People v. Houser

Defendant was charged in an information with three counts of felony, committed on July 4, 1947: Count One, with rape by force; Count Two, statutory rape; and Count Three, with lewd and lascivious conduct upon the body of one Patsy Ann Jeter, 8 years of age. On motion of the People, the first and second counts were dismissed. A trial by jury resulted in a verdict of guilty on the third count. A motion for new trial was denied. The appeal followed.

Patsy Ann was in the third grade at school. She said she knew what it was to tell a lie and that the answers to the questions about to be propounded would be the truth. On the evening of July 4, 1947, she was left in her mother’s parked car with her little sister, aged 3, on a street in front of a bank near the “Lindsay Club.” The mother went into this club to ask her husband, who was playing cards in the back room, to come home with her. During this waiting period she returned several times to see if the children were all right. She last saw Patsy about 10:30 p. m. Around 11 p. m. a man approached the car and asked if Patsy would “like a pound box of candy.” She got out of the car and walked down the street with the man. She said he told her the box of candy was in a near-by orange grove. She went with him. She was barefooted and after they entered the grove for some little

The child was taken immediately to a doctor and examined. According to his report there was substantial evidence of the commission of the acts described.

Defendant makes no contention in this regard, but relies principally on the question of identification and lack of evidence connecting him with the commission of the offense.

Patsy showed the officers where she went with the man into the orchard. Her bare feet tracks were reflected in the dirt as well as the shoe prints of the culprit. A plaster of Paris cast was made of one of the most prominent of the shoe prints.

The next morning the officers took two suspects to Patsy’s home for possible identification and they were rejected by her. Defendant was then picked up and taken to her home and identified by her. As to this identification she testified in the justice’s court, where defendant was having the preliminary hearing without the aid of counsel: “Q. And when you saw this man you think that (he) did it? A. Yes. ... Q. And when you think, are you sure this is the man who did it ? A. Yes. Q. You are really sure, you are not saying because I suggested, I want you to tell the court the truth, was he, he was the man you thought at that time that done it? A. Yes . . . Q. And as you look at this man now, do you think he is the man who did that to you in the grove ? A. Yes. . . . He looks like him. . . . He had a moustache. ’ ’ She later testified at the preliminary hearing in response to a question by the district attorney as to whether “the man who did this, to you was in the court?” She replied: “I don't know.” The defendant was then pointed out to her and she was asked: “Is this the man,” and she said: “I don’t know.” She testified at the trial that she was not sure at the preliminary but she was sure now and she pointed out the defendant from a group of

The officers asked defendant as to his whereabouts the night of July 4th. He stated that he had been drinking quite heavily that day but was not intoxicated; that that evening he had made the rounds of the local bars; that he was in the Lindsay . Club and saw men playing poker at one of the tables; that a short time before 11 p. m. he left the club by the rear entrance and went home. He specifically described to them, block by block, and street by street, the exact rqute he said he took in going home at that time. The officers then took him to his near-by home where he lived with his invalid father and 8-year-old sister. They asked to see the clothes he wore the night before. He had washed them early that morning and they were hanging on the line with other family clothes that he had also washed. He was asked to see the shoes he had worn and he pointed them out to the officers. These shoes had been cleaned and shined that morning. The shoes, a blue sport shirt and a pair of blue-colored pants were taken and are exhibits in the case. The officers repaired to the spot in the orange grove and measured the footprints for size and observed identifying marks between the shoe and the footprints in the dirt. The plaster of Paris cast, the shoes, several samples of soil in the orchard and Patsy’s dress were forwarded to the State Bureau of Identification for examination, photographing and for a comparison.

Mr. Bradford of that department qualified himself as an expert and testified that it was impossible to get the blood grouping from the dress because it was contaminated with dirt

Another expert witness, employed by the Berkeley Police Department, testified that he was assigned to conduct an interrogation of defendant with the aid of the Keeler polygraph (Lie Detector). This test, apparently, was consented to by defendant and his attorney, in writing, and it was agreed that the result thereof might be considered as evidence in this case either on behalf of the People or on behalf of the defendant. The machine was displayed to the jury and its mechanism and the manner in which the test was given was explained and interpreted to the jury. He explained that he asked the defendant a series of 10 questions to be answered by “yes” or “no.” Some questions related to matters immaterial to the charge and others were directly pertinent to it. The graph was introduced in evidence. The expert concluded and stated that he was of the opinion from the test given defendant that defendant Houser was not then telling the truth in respect to the accusations made.

