People v. Lew

This is an appeal from a judgment of conviction of violating section 702 of the Welfare and Institutions Code, and from the order denying appellant’s motion for a new trial.

The information in the present case charged two causes of action: 1. Rape upon a female person under the age of eighteen years (Pen. Code, §261). 2. That the defendant registered at a hotel with a sixteen-year-old female, who was not the wife of appellant, and occupied the same room with her, thereby contributing to the female becoming and

The prosecutrix is from a midwestern state. There she was married by “a preacher” during the year 1945, but remained with her husband only one night. Evidently no license was demanded, nor was any question of age considered. In the present proceeding the prosecutrix testified that she would reach the age of seventeen on July 10, 1946. The information alleges, and the evidence shows, that the offense was committed on March 21, 1946.

On March 8, 1946, the prosecutrix was living with her parents in Contra Costa County. On that date she returned from school and dressed for a “junior prom” to be held in an adjoining district. However, with four other girls and a boy, she attended a dance in a different district. After the dance she returned to her home town with two of the girls and the boy. From there she visited a nearby city alone, where she attended a midnight show. She then started home on a bus, San Francisco bound, which passed through her home town. On the bus she met one Lee Wong, who invited her to San Francisco to see Chinatown. They arrived in San Francisco at about 3:15 a. m. and proceeded to Wong’s apartment on Grant Avenue. The girl remained there for the night, sleeping on a couch in the dining room. Appellant, Tom Lew, and Lee Wong occupied the bedroom. The next day she had lunch with Wong, who gave her $5; she already possessed $7. That evening she had dinner with appellant, Tom Lew, and left by train for home. On the train she met a man and his wife, with whom she remained for several days. While with these people she procured, through the

Appellant contends: 1. That the evidence does not support the verdict; 2. That appellant did not contribute to delinquency; 3. That the second count does not charge a

The first contention is based upon the claim that it was not established by pleading or proof that the prosecutrix was a minor; that is, a person under the age of twenty-one years. The age of the alleged delinquent is a material issue under the provisions of the Welfare and Institutions Code, section 702. The count upon which the appellant was convicted alleged the prosecutrix to be “sixteen years of age” and “a person under twenty-one years.” The evidence shows that the prosecutrix testified that she was sixteen at the time of the alleged offense. This evidence, though based upon information given by the prosecutrix’ parents or others qualified to know, is sufficient to prove that issue. In People v. Pribnow, 61 Cal.App. 252 , 258 [ 214 P. 475 ], it is stated: “The testimony of a prosecutrix as to this fact [her age] is admissible, although her knowledge of it is derived from the statements of her parents or by family repute (People v. Ratz, 115 Cal. 132 [ 46 P. 915 ]). Moreover, the jury was entitled to consider the appearance of the prosecuting witness as indicating her age (People v. Koosistra, 58 Cal.App. 277 [ 208 P. 316 ]).”

Appellant claims that certain evidence was suppressed and that therefore the conclusion should be reached that such evidence if produced would be adverse. The evidence referred to is the card issued to the prosecutrix under a fictitious name, certifying her age to be twenty-three years. Although the prosecution did not produce the card, the prosecutrix testified as to its falsity. On cross-examination she testified that it was issued under a fictitious name in another city by the police department. Appellant had an opportunity to interrogate the witness relative to the falsity of the age given on the card. An accused should be given the advantage of every legal right in an effort to maintain his innocence. Nevertheless, under all the facts it should not be held that the appellant was injured by the prosecution’s failure to produce the card. The credibility of testimony is a matter to be determined in the trial court. (People v. Latona, 2 Cal.2d 714 [ 43 P.2d 260 ]; People v. Conterno, 51 Cal.App.2d 167 [ 124 P.2d 610 , 611]; People v. Schultz, 49 Cal.App.2d 38 [ 120 P.2d 893 ].)

Prior to registering at the hotel the prosecutrix and Lew visited several sky rooms and a restaurant. The district attorney argued to the jury, against the objection of appellant’s counsel, that certain drinks purchased by Lew for the prosecutrix contained hard liquor; that Lew impressed the girl by taking her to an expensive place where he fed her “some liquor” and “a few highballs.” The statements were unwarranted but not prejudicial, in view of the testimony of the prosecutrix that she consumed soft drinks. Upon the objection of appellant’s counsel, the court stated that they were soft drinks and the district attorney expressly stated that whatever they were drinking, it was a question for the jury. In no instance did appellant assign the remarks of the district attorney as misconduct nor did he request that the jury be instructed to disregard the district attorney’s remarks. Under such circumstances the alleged misconduct need not be considered on appeal. (People v. Yecny, 53 Cal.App.2d 474 , 478 [ 128 P.2d 146 ].) Lastly, appellant contends that the court erred in denying the request of a juror for further instruction. After his request was denied, the juror neverthe

The judgment and order denying the motion for a new trial are affirmed.

Peters, P. J., and Schottky, J. pro tern., concurred.