Majority
This is an appeal by the People from an order dismissing an information against William G. Bernstein, who is a licensed and practicing physician and surgeon.
He was accused by information of two counts of contributing to the delinquency of certain minors (Welf. & Inst. Code, § 702), in that he, on two dates certain, wilfully, unlawfully and knowingly 11 did live with Mrs. Beverly Enns as husband and wife” in the presence of the two minor children which conduct “caused and manifestly tended to cause and encourage . . . [the minor children] ... to come within the provisions of Section 700 of the Welfare and Institutions Code of the State of California, to-wit: To become or remain minor
At the preliminary hearing the divorced husband of Mrs. Finns testified that he had seen a ear, later identified as Dr. Bernstein’s, near Mrs. Enns’ home on the two nights specified in the information and probably a “half dozen” “to eight times” “in the past year.” A police officer testified that he had identified Dr. Bernstein’s ear as the one which was parked near Mrs. Enns’ home on the night of March 4, 1958, and that Dr. Bernstein left in the car between 11 and 11:30 and that he talked “to him for approximately 20 minutes”; that Mrs. Enns and the two children were at home at the time.
The only other witness for the People was Mrs. Enns’ 8-year-old son Michael. Michael testified that he knew Dr. Bernstein ; that he called him “Doe”; that Dr. Bernstein had come to his home “pretty often”; that he came to the house “Sometimes ... in the day and sometimes he comes in the night and morning”; that he could hear Dr. Bernstein come in “and then talk to my mother, and then I don’t hear them do anything else. Just talk.” He testified that he didn’t think Dr. Bernstein ever stayed all night. Michael further testified that there were two bedrooms in the house, one of which was occupied by his mother and one by his sister, aged 6, and himself.
Michael also testified that “just once” he had seen Dr. Bernstein on his way to take a shower one morning and that he was dressed “in his panties, and his T-shirt and [that] his shoes [were] on”; that it was “long ago”; that Dr. Bernstein came from his mother’s bedroom; that his mother was either in the bedroom or the kitchen and that she was dressed in her pajamas and robe. He also testified that once when he had come in from play in the afternoon about 4 o’clock he had passed his mother’s bedroom, the door of which was open about a foot, and that he had seen his mother and Dr. Bernstein on the bed; that they were “just laying there”; that his mother had a headache; that he didn’t know whether the lights were on or off but he thought they were on; that he had seen Dr. Bernstein in his mother’s room “quite a few times” but only once on the bed. He also testified that once Dr. Bernstein had given his mother some money to buy Christmas toys.
After reading a transcript of the evidence and hearing oral
* The complaint against Mrs. Bnns was dismissed after the information against Dr. Bernstein was set aside.
The People contend that the trial court cannot usurp the function of the committing magistrate by substituting its judgment as to the weight of the evidence as long as there is some evidence in support of the information; and that a reasonable suspicion from the evidence that a crime has been committed coupled with a reasonable suspicion that the defendant committed the crime is sufficient to hold him to answer.
The crime with which we are here concerned is contributing to the delinquency of a minor child; we are not concerned with the conduct of Dr. Bernstein and Mrs. Enns except insofar as the effect it might tend to have on the minor children involved. The test is the reasonable effect the charged acts have upon children, not what conclusions can be drawn therefrom by adults (People v. Miller, 145 Cal.App.2d 473 , 477 [ 302 P.2d 603 ]). It should also be remembered that it is the defendant’s conduct in the presence of the children that is the gist of the action. A good statement of the rule is found in the concurring opinion of Mr. Chief Justice Angellotti in People v. Bergotini, 172 Cal. 717 , 723, 724 [ 158 P. 198 ], where he said: “It is entirely fair and permissible to construe it [the statute] as referring exclusively to acts or omissions done or made directly with relation to the minor child. No case has been cited, and I have been able to find none, involving any other kind of an act of omission. For instance, one willfully commits lascivious acts in the presence of a child capable of comprehension, or toward such a child; or has immoral relations with a child; or does with relation to the child any of the very numerous things that may directly cause, tend to cause, or contribute to, its dependency. Such acts or omissions are clearly within the scope of the statute. But something done solely with relation to somebody else, in no way directly affecting the child, may not fairly be held within its scope. And it can make no difference in this connection whether the thing so done is immoral, as in the case at bar, or absolutely free from blame.”
Taking all the evidence as true together with all the inferences to be drawn therefrom, it appears as a matter of law that the only conduct committed in the presence of the 8-year-old child consisted of Dr. Bernstein’s presence in the home, his being on the bed with the child’s mother when the lights
There is no merit to the People’s argument that the trial court substituted its judgment for that of the committing magistrate. It is the duty of the trial court when, in its judgment, there is, as a matter of law, no evidence which tends to prove the offense charged in the information, to set it aside.
There is no merit to the People’s argument that if the information “inadequately” described the acts of Dr. Bernstein and Mrs. Enns, the trial court should have “permitted amendment” rather than dismissing the information. In this connection the People rely upon section 1009 of the Penal Code which provides in part that an amended complaint “may be filed” by the prosecuting attorney without leave of court or that the court “may order or permit an amendment” of an information. It is apparently the People’s position that if the information was insuffiieent, it was the duty of the court to order the prosecuting attorney to amend it even though no effort was made on behalf of the People to do so. But we are not here concerned with the problem of whether the information states a public offense, but whether the evidence presented at the preliminary examination is suffi
The order appealed from is affirmed.
Gibson, C. J., Shenk, J., Traynor, J., Schauer, J., Spence, J., and Me Comb, J., concurred.
Cases cited
- People v. Miller 145 Cal.App.2d 473 at 477 p. 658
- People v. Bergotini 172 Cal. 717 at 723, 724 p. 658
- People v. Mitchell 148 Cal.App.2d 733 at 734 p. 659
- People v. Deibert 117 Cal.App.2d 410 at 419 p. 659