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District Court of Appeal, Second District, Division 1, California.


Cr. 3436

Decided: March 20, 1941

Walter C. Harbert and S.C. Stoner, both of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Gilbert F. Nelson, Dept. Atty. Gen., for respondent.

In an information filed by the district attorney of Los Angeles county, defendant was charged with two counts of statutory rape and two counts of violation of section 288 of the Penal Code. Following his plea of not guilty a jury by its verdict found defendant guilty of the two charges of rape and recommended punishment in both cases by imprisonment in the county jail. Acquittal verdicts were returned as to both counts charging violation of section 288 of the Penal Code. Following denial of defendant's motion for a new trial, sentence was pronounced against him in accordance with the jury's recommendation. From both judgments of conviction and from the order denying his motion for a new trial, defendant prosecutes this appeal.

The main ground upon which a reversal is urged is that the evidence is insufficient to justify the verdicts. The victim of defendant's alleged felonious assaults was a young girl of the age of ten years. It is not claimed that the testimony of the prosecutrix, if capable of belief, is not alone sufficient to support the verdicts, but in this regard it is earnestly urged that the testimony of the victim as to the manner in which the assaults were accomplished, coupled with contradictions appearing in her evidence, must be held by this court to be so inherently unbelievable as to amount to no evidence at all.

Epitomized, the facts testified to by the complaining witness are that the act of illicit intercourse charged in count 1 of the information took place on or about July 1, 1940. That several days prior to July 4th the prosecutrix went to the residence of defendant, which was situated across the street from where she lived. Upon this occasion defendant gave her some old clothing which she took home to her mother. About three days later the girl again visited the home of defendant, at which time the latter was on the front porch. Defendant invited the complainant to come into the house and escorted her into the bedroom. According to the testimony of the victim, the act of intercourse was accomplished while she was lying on the bed with her legs up on the shoulders of defendant and while the latter was “standing up, kind of bent over”. After being admonished by defendant not to tell her mother, and receiving from him a five-cent piece, the girl returned home.

Concerning the facts upon which count 2 was predicated, the prosecutrix testified that on Friday before the fall term of school commenced, which latter date was agreed to be September 9, 1940, she again visited defendant's home, when he invited her into the house to see his new rugs. This time defendant shoved her through the front door and took her into the same bedroom, whereupon he accomplished an act of sexual intercourse upon her in the same manner as on the previous occasion. Although the prosecutrix testified that the defendant had intercourse with her some ten or eleven times, it is conceded that at no time did she make complaint to her mother or any member of her family, but that she did relate the occurrences to a youthful girl friend. Defendant stoutly maintained his innocence, both to the arresting officers and as a witness in his own behalf at the trial, and produced several witnesses who testified to his previous good character. Defendant admitted knowing the complainant for about a year and that she and other young girls came to his home from time to time, and further, that he gave them different articles of small value, but denied that the victim was inside his home at any time. The examining physician from Juvenile Hall testified that upon examination made September 24, 1940, she found the hymen of the prosecutrix ruptured and dilated; that in her opinion the rupture was not of recent origin and would permit sexual penetration.

Appellant vigorously asserts that it would have been physically impossible for the acts of sexual intercourse to have been accomplished in the manner described by the complaining witness. Nowhere in the record do we find any evidence as to the height, weight or build of either appellant or his alleged victim. In this regard it must be borne in mind that the jury had an opportunity to observe both appellant and the prosecutrix and to determine from such observation the physical possibility of the acts being consummated in the manner described by the girl. In the absence of evidence to the contrary, it must be assumed that the conclusions and inferences drawn by the jury in this regard give support to the verdicts rendered. As was said in People v. Burnette, 39 Cal.App.2d 215, 102 P.2d 799, 804, “In almost every appeal in a sex case involving abnormal actions on the part of the accused it is contended that such abnormality is beyond belief. It is, of course, not normal behavior for a man to seize a woman by the throat on a well-lighted street, to beat her, to transport her to a rock quarry, to then forcibly rape her, and then to wait until daylight before leaving. But criminal behavior is seldom normal.” Appellant's claim that the testimony of the prosecutrix is most unusual is answered by the following quotation from the case of People v. Collier, 111 Cal.App. 215, 226, 295 P. 898, 902:

“* We understand that an appellate court can reject the positive testimony of a witness only when that testimony is ‘inherently improbable’. It is not sufficient that the testimony may disclose circumstances which are unusual. Where the testimony is such that within the knowledge of reasonable men it cannot be true the appellate court might assume that knowledge and hold the testimony legally insufficient, but to do so the court must act on what is equivalent to judicial notice. * Let it be said here that the appellate court does not sit as a jury to determine the issues of fact upon the credibility of the testimony of the witnesses but, when the attack is made on these grounds, it is necessary for the appellant to go further and show that the testimony which we are asked to reject is inherently improbable or that it was incompetent, or for some other reason, not legal evidence upon which the jury could rely.” (Italics added.)

While the girl's testimony as to the manner in which the lustful acts were accomplished, coupled with alleged variances or claimed inconsistencies or contradictions appearing in her evidence, undoubtedly afforded an opportunity for a persuasive argument to the jury against the reliability of her testimony, we find nothing therein from which a reviewing court could justly conclude that her entire testimony is per se unbelievable and that it was therefore the jury's duty not only to disregard it but to accept the defendant's denial of any wrongdoing on his part. As was said by this court in People v. Loehr, 35 Cal.App.2d 1, 4, 94 P.2d 390, 392, “* Obviously reviewing judges are in no position to determine the credit which should be accorded to witnesses or to weigh their testimony. It is undoubtedly for such reasons that our Constitution provides that appellate courts are not authorized to review evidence except where, on its face, it may justly be held that it is insufficient to support the ultimate issue involved, in which case it is not a review of a question of fact, but purely one of law. People v. Haydon, 18 Cal.App. 543, 553, 123 P. 1102, 1108, 1114. With reference to when testimony may be strictured by an appellate court as unbelievable per se, it was said in the last-cited case: ‘A statement, to bear upon its face the brand of improbability, or which may be said to be unbelievable per se, must involve, we think, a claim that something has been done that it would not seem possible could be done under the circumstances described, or involve conduct that no one but a person of a seriously calentured mentality would be likely to do.’ *” Even though we were to concede that a mere reading of the transcript in this case might leave one in some doubt on the question of defendant's guilt, there is certainly enough in the evidence to sustain the verdicts of the jury, which saw and heard the various witnesses and was in a much better position to determine the truth than a court that does not possess such an advantage.

It is next contended by appellant that the verdicts finding him guilty of rape and not guilty of violations of section 288 of the Penal Code are inconsistent and compromise verdicts. This claim is without merit. Under careful and minute examination the prosecutrix repeatedly testified that defendant neither caressed nor fondled her, and that he took no liberties with her body apart from committing the acts of rape charged against him. What appellant did with reference to removal of certain of the girl's clothing might well have been considered by the jury as preliminary acts tending toward the accomplishment of the crime of rape and therefore constituting the commencement of its consummation. Consequently, under the facts of the instant case, such conduct and acts were not punishable under section 288 of the Penal Code. People v. Parker, 74 Cal.App. 540, 547, 241 P. 401. Neither does the fact that the appellant was convicted of two counts of rape and acquitted of a like number of counts charging violation of section 288 mean that the verdicts of the jury were arrived at by way of compromise. People v. Christensen, 32 Cal.App.2d 380, 382, 89 P.2d 1095.

While one may be convicted of rape upon the uncorroborated testimony of the prosecutrix if the jury believes her testimony, nevertheless, in the instant case the prosecutrix was corroborated, for there was present evidence of several proclivities on the part of appellant toward the complainant and other children of immature years that are commonly found in the behavior and conduct of men charged with sex crimes upon children. We refer to their presence in the home of appellant and his giving them gifts of clothing, delicacies and money.