Defendant testified as to his army record and counsel for defendant offered his honorable discharge in evidence, without objection, and it was read to the jury in detail. He then' testified that since his discharge he had been working rather steadily, supporting his father and sister, but that he had also

Several character witnesses were called by defendant, who testified as to his general reputation as to the “traits involved . . . truth, honesty, integrity and morality, ’ ’ and, as suggested' by the prosecutor “whether he is law-abiding or not.” These witnesses testified generally that his reputation was good, or that they never heard anything against it. On cross-examination of the witnesses, over objection, the witnesses were asked if they had heard a report that prior to July 4, 1947, defendant was charged with, had pleaded guilty to, and was sentenced to the road camp for the offense of driving an automobile without the owner’s consent, and was then on probation and ordered not to frequent places where intoxicating liquor was sold; or a report that he had been charged with and pleaded guilty to an offense of public intoxication and paid a fine; or a report that he was suspected of committing an act

Counsel for the defendant made a plaster cast from defendant’s shoe and had photographic exemplars made. He produced the exemplars and endeavored to explain to the jury and likewise to this court wherein the exemplars cast of the footprint taken by the prosecution were dissimilar.

The defendant’s first point on appeal is the claim that Patsy’s testimony as to her identification of him is unworthy of credence and should be rejected. In her testimony at the trial she positively identified the defendant as the' man who took her to the grove. She rejected two other suspects and identified the defendant with the words: “If not him it sure looks like him.” Her first identification of the defendant to the officer was that his shirt was khaki-colored. She nevertheless described his pants as “kinda bluish” and that he “smelled like whiskey.” She did attach a moustache to his first description but later described it as “kind of a few hairs under his nose. ’ ’ These variations, when considered with her age and probable excitement at the time, may have been satisfactorily accounted for to the jury. Likewise, as to her statements at the preliminary examination with reference to defendant’s identification. The committing magistrate testified at the trial that toward the latter part of her testimony defendant stood immediately in front of Patsy, with other officers of the court, because they could not hear, and that he noticed when defendant came close to her, while on the witness stand “she was much more hesitant in answering the questions put to her”; that she was “hesitant—and before she would answer, she would look at the defendant and then hesitated in answering certain questions.” It is the People’s argument that the position taken by the defendant in front of Patsy frightened her, and accordingly confused her in failing to answer the questions as she had previously answered them. This is not unlikely and the jury had the right to consider that factor.

The same contention as here made, was advanced in People v. Slobodion, 31 Cal.2d 555 , 558 [ 191 P.2d 1 ], and it was there said: “Since the testimony of the prosecutrix was, so far as the record shows, worthy of belief, minor inconsistencies not destructive of her story were for the jury to pass upon.” (See, also, People v. Farrington, 213 Cal. 459 , 463 [ 2 P.2d 814 ].)

The question of the strength or weakness of the prosecutrix’s testimony as to the identification of the defendant as the perpetrator of the crime was for the jury and for the trial court to determine on the motion for new trial. (People v. Quinn, 12 Cal.App.2d 752 , 754 [ 55 P.2d 277 ].) From the record before us we are unable to say that, as a matter of law, there was no substantial evidence to support the identification of the defendant by the prosecutrix. (People v. Friday, 18 Cal.App.2d 197 [ 63 P.2d 303 ].)

The second point is that the identification of defendant’s shoe as being the shoe that made the footprint is so “shot with inconsistencies and so contrary to the physical facts” that such identification and opinion based thereon is “wholly without evidentiary value,” citing Estate of Redfield, 116 Cal. 637 , 655 [ 48 P. 794 ], The same argument made to this court in this respect, was made to the jury and to the trial judge on a motion for new trial and by them rejected. The expert endeavored to account for such claimed inconsistencies as were pointed out by defendant’s counsel. The jury also made their own examination of the exhibits and considered them in connection with that testimony. This comparison was a factual question for the jury, which was, as expressed by counsel for the People, a “constitutional arbiter. ’ ’ There was sufficient evidence upon which the opinion of the expert could be properly based.

