Opinion
Cr. 2765
1-16-1952
PEOPLE v. EVANS. *
Popper & Burnstein, Oakland, for appellant. Edmund G. Brown, Atty. Gen., David K. Lener, Deputy Atty. Gen., for respondent.
PEOPLE
v.
EVANS. *
Jan. 16, 1952.
Hearing Granted Feb. 14, 1952.
Popper & Burnstein, Oakland, for appellant.
Edmund G. Brown, Atty. Gen., David K. Lener, Deputy Atty. Gen., for respondent.
NOURSE, Presiding Justice.
Defendant was found guilty by a jury of violation of section 288 and 288a Penal Code. The court granted a new trial as to the conviction under section 288a, but with respect to the conviction under section 288 denied a new trial, suspended judgment and placed appellant on probation conditioned among other things on a nine month confinement in the county jail. After hearing appellant had been determined not to be a sexual psychopath. The appeal is from the order denying a new trial as to the conviction under section 288. Pending the appeal appellant was granted bail.
The conviction relates to facts which occurred on August 12, 1950, around 6 p.m. Neva Heckman, aged 10, the prosecuting witness, testified that she had been swimming at the Dimond Park swimming pool in Oakland, which she left about closing time (about 6 p.m.); that she then made a purchase at the candy store in the park and that on the way out of the park she met on a trail the defendant, whom she had seen somewhere before (but not on that day); that she went off the trail with him to look for squirrels, that he pulled her over a hill into a sort of little cup and that he there did the acts alleged during which he twice stuck his finger up her private parts; that she screamed, that he threatened to kill her if she screamed, that she was crying very much so that she could not see well but that she saw an open pocket knife in his hand, that he pointed in the direction of the store down Fruitvale and ordered her to walk straight without turning around or he would kill her. She did and from the store phoned the police and her mother. She did not know how long the encounter with defendant took, probably about five minutes, to go to the store about one or two minutes. The witness Fredericks, employed at the store, testified that he verified on an electric clock that the call to the police was completed at 6:06 p.m. The little girl arrived two or three minutes before that.
At 7:30 that evening she was examined at Highland Hospital by Dr. McAllister who testified that there were no marks on her clothing or body except a bruise and reddening at the opening of the vagina and that by microscopy he found some red blood cells which indicated injury caused by entry into the vaginal region. No spermatozoa were found.
With respect to the identification of defendant Neva testified that the aggressor wore a yellow cable knit sweater, short sleeved, tan khaki pants with a zipper and buttons at the top and a belt with a 'W' on it; he was about five feet eleven inches tall, not only five feet ten and not six feet; about 187 pounds, had goo on his hair, slicked down; he was about 21. Three days after the event she identified defendant as the aggressor when she saw him alone in the office of police sergeant Brown; about an hour before the police had shown her a picture of defendant on top of a pile of pictures. However a brother of defendant testified that Neva affirmed that she was sure that he himself was the right man when she saw him with defendant's attorney at the courthouse. This was denied by Neva and her mother who was present at the time.
The witness Darlene Hatton testified that she had seen defendant on that Saturday at maybe a quarter after five, maybe later, before the ringing of the bell at 5:40. She was in her bathing suit and walking along the pool and he was standing outside the fence some 15 feet away. The fence consists of criss-cross thick wire in diamond pattern about 1 1/2 or 2 inches across. He attracted her attention by whistling at her; his hair was plastered down slick. She had seen him at Dimond Pool before probably twice. Later the lady employed in the candy store near the pool showed her and other children a picture of defendant and asked her whether she had seen him before; she said yes. That same day she was brought to a line-up in which she recognized defendant as the man of the picture and the one she had seen on Saturday. That was on August 17.