Finally, appellant charges prejudicial error in certain comments made by the trial judge relative to the exclusion of spectators from the courtroom during the trial. In this connection, the record discloses that in the presence of the jury the following proceedings transpired:

“The Court: People versus Stangler. Let the record show the defendant and his counsel are present. Will you stipulate, gentlemen, that the jury is all present?

“Mr. Visel (Defendant's counsel): Yes, we stipulate.

“Mr. Loucks (Deputy District Attorney): We stipulate.

“The Court: How about the exclusion of spectators?

“Mr. Visel: No, your Honor, there are no motions made.

“The Court: You mean that you want these people who have long ears and who want to hear something smutty sitting in here? Our rule is that we will have to go to a room too small to let them in, if that is your desire.

“Mr. Visel: I resent your remarks. I think they are error. May we approach the bench?”

Thereupon certain proceedings not here germane were had outside the presence of the jury, after which the trial proceeded without any order excluding spectators.

Appellant earnestly contends that the comments of the court tended to create in the minds of the jury a feeling of prejudice against him because of the insinuation therein contained that defendant sought, in violation of a court rule, to inflict upon the young prosecutrix the mental anguish and humiliation attendant upon her recital before courtroom spectators of the sordid details contained in her testimony.

The sixth amendment to the Constitution of the United States and section 13 of article I of the California state Constitution guarantee to every person charged with crime the right to a public trial. As was said by Judge Cooley in his work upon constitutional limitations, at page 383: “The requirement of a public trial is for the benefit of the accused; that the public may see that he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility, and to the importance of their functions; and the requirement is fairly observed if without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn hither by a prurient curiosity, are excluded altogether.”

In the case at bar the vice of the trial judge's remarks lies in the fact that he did not thereby evince a desire to exclude only those people who were in attendance because of morbid curiosity, but clearly indicated that under the rule followed by him it was his purpose to exclude all spectators. Had he put into effect his declared intention and excluded all spectators, his action in so doing would have been in direct violation of the provision of the Constitution which says that a party accused of crime has a right to a public trial, and would have required a reversal of the judgment. People v. Hartman, 103 Cal. 242, 37 P. 153, 42 Am.St.Rep. 108. A defendant charged with crime is entitled to certain rights under the Constitution, and to deprive him of any one of them is to deny him that fair and impartial trial which is his right. In People v. Hartman, supra, 103 Cal. at page 245, 37 P. at page 154, 42 Am.St.Rep. 108, we find the following pertinent and expressive language: “The trial should be ‘public,’ in the ordinary common-sense acceptation of the term. The doors of the court room are expected to be kept open, the public are entitled to be admitted, and the trial is to be public in all respects, as we have before suggested, with due regard to the size of the court room, the conveniences of the court, the right to exclude objectionable characters and youth of tender years, and to do other things which may facilitate the proper conduct of the trial.” Being without power to order the exclusion of spectators in the absence of defendant's approval, the propriety of suggesting it is open to serious question. Indeed, in conceivable circumstances, such a suggestion could be highly prejudicial.

In the case now under consideration the order of exclusion was not made, but we must nevertheless determine whether the substantial rights of the defendant were prejudiced by the remarks made by the court in giving expression to his views concerning the exclusion of spectators from the courtroom. When we consider the testimony of the prosecutrix that she was the victim of appellant's lust on ten or eleven different occasions; that the jury believed her testimony and convicted appellant on all counts of rape charged against him and then determined that as punishment he be confined in the county jail rather than the penitentiary, we are forced to conclude that the deliberations of the jury and the verdicts arrived at by it were not motivated or influenced by any bias, prejudice or inflamed state of mind toward appellant on the part of the triers of fact. Such being the case, coupled with the fact that the trial proceeded with the doors of the courtroom open to the public, a reversal of the judgments is not warranted.

For the reasons herein stated, the judgments and the order denying the motion for a new trial are, and each is, affirmed.

WHITE, Justice.

We concur: YORK, P.J.; DORAN, J.