People v. Whalen

Defendant was convicted in a trial before the court of one offense of statutory rape, and four offenses of violation of sections 288 and 288a of the Penal Code, the subjects being two females aged 11 and 14, respectively. He was sentenced on all five counts, the terms to run concurrently. Upon the appeal he urges errors in the admission and exclusion of evidence and error in the allowance of amendments of the information.

One of the alleged errors complained of was the admission of evidence that the children first complained of defendant’s alleged acts to their father, Mr. Tipton, more than two years after the date of the last alleged act and that the testimony was inadmissible because of this long delay. It is unnecessary to discuss this point, for the reason that the testimony came in without objection. The children were living with their parents at all times. Their testimony was that similar acts of the defendant had been committed at intervals during several years—as to one of the children at East four years—preceding the final act. They were cross-examined at length as to their feelings toward defendant and their reasons for not confiding in their parents. It is apparent from the record that defendant’s counsel did not deem the testimony with reference to the complaints to be detrimental to the defense, but that, upon the contrary, he regarded the silence of the children during this long period as a fact which tended to discredit them and to weaken their testimony. Defendant has had the full benefit of this argument and may not now be heard to say that the evidence should not have been admitted.

A second claim of error has merit. Defendant’s daughter, 19 years of age, was allowed to testify, over defendant’s objection, that defendant had repeatedly endeavored to have sexual intercourse with her and that she had made complaint to Mr. and Mrs. Tipton, the parents of the children, respecting defendant’s conduct. Also the parents were allowed to testify as to the complaints and statements made to them by defendant’s daughter. This evidence tended to prove offenses

Defendant, who is now 45 years of age, had known the parents in the Bast. He had preceded them to California, had corresponded with them and when they came to California in 1936 he took up his home with them as a boarder and roomer. He was then a widower. He lived with them until July, 1942, when he moved elsewhere in Los Angeles, but he continued to see them occasionally. He married his present wife in November, 1942. He testified that during all of this time he lived in a meretricious relationship with the mother of the children. This she denied. He further testified that the reason he left the home was that he took a nighttime job and was told that the parents did not wish a day sleeper living in the home. Defendant was questioned, upon cross-examination, and over his objection, whether he had not, on several occasions, asked his daughter to have intercourse with him and whether he had not, in the home of his uncle, attempted an act of intercourse with her. His answers consisted of denials. For the avowed purpose of impeachment and to prove that defendant’s testimony as to the circumstances of his leaving was untrue, the People called as a witness in rebuttal defendant’s daughter and elicited from her testimony as to defendant’s conduct with her and the fact that she had complained to the parents concerning the same. She testified that she had been separated from her father for many years, living in the homes of friends and relatives; that she came to California with her father in July, 1941, and thereafter lived in the home of Mr. and Mrs. Tipton, where her father was living, and that she remained there until she was married in September, 1942. She testified that in July of 1942 she told the parents that her father had tried to have sexual relations with her within two weeks after her arrival in California; that he endeavored to force them upon her, and that he continued his efforts thereafter, sometimes every two or three weeks, sometimes once or twice a week, but that he had never succeeded. Then the parents were called by the People and questioned as to the complaints made by defendant’s daughter. The father testified to hearing a commotion in the daughter’s room, the door being closed, and of hearing defendant insist that his, defendant’s, daughter have sexual relations with him and of hearing the daughter crying. He testified that he heard defendant

If defendant had left the home after the date when, according to the testimony, the children first complained of his conduct, and if he had testified that the complaints of the children had not been mentioned and that he parted with the family upon friendly terms, such testimony would have been material and subject to impeachment. But the children had not- yet made their accusations, and did not make them for some two years thereafter. Or if defendant had testified that he was asked to leave the home under circumstances which would have tended to prove that the parents acted from malicious motives or if they had threatened him or otherwise exhibited animosity, it would have been proper to rebut defendant’s testimony upon those points. That, however, is not the situation. Defendant’s leaving the home under the circumstances had no possible connection with his treatment of the two little girls and his testimony tended to disprove any feeling of animosity on the part of the parents at that time. There was nothing in his testimony which called for rebuttal. The purported impeaching testimony related to testimony of the defendant which was not only immaterial but also was not unfavorable to the prosecution.

The authorities are unanimous in holding that a defendant’s right to a fair trial in this sort of ease is violated by the receipt of evidence of the commission of acts similar to those charged, with a person or persons other than the prosecutrix. (People v. Asavis (1937), 22 Cal.App.2d 492 [ 71 P.2d 307 ] and cases cited.) The People insist that even if the evidence was improperly admitted, it was not prejudicial, for the reason that it did not establish the commission of a crimi

The only question remaining is whether the evidence of defendant’s guilt was so strong and convincing as to require an affirmance, notwithstanding the serious errors in the admission of evidence. The conclusion which we reach is that upon the entire record the conviction appears as a miscarriage of justice, as that term has often been defined. The whole case is one of the credibility of witnesses. We are unable to tell from the record with what degree of confidence the trial court accepted the testimony, of the children as true. Although there is nothing in the testimony itself which would indicate that it was untrue, there are important circumstances to be considered in determining the strength of the case of the People. There was evidence of bitter feeling on the part of the parents toward defendant before they had heard complaints from their children; that in December, 1942, defendant had gone to their home intending to take therefrom furniture which he claimed,

We have one additional observation to make which seems appropriate in view of the record. It has been emphasized time and again that cases of this nature should be tried with the greatest of care. Reversals are inevitable if this admonition is not observed. There was a good deal of evidence received which was wholly irrelevant to the issues in the case. After defendant’s daughter had testified to his alleged conduct toward her and of her complaint to the Tiptons, the case took a turn in which the rules of admissibility of evidence and the consideration of evidentiary values were lost sight of. The daughter was questioned on cross-examination, over the objection of the district attorney, whether she had not had sexual relations with Mr. Tipton, and answered in the negative. In overruling the objection the court stated: “It goes to her credibility.” The objection should have been sustained. The methods of impeachment of witnesses are well defined; proof of specific wrongful acts is not among them. Court trials would be greatly complicated and oftentimes impeded by reluctance to give testimony if the law deemed credibility to be dependent upon or commensurate with chastity. As an illustration, the ruling in question was followed by testimony by Mr. Tipton that he had not had improper relations with defendant’s daughter, and by testimony of the daughter’s divorced husband that he had found his wife in bed with Tipton on several occasions, and by evidence that this last witness was serving a term in the county jail for some undisclosed offense. All of this line of improper testimony resulted from the original error in the cross-examination of the defendant and the subsequent receipt in evidence of the testimony of the daughter and the Tiptons. Whatever the conclusion of the court may have been upon this collateral issue, it should not have been accorded any weight in considering the credibility of the witness. The implication is, however, that a conclusion in favor of her chastity would have added something to her credibility. The cross-examination of the witness with reference to specific wrongful acts was wholly improper. The mere fact that she testified against her father demonstrated her unfriendly attitude and if this had not been sufficient, she testified to her unfriendliness in answer to a direct question.

It is unnecessary to consider other alleged errors urged by appellant.

The judgment and order denying a new trial are reversed.

Desmond, P. J., and Wood (Parker), J., concurred.