Police Sergeant Keith W. Brown testified that on August 15 he had interrogated defendant in the Juvenile Division, City Hall, Oakland. Defendant denied that he had been in Dimond Park on Saturday; he had not been there for months but in the past had gone there often. When the witness told him the accusation and asked him to tell the truth of what happened on August 12, he said 'he would rather not, that he wanted to talk to his father first, that his father had always told him never to admit anything.' He said to had been wearing suntan pants and a yellow sport shirt with sleeves. Defendant was then booked pending investigation. Police officer John F. Ferguson testified that he searched defendant when he was put in custody and found concealed under the arch of the sole of defendant's right shoe a knife with the blade wedged into the heel. Appellant testified that when he received a telephone call to come to the Oakland City Hall on that Tuesday he poked the knife in the heel of his shoe because he was so nervous, he did not know exactly what they had him accused of, and he thought it was assault with a deadly weapon or something like that. He had been working with the knife on his radio when he was called.
At the trial the position of defendant was that the prosecuting witness had made an honest mistake of identity and he tried to prove an alibi and that another person answering somewhat the girl's description had been seen in the neighborhood. He himself testified that he lives at 1031 Glendore Avenue, Oakland, together with his mother, his grandmother and his brother Robert, aged 19. The house is nine or ten blocks from the westerly entrance of the park. He had not been in any part of the park on August 12, or within two or three weeks before that. On that Saturday afternoon he had been away from home with his father and brother until after 4:15 p. m. He did something to his father's car together with his father until a little after 5 when his father drove away. He then did some painting to the side of the house. At about 5:30 he left the house to get some meat for dinner. His grandmother gave him a ten dollar bill to pay for it. He went direct to the Glenview Meat Market, four or five blocks from his home. He made his purchases there, cashed a check there, and then went home directly and brought the purchases and the change from the ten dollars to the kitchen. He went to the market and back in a 1936 Chevrolet. The kitchen clock said 5 to 6 when he came back. He never used any hair oil and there was no hair oil in the house. On August 12 he was 21, about six feet tall. His weight was somewhere between 175 and 190, between which point it varies. The expedition to the meat market, the time at which it took place, and some other parts of his testimony were corroborated by his grandmother and his brother. Clarence Richardson, the butcher at the market, who according to defendant had cashed the check, did not remember it. Richard Withoff, bookkeeper of the market testified that on the deposit slip which he made out for the bank on Monday morning August 14 there appears a check of $20 written by J. W. Evans which must have been received at the market sometime on Saturday, August 12. The witness did not know at what time on Saturday the check had been cashed or defendant had been at the market.
The following are defendant's contentions on appeal:
1. It was error to deny defendant's motion for a new trial since a street map of the city of Okaland not received in evidence in court was produced in the jury room by one of the jurors during the discussion of the jury.
The only evidence introduced in support of this allegation at the hearing of the motion for a new trial were two affidavits of jurors other than the one said to have produced the map. The prosecution objected because of the rule against impeachment of verdicts by affidavits of jurors. The court refused to admit the affidavits in evidence but ordered them filed. Appellant's main argument is that the rule declaring affidavits of jurors incompetent applies where the affidavits are introduced to show misconduct of jurors, mentioned as a ground for new trial in sec. 1181, subd. 3, Penal Code, but not where they are used to show that the jury has received some evidence out of court other than that resulting from a view of the premises, mentioned as a separate ground for granting of a new trial in sec. 1181, subd. 2, on which latter subdivision the motion was based.
