People v. Smittcamp

Appellant was charged in an information filed by the District Attorney of Los Angeles County in counts I and III with violations of section 288 of the Penal Code, and in count II with statutory rape. The jury returned verdicts of guilty as to counts I and III, and, having failed to agree upon a verdict as to count II, the court declared a mistrial as to that count and on its own motion dismissed it “in the interest of justice.” Thereafter a motion for a new trial as to the counts upon which defendant was convicted was made and denied. Thereupon, proceedings were suspended as to said counts and the defendant was granted probation for a period of five years on condition that he serve the first year of such probationary period in the county jail. Prom the order denying his motion for a new trial, defendant prosecutes this appeal. Defendant also attempts to appeal from “the judgment” but, inasmuch as no judgment was pronounced, the attempted appeal therefrom must be dismissed.

The prosecutrices were two sisters aged nine and thirteen years at the time of the alleged commission of the crimes charged in counts I and III of the information. Defendant was then 63 years of age and for some five years prior to his arrest had lived on Sherman Way in Los Angeles County. During the latter part of this period he was a partner of one Mrs. Hendrick in the turkey-raising business. Upon her death, through the provisions of her will, he became the sole owner of such business.

When the defendant first took up his aforesaid residence,

The acts complained of, and the other improper acts about which the prosecutrices testified, are alleged to have been committed between May 2d (the date on which the act charged in count III was alleged to have been committed) and September 6, 1943 (the date on which the act charged in count II was allegedly committed).

The father of the prosecutrices and defendant had a disagreement as to the ownership of the money represented by a certain check; and, thereafter, defendant's arrangement to take his evening meal at the home of the prosecutrices was terminated about the 12th of January, 1944. Defendant testified that, at that time, he was "through with” the whole family. In February, 1944, some nine months after the alleged commission of the first offense complained of, while defendant was out of the city, the prosecutrices complained to their parents concerning his conduct.

The first ground relied upon by appellant for a reversal is that the court erred when the jury was instructed that:

"Evidence of other acts of sexual intercourse between the defendant and the prosecutrix, and of improper familiarity on the part of the defendant towards and with the prosecutrix, both before and after the time charged in the information, is received and admitted in evidence to prove the adulterous disposition of the defendant, and as having a tendency to render it more probable that the act of sexual intercourse

charged and relied on in the information was committed, and for no other purposes.” (Emphasis added.)

Eespondent insists that “unquestionably the instruction given was directed toward the second count,” which charged the offense of rape, and, for that reason, even if conceded to be erroneous, was harmless error in view of the fact that upon the jury’s failure to arrive at a verdict thereon said second count was dismissed by the trial court.

However, in a prosecution such as the one with which we are here concerned, the word “adulterous” cannot be regarded in the light of the narrow or technical definition of “adultery” (Pen. Code, §§ 269(a) and 269(b); Civ. Code, §93), but it must be given the broader and more generally accepted meaning which includes lewdness or unchastity of thought as well as of act. Therefore, the language contained in the challenged instruction that such evidence is “received . . . to prove the adulterous disposition of the defendant” must be taken to mean that such evidence is received to establish the fact that the defendant was given to licentious and unchaste thoughts, and therefore possessed of a tendency, desire and willingness to commit such lewd and lascivious acts as those' denounced by section 288 of the Penal Code, as well as those described by section 261 of the same code. In the absence of any language directly and positively advising the jury that such evidence was not to be considered by them except as to the offense of rape charged in count II of the information, the conclusion is inescapable that the jurors were authorized to, could and probably would, infer from such evidence that it was more probable the defendant committed the acts charged in counts I and III as well as the act charged in count II of the information. It would challenge credulity and do violence to reason to assume that the instruction as given did not influence the verdicts returned as to counts I and III. Therefore, respondent’s argument that, because the court dismissed count II after the jury had considered the same and failed to reach a verdict thereon, precludes consideration of the questioned instruction on the instant appeal from the order denying a new trial as to counts I and III is not impressive.

