Summary
In People v. Soto (1909) 11 Cal.App. 431, 434, the court found a "formal" election where the prosecution specifically stated, "`The prosecution will stand upon the first act of sexual intercourse which they claim that the defendant had with the prosecuting witness...." (Italics added.)
Summary of this case from People v. HernandezOpinion
Crim. No. 124.
October 1, 1909.
APPEAL from a judgment of the Superior Court of San Luis Obispo County, and from an order denying a new trial. E. P. Unangst, Judge.
The facts are stated in the opinion of the court.
Lamy Putnam, and A. E. Campbell, for Appellant.
U.S. Webb, Attorney General, and George Beebe, Deputy Attorney General, for Respondent.
Information for rape of female child under the age of sixteen. Verdict of guilty and sentence of twenty years in state prison. Appeal from judgment and order denying defendant's motion for a new trial.
The crime is charged in the information to have been committed on or about the fifteenth day of January, 1906. The district attorney, in his opening statement, said that he would prove that the defendant had intercourse with the prosecutrix once in January, 1906, and twice in the month of February prior to the 20th of that month, whereupon the defendant moved the court to require the district attorney to select the date or particular act as to which he would ask a conviction. The motion being granted, the district attorney declared that he would stand upon the act of sexual intercourse which would fasten upon the defendant the paternity of a child of which the prosecutrix was delivered June 9, 1907. A more specific selection being demanded, the district attorney then stated that he would stand upon the first act proved, and, upon further objection, made his selection in the following language: "The prosecution will stand upon the first act of sexual intercourse which they claim that the defendant had with the prosecuting witness, and which act occurred some time either during the month of January, or during the month of February, up to the 20th of February of the year 1906, it being the first act of intercourse claimed to have taken place between the prosecutrix and the defendant."
This selection was still objected to and it is now urged was not sufficiently specific to enable the defendant to know which act was selected as the basis of the prosecution. If the selection or election rested upon the above, we might be disposed to sustain the appellant's contention that it was insufficient, but after the formal election by the district attorney above mentioned, the court said: "The act you select is the first act of sexual intercourse between these parties, and you claim it occurred in the latter part of January or the first part of February and prior to the 20th day of February. . . . And you admit that there were two subsequent acts at about that date, prior to the 20th day of February." To which the district attorney replied: "One or two; I don't know."
Accepting the language of the court as the selection of the one specific offense for the commission of which the defendant was to be put upon trial, we think it comes within the requirements prescribed in People v. Williams, 133 Cal. 165, [ 65 P. 323].
The language of Justice Temple on page 166 of 133 Cal. [ 65 P. 323] of the opinion in that case is applicable to, and meets the presentation of, the appeal here upon the sufficiency of the evidence to support the verdict. If the evidence of the prosecuting witness is entitled to credence, the case was established and the verdict a proper one. The credibility of the witnesses was for the jury, in the first instance, subject to review by the trial court upon the motion for a new trial, and no question of this kind can be considered by this court.
While the attorney for defendant was arguing the case before the jury it was suggested to the court that the governor had declared the day (October 30, 1907) to be a legal holiday. This was followed by other proclamations creating a series of holidays lasting until December 2, 1907, and during this period the jurors were not put in charge of an officer but were allowed to separate and go about their respective occupations. It is contended this was error. It is not necessary to pass upon this question, as the record discloses that the defendant consented to the various adjournments of the case between the dates named, and, in the absence of any affirmative showing of injury or prejudice from an irregularity to which a defendant has consented, it cannot be regarded as ground for a new trial.
Whether or not one of the jurors was guilty of misconduct depended upon the truth of the affidavits presented to the trial court on the motion for a new trial. The affidavits filed by the respective parties were conflicting, and the finding made by the trial court upon the question of fact will not be disturbed.
While the trial court ought not, except there be special reasons therefor, to permit the re-examination on rebuttal of the prosecutrix upon matters about which she was examined in chief, this matter rests largely in the discretion of the trial court, and its action will not be disturbed unless a clear case of abuse is shown. Such a showing is not made here. ( People v. Rigby, ante, p. 275, [ 104 P. 840].)
In respect to the admission of evidence of other acts of sexual intercourse, it was said in People v. Castro, 133 Cal. 12, [ 65 P. 13], in the majority opinion, that those occurring both before and after the principal act charged may be introduced in evidence as tending to sustain the main allegation. This was affirmed in People v. Williams, 133 Cal. 168, [ 65 P. 323], where Temple, J., says other like offenses may be shown to prove that the parties are lewdly inclined, and that the barriers of modesty have been broken down with reference to each other — not primarily to prove habitual or continuous criminality or other offenses. And again, in People v. Koller, 142 Cal. 624, [76 P. 501], Lorigan, J., after laying down the rule that acts occurring both before and subsequent to the act constituting the crime charged may be admitted, adds: "Not to prove distinct offenses, or continuous criminality, but as corroborative evidence tending to support the one specific offense for which the defendant is being tried." While all the authorities relied upon in support of this rule limit the application to cases involving intercourse by consent, it is, nevertheless, held applicable in this state in the case of statutory rape of a child under the age of consent. ( People v. Mathews, 139 Cal. 527, [ 73 P. 416].)
