People v. O'Bryan

Defendant was found guilty by a jury of the crime of attempt to commit incest and sentenced to San Quentin state prison. He appeals from the judgment and from an order denying his motion'for a new trial.

One John Wilemon testified that, armed with a revolver, he had secreted himself in a bedroom closet at the home of defendant’s daughter Anna, a married woman, referred to occasionally hereinafter as Mrs. N-; that he entered the closet upon his observing the defendant come up the walk toward the front porch of Mrs. N-’s home about 7 o’clock of the evening of August 17, 1932, while he and Mrs. N-were alone in the house, Mrs. N-’s husband having gone to work a few hours previously; that shortly after defendant’s arrival at Mrs. N-’s house, this witness surprised him in the act of attempting to have sexual intercourse with Mrs. N-, his own daughter, against her objection, the witness describing in detail the position in which he found the defendant and Mrs. N- on the bed as he opened the closet door, the revolver grasped in his right hand. The defendant claimed in his testimony that he was the victim of a “frame-up’.’, that his intention in going to the bedroom with his daughter was at her request to examine the wound left in her side by a recent operation, which the daughter complained had not been a complete success, the defendant having had some experience with wounds and operations during a period of twelve to fourteen years while serving as a nurse or orderly in the hospital at Soldiers’ Home, Sawtelle. Defendant testified that his daughter, after he had visited her that same afternoon,

Wilemon testified over strenuous and repeated objections that after leaving O’Bryan’s home, he drove the daughter to the police station and that the daughter there complained to Officer Whitehead concerning her treatment at the hands of defendant. The record reads as follows:

“Q. By Mr. Ferguson (Deputy Dist. Atty.): You testified that you came out to the car from O’Bryan’s home and found Mrs. N- at the car? A. Yes, sir. Q. Did you go anywhere with Mrs. N- at that time? Mr. Dalzell: Just a minute; to that we object as incompetent, irrelevant and immaterial. This is after the offense alleged and anything that is done by Mr. Wilemon or Mr. N- (undoubtedly this should be Mrs. N-) outside of the presence of the defendant is absolutely immaterial, has nothing to do with any of the issues in this case. The Court: Let me have the question and answer again. (Question and answer read by the reporter.) The Court: Objection overruled. Q. By Mr. Ferguson: Did you, Mr. Wilemon? A. I went to the police station in Sawtelle. Q. Directly from O’Bryan’s home? A. Yes, sir. Q. About what time did you arrive at the police station? Mr. Dalzell: May it be understood, your Honor, we are making the same objection to all these questions? The Court: Yes. A. Around 11 o’clock; it was something like that. Mr. Ferguson: May the answer be repeated by the reporter? (Answer read by the reporter.) Q. That station, you say, was the West Los Angeles Police Station? A. Yes, sir. Q. Upon arrival there, who did you see? A. I asked for an officer, and I think—

Q. Just who did you see, Mr. Wilemon ? A. I seen Mr. Whitehead and Mr. Davis. Q. This is Mr. Whitehead, the man to whom you refer? A. That is one of the gentlemen, yes. Q. Now, did you and Anna N- talk to those two officers at that time? Mr. Dalzell: The same objection, your Honor. A. She did. The Court: The same ruling. Q. By Mr. Ferguson: At that time and place did Anna N-make a complaint to Mr. Whitehead and Mr. Davis, the two officers you have mentioned? Mr. Dalzell: Just a minute. We object to that— The Court: You may answer that ‘yes’ or ‘no’. Mr. Dalzell: Just a minute. A. Yes. Mr. Dalzell: I wish to assign counsel’s asking of the question as misconduct. The Court: Objection overruled. Q. By Mr. Ferguson: Was that complaint concerning lewd and lascivious conduct upon her committed by the defendant O’Bryan? Mr. Dalzell: To that we object as incompetent, irrelevant and immaterial, and an attempt to get hearsay into the record by an indirect method. The Court: You may answer the question ‘yes’ or ‘no’. Objection overruled. A. Yes. Mr. Dalzell: We assign the asking of the question as misconduct. The Court: You may proceed. Q. By Mr. Ferguson: How long did you and Anna N- remain at the police station? A. Until about 1 o’clock, I should judge. Something like that. Q. That would be 1 o’clock on the morning of the 18th? A. In the morning, yes. Q. Do you recall now the day of the week the 17th was on? A. The best I can remember it was on a Thursday.”

Officer Whitehead’s testimony on direct examination was as follows: ‘‘By Mr. Ferguson: Q. Mr. Whitehead, you are a Detective Lieutenant of the Los Angeles City Police Force, are you not? A. I am. Q. On the 17th day of August of this year, where were you working? A. At West Los Angeles Division. Q. Where is the station of that division located? A. Located at 1653 Perdue Avenue, West Los Angeles. Q. On the night of August 17th of this year did you see a person who has been described at this case as Anna N-^—? A. I did. Q. Where were you when you first saw her? A. In the police station. Q. Was that the first time, to your knowledge, that you had ever seen the woman? A. Yes, sir. Q. What time did you say that was about? A. Approximately 10:30 p. m. Q. Was there any

Wilemon was permitted to testify, over defendant’s objection, to a conversation between defendant and his daughter in the early morning of August 8th, after the defendant had spent the night at the home of his daughter, occupying the bedroom in which he was apprehended ten days later. Wilemon testified that during the preceding night he and the daughter had occupied the living-room of the house, he sleeping on a duofold and Mrs. N.- on a day bed. As to this testimony the record reads as follows:

