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District Court of Appeal, Second District, Division 2, California.


Cr. 3170

Decided: February 17, 1939

Gladys Towles Root, of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Frank Richards, Deputy Atty. Gen., for the People.

Defendant was convicted after trial by jury of violating section 288 of the Penal Code on two occasions. This appeal is from the judgment and order denying his motion for a new trial.

Viewing the evidence most favorable to the People (respondent), the essential facts are:

July 1 and 2, 1938, respectively, defendant committed acts prohibited by section 288 of the Penal Code.

Defendant relies for reversal of the judgment on the following propositions:

First: The evidence is insufficient to sustain the judgments.

Second: The trial court committed prejudicial error in receiving in evidence, over defendant's objection that it was hearsay and no proper foundation had been laid, the following testimony of the prosecutrix's mother:

“Q. By Mr. Ferguson: Will you tell us what, if anything, Cornelia told you on a prior occasion?

“A. Cornelia was so small; I was sitting her on the toilet in the bathroom and she said that John Adams had taken his hand and put it on her body, as she called her privates. And I asked her how John was dressed and she said he was in his pyjamas. But Cornelia wasn't more than three years old at the time and I just—children always follow you around the house and into the bathroom, and I paid no further attention to it.”

Third: The district attorney committed prejudicial misconduct in his argument to the jury.

Fourth: The trial court committed prejudicial error in refusing at defendant's request to give the following instructions to the jury:

(a) “By reason of the fact that charges of the nature involved in this case can easily be made and are often not easy to disprove, I instruct you that it is your duty to treat with great care and caution the testimony of the prosecutrix Cornelia Clark. You are not to be moved by passion, sympathy, or prejudice to find a verdict of guilty on any count of the information and unless you are convinced beyond a reasonable doubt from the evidence that the defendant is guilty as charged on one or more of the several counts of the information, you should find the defendant not guilty.”

(b) “That you are not to draw any inference whatsoever from the fact that the Court ruled as a matter of law that the witness Janet Stokes was not competent to testify in this case. This fact has no place whatsoever in your deliberations as to the guilt or innocence of the defendant, and you shall not surmise as to whether what the child's testimony might have been had she been allowed to testify in the case.”

Defendant's first proposition is untenable. We have examined the record and in our opinion there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to sustain each and every material finding of fact upon which the judgments of guilty were necessarily predicated. The prosecutrix gave positive testimony as to each of the acts upon which the judgments of guilty were based, and no useful purpose would be subserved by setting forth the sordid details of such testimony.

Defendant's second proposition is likewise untenable. The law is settled that in a prosecution for violating section 288 of the Penal Code the fact that the child involved has made complaint of the outrage is evidence which is admissible as an exception to the hearsay rule. People v. Morcumb, Cal.App., 82 P.2d 714. In the present case the proper foundation for the admission of the testimony had been laid, and therefore the objections stated by defendant to the admission of this evidence (which objections are the only ones we will consider) are without merit.

Defendant's third proposition is also without merit. During the course of the district attorney's argument to the jury the following occurred:

“Mr. Ferguson: You remember the Dyer case, the Northcott case—

“Mr. Cantillon: I am going to object to that as improper argument, inflammatory and ask that it be stricken from the record and the jury instructed to disregard it.

“Mr. Ferguson: I am willing that should be done your Honor.

“The Court: Very well. The last remark, whatever it was, is stricken.

“Mr. Cantillon: I move that the jury be instructed to disregard it, your Honor. He just mentioned the Dyer case, your Honor.

“Mr. Ferguson: Please forget the Dyer case. I don't claim it is proper in this case. I am not silly and I know none of you men and women are silly.”

It will be seen from an examination of the record as set forth above that, upon defendant's objecting to the district attorney's statement, the latter consented that the statement be stricken from the record, which was promptly done. It is therefore evident that, though the remark was improper, its injurious effect, if any, upon the jury was eliminated by the prompt objection of defendant's counsel and the court's ruling thereon.

It was not error to refuse the instruction set forth in paragraph (a) of defendant's final proposition, for the reason that the trial court did instruct the jury as follows: “That a charge of this nature is particularly difficult for a defendant to clear himself of. No charge can be more easily made, and none more difficult to disprove. From the nature of the case, the complaining witness and the defendant are generally the only witnesses. The law does not require in this character of case that the prosecuting witness be supported by another witness or other corroborating circumstances, but does require that you examine her testimony with caution.”

It is evident from a reading of the foregoing instructions that the principle of law set forth in the instruction requested by defendant and refused was covered in the instructions actually given by the court.

It was likewise proper to refuse the instruction set forth in paragraph (b) of defendant's final proposition. During the course of the trial Janet Stokes, a five year old child, was called as a witness, but the trial court ruled that she was not qualified to testify. The substance of the instruction requested by defendant was given by the court, as will be seen from a reading of the instructions set forth supra. Among other instructions the trial judge instructed the jury that, “You are to be governed therefore solely by the evidence introduced in this trial and the law as given you by the Court”. It is obvious that this instruction in its effect upon the jury was identical with instructing the jury that, “You are not to base your verdict upon any evidence not introduced during the trial”.

For the foregoing reasons the judgment and order are and each is affirmed.

I concur in the judgment. In my opinion the trial court erred in receiving in evidence the testimony of the mother of the prosecutrix concerning statements of the child two years before the incidents which form the basis of the charges against defendant. The error, however, has not resulted in a miscarriage of justice and does not justify a reversal.

McCOMB, Justice.

I concur: CRAIL, P.J.

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