The California cases do not support appellant's contention. Whether the affidavits show misconduct of jurors or receiving of evidence out of court they are introduced to impeach the verdict. The only exceptions recognized in California to the rule excluding impeachment of a verdict by jurors' affidavits are the ones as to chance verdicts contained in sec. 657, subd. 2, Code of Civil Procedure, and one initiated by this court in Williams v. Bridges, 140 Cal.App. 537, 35 P.2d 407, where the misconduct of a juror occurred before empanelment of the jury, or constituted false swearing on his voir dire examination. See People v. Gidney, 10 Cal.2d 138, 146, 73 P.2d 1186, 1191, where it is expressly stated that affidavits of jurors showing misconduct out of court 'or evidence received by them from outside sources' have been refused admission, citing People v. Reid, 195 Cal. 249, 232 P. 457, 36 A.L.R. 1435 (prejudicial statement by the bailiff to the jurors) and People v. Wong Loung, 159 Cal. 520, 114 P. 829 (reading of a prejudicial newspaper article by jurors out of court or during jury deliberations). See also People v. Long, 15 Cal.2d 590, 608, 103 P.2d 969. As the exclusionary rule differ in different jurisdictions the cases from other jurisdictions, e. g., federal cases cited by appellant, carry no weight here. The desirability of the exclusionary rule is debatable, 8 Wigmore on Evidence, sec. 2353, but the argument 'that public policy requires that the sanctity and stability of judicial determinations shall not be subject to the evidence of jurors who may be tampered with,' Saltzman v. Sunset Tel. etc. Co., 125 Cal. 501, 504, 58 P. 169, 170, whatever its validity, applies equally in the case of sec. 1181, subd. 2 and sec. 1181, subd. 3, Penal Code.
As there was no competent evidence of receiving evidence out of court we need not go into the question whether such evidence, had it been produced, would have availed appellant without proof that he had suffered injury from the production of the map out of court.
2. The testimony of the complaining witness is so incredible and inherently improbable that it is not entitled to any weight.
This contention is based on two grounds: First the testimony of the complaining witness that the whole encounter with defendant, during which different illicit acts were said to have taken place successively, had taken 'probably about five minutes.' No physical impossibility that these acts could have been completed during approximately that time appears, and it may be doubted whether all events testified to could not very well have been completed in approximately that time. Moreover the jury was entitled to conclude that the events described had happened but that the girl, who had originally answered that she did not know how long it took, made her estimate somewhat too short. Without physical impossibility or evidence so clearly false that reasonable minds may not differ in that regard, an appellate court cannot reverse on the ground of inherent improbability. People v. O'Moore, 83 Cal.App.2d 586, 189 P.2d 554; People v. Fisher, 86 Cal.App.2d 24, 194 P.2d 116. Second because of the too great accuracy with which the prosecuting witness described age, height and weight of defendant evidently introducing data which she had heard from others. Although the testimony that the aggressor was 21, 5 feet eleven, not more nor less, and weight 187 pounds is certainly suspect, such goes to the credibility of the witness which is for the jury only, and has nothing to do with inherent improbability of the evidence.
3. The evidence identifying the defendant as the aggressor is insufficient to sustain the verdict.
The contention is without merit. In People v. McCoy, 25 Cal.2d 177, 184, 153 P.2d 315, 318, the Supreme Court said: 'The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, and the uncertainties of witnesses in giving their testimony were matters solely for the observation and consideration of the jurors in the first instance, and for the consideration of the trial court on motion for a new trial. It has approved the finding of the jury, and on appeal this court may not disturb such finding and the action of the trial court unless we can say, as a matter of law, that there was no evidence to support the conviction.' Such is certainly not the case here. The identification of defendant by the complaining witness and the witness Darlene Hatton may be somewhat weakened by the fact that they had been shown a portrait of defendant prior to the identification and because of the circumstances under which they had seen him on the day of the act but it was evidence, certainly when we take into consideration that the witnesses declared that they had seen defendant before the day of the act, so that they could recognize him. The asserted mistaken identification of the brother of defendant as the culprit, to which said brother testified, is, even if believed, only a discrepancy to be solved by the jury. The alibi evidence was given solely by defendant and two of his nearest relatives and was such that a difference of some minutes in the time of the events to which they testified would have permitted appellant to be at the place of the crime at the time at which it took place. '(T)his line of testimony merely operated to produce a conflict in the evidence on the point of the appellant's presence at the scene of the attack, and it was for the jury to resolve.' People v. McCoy, supra.
The order is affirmed.
GOODELL, J., and JONES, J. pro tem., concur. --------------- * Subsequent opinion 246 P.2d 636.