By a long line of authorities it is now established as the law in this state that, in prosecutions for sexual offenses, evidence of other like offenses or acts of improper familiarity,

As we have indicated herein, evidence of “other acts” to prove that the parties are adulterously, incestuously or lasciviously inclined is admitted only as corroborative evidence tending to support the one specific offense for the commission of which the defendant is on trial. Had there been testimony other than that given by the prosecutrices themselves as to the “other acts,” then there would be corroboration of the prosecutrices’ testimony as to such acts, and the purpose and intent of the rule of law permitting such corroborative testimony would have been accomplished, viz.:

The decision in People v. Bell, 96 Cal.App. 503 , at pages 507 to 509 [ 274 P. 393 ], cites People v. Haugh, supra, approvingly and holds that an instruction identical with the one before this court in the instant action was erroneous, saying that the testimony of the prosecutrix as to subsequent acts could not strengthen her statement concerning the act complained of “or tend to establish more firmly the possession of an adulterous disposition by the appellant.” (Emphasis added.) However, in the Bell case such error was held not to have caused a miscarriage of justice, in view of the uncontradicted testimony that defendant had in the presence of several persons admitted that he had committed the one act alleged in the information.

In People v. Vaughan, 131 Cal.App. 265 , 275 [ 21 P.2d 438 ], an instruction similar to the one in the case at bar was characterized as “. . . objectionable also on grounds referred to” in People v. Haugh and People v. Bell, supra.

While not conceding that the instruction given in the instant case is either erroneous or prejudicial, respondent de

We pause here to say that what we have herein stated regarding “corroborative evidence” or “corroboration” bears no reference to the specific acts charged in counts I and III, because it is established law in this state that, in a prosecution under section 288 of the Penal Code, the prosecutrix, being-under the age of 14 years, could not be an accomplice, and no corroboration of her testimony as to the specific act charged against the defendant in the information is necessary (People v. Johnson, 115 Cal.App. 704 , 706 [ 2 P.2d 216 ]; People v. Vaughan, supra, at p. 267).

Insofar as count I is concerned, there is in the record no testimony whatsoever, either as to the specific act relied upon for conviction or as to the “other act,” except the testimony given by the prosecutrix herself and that given by the defendant in complete denial thereof.

In an effort to avoid the application of the rule herein announced upon the authority of the Haugh, Bell and Vaughan cases, supra, respondent relies upon certain portions of the defendant’s own testimony as corroborative of the commission by him of the “other acts,” concerning which the prosecutrices testified, which testimony, as set forth in the questioned instruction, was received to “prove the adulterous disposition of the defendant.” The specific portions of defendant’s testimony upon which reliance is placed by re

Further, as evidence of “other acts” corroborating the testimony of one of the prosecutrices, the respondent relies upon the testimony of her sister respecting the act charged in count II of the information in which the former appeared as the prosecutrix, concerning which the jury was unable to reach a verdict and which was later dismissed by the trial court “in the interest of justice.’’ Obviously this could not be one of the “other acts,” because it was the act specifically charged in count II and relied upon for a conviction upon that

The record in the case with which we are here concerned, therefore, presents a situation similar to those existing in the Haugh, Bell and Vaughan eases, supra, where, as in the instant case, the only evidence of “other acts” was the prosecutrices’ own testimony which could in no way add to, strengthen or render more creditable their testimony that the acts charged and relied upon in the information for conviction were committed, and such evidence on the part of the prosecutrices could not be said in any way to render the guilt of the defendant or his possession of an adulterous disposition “more probable” than if they had testified only to the specific acts charged in the information.

It is next contended by appellant that the court erred in its decision upon a question of law which arose during the trial. In that regard, it appears that appellant testified that one of the prosecutrices had stated to him that another man who was a friend of her father had taken offensive liberties with her person; that she had informed her father of such fact as a result of which the latter had ordered the man in question to remain away from the home of the prosecutrices in question. In rebuttal, the prosecution produced the aforesaid man as a witness and, over the objection of defendant, he was permitted to testify that neither the father of the named prosecutrix nor anyone else ever ordered him away from the home of such prosecutrix or asked him to “stay away from his place.” Over defendant’s further objection, this witness was permitted to testify that at no time had he “fondled, felt or caressed the private parts of-:—” (the prosecutrix named), and that he had “never at any time spoken to her or anything of that kind. That is one of the things in which I have been above reproach.” Whether or not this rebuttal witness had ever been guilty of the misconduct charged against him by one of the prosecutrices in her conversation with the defendant was not in question. In his testimony the latter did not charge the witness with being

Finally, appellant contends that the evidence is insufficient to support the verdict. Notwithstanding the inconsistencies apparent in some of the testimony given by the prosecutrices, the vagueness of their memory in some respects, and their failure to make complaint of the defendant’s alleged conduct for several months, it cannot be said that the testimony of the children in regard to the immediate circumstances surrounding the assaults allegedly made upon them was of such a character that it would appear therefrom that something had been done that it would not seem possible could be done under the circumstances described. While defendant’s claims advanced here offered opportunity for a persuasive argument to the jury, we find in them nothing that would justify a reviewing court in concluding that such testimony is per se unbelievable and therefore inherently improbable (People v. Roberts, 50 Cal.App.2d 558 , 564 [ 123 P.2d 628 ]; People v. Harkness, 51 Cal.App.2d 133 , 140 [ 124 P.2d 85 ]).

