People v. Williams

Defendant was convicted of the crime of rape upon a girl under the age of sixteen years and was sentenced to imprisonment for the term of five years. He appeals from the judgment and from the order denying his motion for a new trial.

It is not contended that the evidence is insufficient to support the verdict. Briefly, the evidence was that defendant, with numerous other persons, including the prosecuting witness and her mother,.attended a hall on New Year’s eve, 1913; that the party broke up about three o’clock January 1st and defendant walked part of the way from the place where the ball was conducted with the prosecuting witness and her mother toward her home; that the mother left the daughter and defendant at the gate of a neighbor’s premises and went on to her residence; that defendant and the prosecuting witness were at this neighbor’s house alone some little time during which they sat on the porch of the premises where the alleged crime was committed. A family was living in this house but whether any of its members were awake at that early hour of the morning does not appear.

1. The following instruction offered by defendant was refused and the ruling is alleged as error especially, as is claimed, in view of the testimony of the prosecuting witness that de

Defendant cites People v. Howard, 143 Cal. 316 , [ 76 Pac. 1116 ], where it is claimed a somewhat similar instruction was refused. The decision was in Bank. The instruction was not commented upon in the main opinion but, in a concurring opinion by the Chief Justice, speaking of one part, he said: “The instruction contains a proposition which might very well have been given to the jury if it had been clearly stated by itself.” That is, the failure to make outcry might be considered “with all the other evidence in determining the credibility of such witness and whether rape was in fact committed or not.” The instruction refused in the present case was addressed to the fact that she made no outcry when there were persons in the-house “who might easily have heard her had she made an outcry,” which, it is claimed, would “tend to raise a presumption that no rape was committed upon her at the time.” The difference between the two instructions is obvious. A presumption is evidence and may outweigh the positive evidence of witnesses against it. (Code Civ. Proc., sec. 2061, subd. 2; People v. Milner, 122 Cal. 171 , 179, [ 54 Pac. 833 ] ; Estes v. Ballard, 22 Cal. App. 344 , 349, [ 134 Pac. 361 ].) To say that certain facts raise a presumption that no rape was committed is equivalent to saying that the facts constitute evidence that no rape was committed. But the court is forbidden to charge the jury “with respect to matters of fact.” (Const, art., VI, sec. 19.)

The law is well settled that it is immaterial whether the prosecuting witness consented or was forced to submit. Pier failure to make any outcry furnished no presumption that a rape was not committed.

“You are further instructed that in considering her testimony you may take into consideration the facts and circumstances surrounding the place where the alleged offense is charged to have been committed. All the facts and circumstances at the time and immediately after the alleged offense was committed, in determining the weight of her testimony, and the reasonableness thereof, as tending to show to your minds the credit to be given to the same. ’ ’

The court gave an instruction as follows: “It is not essential to a conviction in this case that the prosecutrix, Isabelle Dollarhide, should be corroborated by the testimony of other witnesses as to the particular acts constituting the pífense. It is sufficient, if you believe from her evidence and all the other testimony and circumstances in proof in the case, beyond a reasonable doubt, that the crime charged has been committed.

“While it is the law that the testimony of the prosecuting witness should be carefully scanned, still this does not mean that such evidence is never sufficient to convict; by the law of this state, a female child under the age of sixteen years is incapable of giving legal consent to an act of sexual intercourse, so that every act of carnal connection with such a child by one not her husband will constitute the crime of rape, whether with or without the consent of such child, and in this case, if you believe from the evidence beyond a reasonable doubt that the defendant had sexual connection with the prosecuting witness on or about the first day of January, 1913, as alleged in the information, and that at the time she was under the age of sixteen years and not the wife of the defendant, then the defendant is guilty of rape and the jury should so find.”

3. Instruction numbered five, asked by defendant, was fully covered elsewhere in the instructions.

4. At the time of the commission of the crime, sections 261 and 264 of the Penal Code, as they read in 1912, were in force. By section 261, rape was there defined as “an act of sexual intercouse, accomplished with a female, not the wife of the perpetrator, under the following circumstances: 1. When the female is under the age of sixteen years.” Then follow five other subdivisions covering other circumstances. By an amendment, in 1913 (Stats. 1913, p. 212) section 261 reads: “1. Where the female is under the age of eighteen years.” In all other respects the section is unchanged. Section 264, prescribing the punishment for rape, was materially changed. It is now contended that the statute of 1912 was repealed by the act of 1913 and there was, therefore, no law under which defendant could be tried or convicted.

Section 329 of the Political Code is as follows: ‘ ‘ The repeal of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment or information and punishment is expressly declared in the repealing act.” There is no such express intention shown in the repealing act of 1913. The sentence imposed was authorized by the earlier act. (People v. McNulty, 93 Cal. 427 , [ 26 Pac. 597 , 29 Pac. 61 ]; 12 Cyc., Crim. Law, p. 770; Monographic note, 94 Am. Dec. 217 , 219.)

5. Misconduct of the district attorney is complained of on the ground that he asked a question of a witness called by the

6. It is urged that a new trial should be ordered because two of the jurymen were in an advanced state of intoxication both during the trial of the case and during the rec.ess of the court. On the motion for a new trial affidavits were read in its support. These affidavits related to juryman Rantz and juryman Mugler. As to the evidence concerning the conduct of juryman Rantz, the affidavits were concededly in substantial conflict, which removes the matter from consideration on appeal.

