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District Court of Appeal, Third District, California.


Cr. 1717

Decided: February 21, 1940

Robert B. Fowler, of Modesto, and A.G. Bailey, of Woodland, for appellant. Earl Warren, Atty. Gen., and J.Q. Brown, Deputy Atty. Gen., for respondent.

The defendant was charged with contributing to the delinquency of a minor, a misdemeanor, and after a jury trial, was found guilty, and from the judgment thereon, and from an order denying a motion for a new trial, this appeal is taken.

As grounds for appeal it is contended that the testimony of the complaining witness was not sufficiently corroborated; that the court erred in refusing to give a proffered instruction dealing with the question of alibi, and in refusing to give a cautionary instruction, which appellant claims should have been given on account of the nature of the charge against him.

At the time of the alleged offense the complaining witness was a boy over fourteen, and at the time of the trial was past fifteen, and in the first year of high school. The record discloses no evidence of coaching of the witness nor any passion or prejudice on the part of the jurors, nor is the story of the boy so inherently improbable or incredible as to appear to be the result of imagination or fabrication.

The defendant admitted that he was frequently in Modesto where the crime is alleged to have taken place, and that he often stayed at the home of a Mrs. Robinson, and asserted that his wife usually spent the night with him at the Robinson home. Other witnesses, however, testified that Mrs. Lucas usually stayed with other friends while defendant spent the night alone at the Robinson home. It is rather significant, and a fact of which the jury could take notice, that the defendant, who was an ordained minister and holding services in Modesto, could not substantiate any of his testimony as to dates from any of his church records or calendar.

The boy fixes one of the material dates in this case by the fact that on a particular Sunday evening he and appellant together saw the picture “Marie Antoinette”. Appellant, while denying that he saw the particular picture with the boy, admitted having seen that picture and admitted that they had together gone to this show house and had seen at least one other picture, and that he had, on other occasions, given the complaining witness passes to the theater. It is also not denied that defendant had and used such an automobile as referred to by the complaining witness. It is to be remembered, however, that the testimony of the complaining witness is not required by the statute to be corroborated. People v. Raich, 26 Cal.App. 286, 146 P. 907.

Appellant claims that on the particular day in question he was visiting at San Quentin prison, and therefore could not have been in Modesto. However, there is nothing in the record to show that appellant could not have been in San Quentin and still have reached Modesto by 8 o'clock in the evening of the day in question. It is upon that testimony appellant has based his defense of an alibi. Under these circumstances we cannot say that the refusal of the proffered instruction as to an alibi was error. No witness, other than the defendant, testified as to his whereabouts at the time of the alleged crime. It very probably was true that defendant was at San Quentin on the day in question, but still he could have been in Modesto at the time charged by the prosecution. There are certain contradictions in the testimony of the complaining witness, and some witnesses testified to facts somewhat at variance to the testimony of others, but the credibility of the witnesses is exclusively the province of the jury.

The jury were instructed that it devolved upon the prosecution to prove all the material allegations of the offense beyond a reasonable doubt and to a moral certainty before they could find the defendant guilty. Among the allegations as recited in the instructions, and which the jury were charged to find to be true before the guilt of the defendant could be fixed, was that the defendant was, on or about the 25th day of September, 1938, in the county of Stanislaus, and did then and there commit the particular acts complained of. We find no error in the refusal to give the instruction as to an alibi.

As to the refusal to give a cautionary instruction it cannot be said that the omission to give such an instruction is always a ground for reversal. The court is not bound to give such an instruction. People v. Anthony, 185 Cal. 152, 196 P. 47. Here the jury were told that the defendant was presumed to be innocent; the meaning of a reasonable doubt was defined; that they were not to act upon mere probabilities, and were admonished to disregard fanciful theories and unreasonable inferences.

Nor do we find any misconduct on the part of the district attorney, either in his examination of the witnesses nor his address to the jury. As to the latter, the court instructed the jury that arguments of counsel were not to be considered as proving any fact in issue.

An examination of the record before us reveals that appellant was ably represented and that the jury were, if they believed the evidence of the prosecution, fully justified in their verdict of guilty.

Finding no error sufficient to justify a reversal, the judgment and order are affirmed.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: THOMPSON, J.; TUTTLE, J.

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