense under sec

[4] “ Section 1111 of the Penal Code, while requiring the testimony of an accomplice to be corroborated in order to sustain a conviction, expressly defines an accomplice as ‘one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. ’ However, in addition to the foregoing reasons, it has been expressly decided in this state, in the case of People v. Raich, 26 Cal. App. 286 , [ 146 Pac. 907 ], that there is no statute or other rule of law which calls for the corroboration of the testimony of a complaining witness in a case of this character. Also, in the case of People v. Thourwald (Cal. App.), 189 Pac. 124 , it is said, in considering a conviction under this same section: ‘Upon her testimony [the prosecutrix] alone a verdict of conviction may securely rest, ’ and it is then pointed out that no corroboration is required in cases of rape, and that the same rule applies to cases under section 288 of the Penal Code. Furthermore, there is some corroboration of the boy’s testimony in the letters appearing in the record which were written to him by the defendant from time to time. The appellant contends that under certain cases in this state, such corroborating evidence is insufficient. But be that as it may in a case where corroboration is required—under the ruling in the cases of People v. Raich and People v. Thourwald, supra, corroboration of the testimony of the prosecuting witness is unnecessary in a case like the present one, and, therefore, we are not concerned with whether or not the possible inference which the jury might draw from the letters would have sufficiently corroborated the boy’s story.

[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 288 of the Penal Code, nevertheless,

[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 thq 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

“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 1404 of the Penal Code provides that ‘neither a, departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor any error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in

“Furthermore, it appears from the record that defendant exercised only nine of his peremptory challenges, thus leav-, ing 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 ease of People v. Schafer, 161 Cal. 573 , [ 119 Pac. 920 ], that the disallowance of a challenge for cause on the ground of actual bias, interposed to a juror who was subsequently peremptorily challenged, will not be reviewed on appeal for error, where the record, while it shows that the defendant exhausted his ten peremptory challenges, including the one used on such juror, fails to show that he had occasion or desire to use an additional peremptory challenge, or that each and all of the twelve jurors finally accepted and sworn were not entirely satisfactory to him. The reason for the rule announced in the last cited case, and the full discussion of the subject therein, apply with equal force in the present ease. The defendant having expressly stated that the jury was satisfactory to him, and having one of his peremptory challenges unexercised at the time the jury was accepted, his objection here is without merit.

“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.