Hazel Vaughan deposed that she was present at the trial and “carefully watched said jurors who were empaneled to try said case; that Albert Mugler, one of said jurors, was drunk and in an intoxicated condition on the 10th, 11th and 12th, both on the streets of Treka, California, and on the 12th in the courthouse at Yreka while he was on the jury in said case and was utterly unfit to serve as such juror. ’ ’ C. W. Kaler attended the trial on the 10th, 11th, 12th, and 13th of November, 1913; he deposed “that he had special chance to observe the conduct of said jurors; that Albert Mugler, who was a juror in said case, was drunk while on the jury and that in the opinion of affiant said Mugler was not in a condition to serve as such juror and was incapacitated by reason of his intoxicated condition.” Callie Jones deposed that she was present at the trial during the four days mentioned; “that she knows juror Albert Mugler; that said juror Albert Mugler was drunk on each and every day that he sat at said courthouse as a juror; that he was drunk when said court opened on Monday morning; that he was drunk on that day while on the jury; that he was drunk on Tuesday all day; that he was very drunk on Wednesday; that he was utterly unfit to serve as a juror, owing to said intoxication; that the

Juror Starr deposed that, on Thursday morning, the day after he was fined for contempt, Mugler “came into court in a sober condition, remained in that state and went into the jury room duly sober and was in a condition to discuss and did discuss the evidence in the ease intelligently.” Deponent did not speak of Mugler’s condition during the other days of the trial and there was no evidence submitted on Thursday. Juror Mugler deposed that, “on Wednesday, November 12, affiant became intoxicated and on convening the court on the afternoon of that day (there was no session in the forenoon) the court at the request of both the district attorney and counsel for defendant granted a continuance of the case until Thursday morning at 10 A. M. and at that time affiant was duly sober; that the case was given to the jury on the afternoon of Thursday, November 13, 1913, and at that time and all times while hearing the evidence, affiant fully and intelligently considered the evidence; . . . that he never to his knowledge, ever formed or expressed an opinion as to the guilt or innocence of the defendant until he had retired to the jury room to deliberate on the verdict, and in this regard affiant admits that on one or two occasions during the times herein mentioned he was quite intoxicated outside the court

It appeared that deponent Hazel Vaughan is defendant’s sister and deponent Callie Jones is his mother and that deponent Naves was a clerk in the office of defendant’s attorney, Mr. Collier. It also appeared that defendant’s attorney was told of the facts stated in the depositions of Miller and Linton that Mugler had, while in an intoxicated condition, declared that his mind was made up and nothing could change it.

In the ease of the People v. Romero, 12 Cal. App. 466 , 470, [ 107 Pac. 709 , 711], the alleged intoxication of the juryman occurred during recess of the court and, as was stated in the opinion: “several jurymen deposed that at no time during the proceedings while evidence was being taken or when the jury retired to consider their verdict was Hayes intoxicated, but, on the contrary, ‘he was sober during the trial, and in all ways perfectly able to consider the evidence introduced at the trial of said cause and to intelligently exercise his judgment thereon.’ ” It was further said in the opinion: “The fact that a juror drank intoxicating liquor during recess of the court will not vitiate the verdict if it appears from the affidavits of his fellow jurymen, as here, ‘that the juror while sitting or deliberating as a juror, was sober, intelligent and in a fit condition to understand and deliberate upon the evidence and determine the verdict.’ ” (Citing People v. Deegan, 88 Cal. 602 , [ 26 Pac. 500 ].)

In People v. Boyd, 16 Cal. App. 130 , 135, [ 116 Pac. 323 ], the question of excessive indulgence in liquors by jurymen during recess of the court was under consideration, but there was a substantial conflict of evidence on the subject which, under the rule, removed the question from consideration here. Besides, there was no evidence showing that the juror com

In the present case there is some evidence that the juryman Mugler was intoxicated while in the jury box, during the progress of the trial, to an extent which incapacitated him from intelligently considering the evidence. There is no conflict in the affidavits unless it can be said that Mugler’s affidavit creates it. Two of the affiants, who deposed to his condition while evidence was being taken, were closely related to defendant—one his mother and one his sister—to which fact the court must have attached sufficient importance to justify it in disregarding their opinion. The only other affiant deposing to Mugler’s condition while evidence was being taken was affiant Kaler. His statement was that Mugler was drunk every day of the trial and particularly on the first three days and while “he was on the jury,” but he does not state "that he was in that condition while evidence was being taken. On the fourth day the affidavits show clearly that Mugler was duly sober. The court doubtless concluded that as between the sweeping statement made by Kaler and the specific statement made by the juror the latter was the more dependable. To say that there was no substantial conflict we must hold that the court was not justified in accepting Mugler’s statement as true. We cannot see our way clear to do this. Besides, we are influenced in some degree in our conclusion by the fact that defendant’s counsel knew of the condition of Mugler during the recess of court and that he had made statements while intoxicated as to how he would vote when considering the verdict. Where misconduct of a juror is known to the complaining party and is of such a character as to disqualify the juror, it is the duty of the party complaining promptly to call the attention of the court to such misconduct. In Ipswitch v. Fernandez, 84 Cal. 639 , 641, [ 24 Pac. 298 ], the court said: “If, then, the intoxication, which plaintiff avers to have commenced at the beginning of the trial, and continued to its close, was apparent to him, he could not keep quiet on the subject, take the chances of a favorable verdict, and then avail himself of it for the first time after defeat.” (See 1 Hayne on New Trial, see. 27; Monaghan v. Rolling Mill Co., 81 Cal. 190 , 194, [ 22 Pac. 590 ]; Doolin v. Omnibus Cable Co., 140 Cal. 369 , 375, [ 73 Pac. 1060 ].) But

The judgment and order are affirmed.

Hart, J., and Burnett, J., concurred.