‘ ‘ Q. By Mr. Ferguson: Did you have any discussion with O’Bryan concerning him staying there that night? A. Yes, I offered to take him home. Q. And what did he say? A. He first said that he would let me take him home, and then he backed out; he wouldn’t go. Q. Did he say anything else? A. He said he would go to bed back there, and he did, went to bed in Mrs. N--’s bedroom. Q. What bed did he occupy ? A. The bed in the back bedroom. Q. That is the same bedroom, of course, that you have previously testified about 1 A. Yes, sir, it is. Q. Did you hear any conversation between O’Bryan and Mrs. N-- the night of the 7th? Mr. Dalzell: I object to that as incompetent, irrelevant and immaterial, and that it cannot have any bearing on any issue in this ease. Mr. Ferguson: I think that it will have, your Honor. I would be glad to state my purpose if we may approach the bench. The Court: I think you had better. I do not see the point at the present time. (The following proceedings were had at the Judge’s bench, out of hearing of the jury): Mr. Ferguson: 1 expect the

witness to testify in response to the pending question that on the night of the 7th, the defendant in this case offered Anna N- $90.00 to go back in the bedroom with him, and perhaps additions to that, which additions are matters which would suggest a proffered act of sexual intercourse. Mr. Dalzell: I object to that, Mr. Ferguson. The witness could hear what you were saying. The Court: Perhaps we should be more careful and not make any further offers of proof up at the bench. Mr. Ferguson: Well, I suggest that your Honor ask the witness if he heard what I said, and if he did, I will withdraw the question. The Court: Did you hear any part of what we were discussing, Mr. Wilemon? The Witness: I was not paying any attention to you, Judge, at all. Mr. Dalzell: I insist upon my objection. The Court: The objection is overruled. (The following proceedings were had in the presence and hearing of the jury) : Mr. Ferguson: Will you read the question, Mr. Reporter? (Question read by the reporter as follows: ‘Q. Did you hear any conversation between O’Bryan and Mrs. N—— the night of the 7th?’) A. Well, I heard a conversation about 6 o’clock in the morning. I didn’t hear any during the night. Q. Would that be the morning of the 8th? A. Yes, it would be the morning of the 8th. Q. Where were you when you heard that conversation ? A. I was laying on the duofold. Q. Where was Anna N-? A. She was over by the kitchen door, the best I remember. I wouldn’t say positively she was by the kitchen door, but she was there in the room. Q. And could you tell where the defendant O’Bryan was? A. He was in the front room. I was laying with my face to the wall, and my back towards where they were at. Q. How close were they together, that is, O’Bryan and Anna N--, at that time? A. I didn’t see them; I just heard them talk. Q. And what did you hear on that occasion? A. I heard him tell her that he had $90.00 for her if she would have come back when he called that night. He said, ‘You know when I called you back I had $90.00 for you if you come back there, but I guess you were afraid of your cowboy friend. ’ ”

Wilemon had previously testified that he was a rodeo entertainer, and presumably could be classed as a cowboy, although that had not been his sole occupation. After Wilemon had given the testimony last quoted, he was asked

Appellant claims on this appeal that all the quoted testimony relative, first, to the complaint, second, to the conversation of August 8th, was improperly admitted. We proceed, therefore, immediately to a discussion of this contention. We think it may be fairly stated as the general rule that evidence as to the complaints of an outraged woman may be admitted only as corroborating or sustaining her testimony, and that when she does not appear as a witness, even the fact that she made complaint, however recently after the injury, is not admissible. There is an exception to this rule in the case of a child too young to testify, the courts holding that testimony as to the complaint in such ease and under certain circumstances may be given by the person to whom complaint is made. (People v. Figueroa, 134 Cal. 159 , 162 [ 66 Pac. 202 ]; People v. Bianchino, 5 Cal. App. 633 , 636 [ 91 Pac. 112 ].) We know of no other exception. Whether the alleged victim of the assault in this case would have testified that she made complaint to the police officers we shall never know, because she died before the case first came to trial. Having in mind the fact that testimony of a complaint made as soon as possible after an attack is admissible in the case of an adult victim of rape to demonstrate the fact that the act was committed against her will, and knowing that instead of making an immediate complaint the woman alleged to have been injured

As in the Avila case, where evidence over defendant’s objection was adduced from the officer who arrested defendant, we must say here that the court in ruling that such evidence was admissible committed prejudicial error. As to the testimony given by Wilemon over objections of the defendant, regarding a conversation which he says he overheard between defendant and Mrs. N- on the morning of August 8th, we feel that it was improperly admitted. Conversation is not a crime, nor is it an attempt to commit a crime. To constitute an attempt there must be an act

We are familiar with the rule invoked by respondent to support the admission of the testimony complained of, namely, that evidence of similar offenses between the same parties may be introduced for specific and limited purposes, in prosecutions involving sexual crimes. But neither the events nor conversation of August 7th and the early morning of August 8th constituted an offense of any sort, similar or otherwise. Whether evidence relating to them was introduced at the first or second trial, we do not know, but such evidence, if believed by the jury in this case, of course, worked serious prejudice to the defendant, perhaps just enough to enable this third jury to find defendant guilty. We have read the entire transcript in this case and have considered other points urged by appellant; however, find it unnecessary to discuss them, since on the matters already referred to, his position on this appeal must be sustained.

Judgment and order reversed.

Houser, Acting P. J., and York, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on June 24, 1933, and an application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 7, 1933.