We must now inquire into the effect of the errors of the trial court upon the disposition of this appeal, in the light of the provisions of section 4%, article VI of our state Constitution. When applying the provisions of the constitutional section just cited to a cause in its entirety, we must direct a reversal when we are unable to say “whether appellant would or would not have been convicted but for the errors of the court” (People v. Degnen, 70 Cal.App. 567 [ 234 P. 129 ]). In People v. Davis, 210 Cal. 540 , 556 [ 293 P. 32 ], we find the following language:

“Section 4% of article VI of the Constitution was not intended to mean that the mere fact that the evidence may legally be able to stand up under the weight of the judgment is sufficient reason in all cases for refusing to set aside the judgment. The phrase ‘miscarriage of justice,’ used as descriptive of that condition of a cause which justifies the reversal of a

In the instant case the evidence is in sharp conflict. All of the material facts testified to by the prosecution were denied and controverted and the defendant presented an imposing array of witnesses who testified to his good reputation concerning the traits involved in the offenses charged against him. There is no corroboration of the testimony of the respective prosecutrices as to the commission by the defendant of the specific acts charged in the information or of the “other acts,” and the only act concerning which they in any degree corroborated each other was the act charged in count II, upon which the jury was unable to reach a verdict and which was thereupon dismissed by the court “in the interest of justice.” The doctor from Juvenile Hall, who was supposed to give corroborating testimony, on the Contrary testified that there was a possibility that the condition she found as to both girls was a normal one.

As to the specific acts charged in the information, we are not unmindful of the rule of law hereinbefore referred to that corroboration of the testimony of the prosecutrix in a case such as the instant one is not required to sustain a conviction; but in considering the application of section 4% of article VI, we make mention of the total lack of any corroboration, because the recollection and memory of the prosecutrices was admittedly vague in connection with several important circumstances of the case. There is also present the fact that neither prosecutrix made any complaint for some eight or nine months after the claimed outrages to her person occurred. In People v. Adams, 14 Cal.2d 154 , 163 [ 93 P.2d 146 ], we are reminded by the Supreme Court of the language employed by that court as far back as People v. Benson (1856), 6 Cal. 221 , 223 [ 65 Am.Dec. 506 ], reading as follows:

“There is no class of prosecutions attended with so much danger, or which afford so ample an opportunity for the free

As was said by this court in People v. Duvernay, 43 Cal.App.2d 823 , 829 [ 111 P.2d 659 ] :

“There is creditable authority for the statement that the phrase ‘miscarriage of justice’, as used in the constitutional provision, ‘does not merely mean that a guilty man has escaped or that an innocent man has been convicted. It is equally applicable to cases where the acquittal or conviction has resulted from some form of trial in which the essential rights of the people or of the defendant were disregarded or denied. The right of the accused, in a given case, to a fair trial, conducted substantially according to law, is at the same time the right of all inhabitants of the country to protection against procedure which might at some time deprive them of their life or liberty. “It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure in which the substantial rights belonging to the defendant shall be respected.” (People v. Wilson, 23 Cal.App. 513 [ 138 P. 971 ].) In the instant ease we do not regard the evidence as sufficient to put into operation the provisions of section 4% of article VI of the Constitution, because even convincing proof of a defendant’s guilt does not necessarily mean, under all circumstances, that there has been no miscarriage of justice. (People v. Mahoney, 201 Cal. 618 [ 258 P. 607 ] ; People v. Patubo, 9 Cal.2d 537 [ 71 P. 2d 270 , 113 A.L.R. 1303 ].) When a defendant is denied that fair and impartial trial guaranteed by law, such procedure amounts to a denial of due process of law. (Powell v. Alabama, 287 U.S. 45 [ 53 S.Ct. 55 , 77 L.Ed. 158 , 84 A.L.R. 527 ].)”

Courts are obligated to insist that a defendant be fairly convicted. To relax this rule would be to provide ways and means for the conviction of the innocent. Prom a reading of the record in the case now before us, we are persuaded that the errors mentioned herein may well have turned the scale in favor of the prosecution; and we cannot say that, in the absence of such errors, a reasonable jury properly instructed would not have rendered a different verdict.

No judgment having been pronounced, the attempted ap

York, P. J., and Doran, J., concurred.