The evidence introduced here took an exceedingly wide range in this regard; the trial becoming, in effect, a trial of the issue suggested by the act first selected by the district attorney, to wit, the one resulting in prosecutrix's pregnancy. The examination as to this act stopped only with the question: "Who is the father of the child?" While proof of pregnancy of a child under the age of consent has been held to be evidence that the statutory crime of rape has been committed, it has never been held admissible, so far as we are aware, except it tends to prove the corpus delicti. ( People v. Tarbox, 115 Cal. 57, 62, [46 P. 896].) That was not the case here. We know of no case extending the rule declared in People v. Castro, 133 Cal. 12, [ 65 P. 13], to include the right of the district attorney to produce and exhibit before the jury a child born of some one of the collateral acts of intercourse six or more months removed from the act constituting the offense. The error, however, if any, committed by the introduction of this kind of testimony was rendered harmless by the admissions of the defendant in open court to the same effect.
While an objection to each of the two direct questions propounded to the prosecutrix as to who was the father of the child born to her on June 9, 1907, was sustained, the district attorney was permitted to ask the prosecutrix over the objection of defendant: "Now, from the time that you had this act of sexual intercourse with your Uncle Dave which you say you told Ross Soto [defendant] about until you had this child on June 9th last, had you had sexual intercourse with anybody else besides the defendant?" To which she replied: "No, sir." In line with this a series of questions were propounded to the prosecutrix as to her comparative liking for the defendant and her Uncle Dave (it being admitted that the prosecutrix had intercourse with the latter prior to the date of her intercourse with defendant), with a view of further strengthening the foregoing statement as to the paternity of the child. Some of these were: "Did you like him [defendant] up to the time that you had left in November?" "Did you like your Uncle Dave at that time?" "Now, which one did you like better at that time, Josie, your Uncle Dave or the defendant?" "You think a great deal of him [defendant]?" "How long did you continue to think a great deal of him?" "A. Till he got me in the family way." If the instructions of the trial court had not been so full and complete in this regard, it would be difficult not to adopt the view of appellant that the jury was misled by the persistent efforts of the district attorney to secure a conviction upon the act which resulted in the conception of the child born June 9, 1907, notwithstanding another act was selected by the court and such selection assented to by the district attorney. Unquestionably the act alleged in the information, by the manner of conducting the case, was rendered less important than the matter of the paternity of the child, and the latter was urged upon the jury as if this were the matter for determination. This course of the district attorney is not to be commended, but as the jury were instructed by the court that they must, in arriving at a verdict, confine themselves to the one act selected, the one taking place between January 15, 1906, and the twentieth day of February, 1906, and that they must acquit the defendant if they were not satisfied of the commission of this act, notwithstanding they were convinced beyond a reasonable doubt as to his having had illicit relations with the prosecutrix at some subsequent date, we must assume the jury obeyed the court's instructions in this respect.
As hereinabove stated, the examination took a wide range. This was true as to the questions of the people and also those propounded on behalf of defendant. While demand was made by defendant for the selection of a particular act as the basis of a conviction, the testimony of both parties with respect to the continued relations between the defendant and the prosecutrix was introduced as if the offense were laid with a continuando. Equally unlimited was the examination as to the relations of the prosecutrix with her uncle and her statements in respect to those relations; and in the same manner the relations of defendant with his wife were inquired into by the district attorney, both on the cross-examination of the wife and the cross-examination of the defendant. We are not prepared to say that these questions were not cross-examination, and in so far as they were immaterial, or irrelevant, or incompetent, the manner of conducting the case relieved the evidence elicited by them from any harmful effect.
Recognizing the rule that each of the acts between the defendant and the prosecutrix constituted a separate and distinct offense for which he may be prosecuted, the instructions given by the court were so worded that the conviction in this case could not be predicated upon any act but that selected by the court, with the district attorney's assent, and, had he been acquitted, there would have been no doubt as to which act was covered by such an acquittal. While under our system of pleading one particular act or some special time is required to be selected for the purpose of a conviction in cases of this character, the records in this court disclose that this offense, the debauching of a child, is frequently accompanied by a series of acts of sexual intercourse, and the punishment for this most infamous crime ought not to be made to hang upon a technical application of the rules of pleading and evidence, where the only question is which one of innumerable acts was selected by the district attorney as the basis of the prosecution.
The judgment and order are affirmed.
Allen, P. J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 30, 1909.