The next point involves the testimony pertaining to the lie detector test. It is claimed that such evidence has no evidentiary value and that such class of evidence is not regarded by the courts, and therefore it was improperly admitted. It appears from the written stipulation signed by

The claim that the dismissal of the first two counts of the information by the People modified the terms of the stipulation to the extent that the defendant was entitled to be relieved of the stipulation is not meritorious. The value and weight of the evidence produced on this subject was for the jury to determine.

Defendant next charges prejudicial errors in certain claimed misconduct of the prosecutor. One involved a series of questions pertaining to a social disease known as syphilis. The first mention of such disease emanated from counsel for defendant and it appeared during the cross-examination of Dr. Mickel. There he interposed a request that Patsy be examined to ascertain whether or not she was thus affected. Thereafter Mr. Carter stated: “Q. In the interests of time, counsel, so far as this case is concerned, the only real point of interest there is whether or not this defendant was afflicted with such a disease, isn’t it? Mr. Stevenson: It is, but counsel, you have opened up the line of questioning upon that and I intend to introduce the evidence on that. Mr. Carter: Introduce the evidence ? He is not afflicted and never has been.” The prosecuting attorney then stated to Mr. Carter: “I presume you can make arrangements for Mr. Houser to have tests along the same tines. Mr. Carter: No,

Counsel for defendant now argues that a serious “blow was struck by the prosecutor, ’ ’ and since the admission of the discharge certificate in evidence was immaterial, and known by the prosecutor to be immaterial the question propounded on cross-examination was cross-examination on an immaterial matter and should have been stopped by the trial court even though no objection was made thereto by defendant’s counsel, citing People v. Westek, (Cal.App.) 181 P.2d 108 . A hearing was granted in the Westek case cited and relied upon by the defendant. (See People v. Westek, 31 Cal.2d 469 [ 190 P.2d 9 ].) In fact this later authority supports the conclusion that since defendant “opened the case” for the introduction of evidence on the question of his good moral character and his unimpeachable moral status and proceeded to establish this by his record pertaining to his honorable discharge, the prosecution had the right to cross-examine the witness as to what his complete record did in fact show, which fact tended to contradict, weaken, or modify its effect.

The next complaint involves certain questions propounded on cross-examination by the prosecutor to the character witnesses produced by defendant. The questions as promulgated, i. e., as to whether or not the witnesses had heard of specific reports or rumors adverse to the trait of character involved, were carefully framed and clearly bring them within the rule set forth in People v. Westek, supra, p. 479, stating that there is a “vast difference between inquiring about reports, rumors and the like, of a character witness, and questions as to what the witness knows of defendant.” (See, also, People v. Burke, 18 Cal.App. 72 [ 122 P. 435 ]; People v. Smith, 100 Cal.App. 344 , 347 [ 279 P. 1022 ].) The questions as propounded were not objectionable under the circumstances here related. Defendant took the stand later and admitted the facts in reference to the foundation for the reports as to his former arrests and convictions and offered evidence as to the purported rumor of having been suspected of an act of sodomy on a 10-year-old boy. Defendant, apparently, did not enlighten the jury correctly as to the facts surrounding his previous arrests and confinement. Objection was made respecting the admission of certain records and the People’s reference thereto establishing certain facts contrary to defendant’s story. We see no merit to these objections. Likewise, there is no showing that the questions propounded of the character witnesses on cross-examination were made in bad faith. It must be presumed, on appeal that the district attorney was conscientiously discharging his duty as he understood it. (People v. Burke, supra, p. 89.)

Similar objections were made to certain portions of the prosecutor’s argument to the jury. The entire transcript of the testimony, the record of counsel’s argument, and the exceptions taken thereto, have been thoroughly read and examined in detail and we conclude that no prejudicial error resulted and that defendant was accorded a fair and an impartial trial.

Judgment and order affirmed.

Barnard, P. J., and Marks, J., concurred.