PEOPLE v. WESTEK

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

PEOPLE v. WESTEK.

Cr. 4075.

Decided: May 28, 1947

Gladys Towles Root, of Los Angeles, for appellant. Fred N. Howser, Atty. Gen., and John F. Hassler, Deputy Atty. Gen., for respondent.

The defendant was convicted by a jury of several counts of violation of Penal Code Sections 286 and 288; Section 286 denouncing the crime of sodomy, and Section 288 denouncing another sex perversion, euphemistically described as lewdness. The asserted victims were boys. The defendant's application for probation was denied and he was sentenced to state's prison.

As is usual in such cases, the boys testified to the acts in question, and the defendant categorically and specifically denied the charges—which is about all that any defendant can do under such circumstances. A jury of three men and nine women convicted the defendant, and the judge who heard the testimony denied his motion for a new trial. When there is a conflict of evidence on an essential issue, appellate courts are bound by the determination of the jury. People v. Yankee, 79 Cal.App.2d 431, 179 P.2d 582; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Smith, 35 Cal.App.2d 73, 76, 94 P.2d 633; 8 Cal.Jur. 587, Sec. 581.

After specifically denying each charge in the information, the defendant testified on direct examination that he had not committed any act of sodomy, nor any lewdness, in the county of trial nor in any other county upon any boy. Thereupon, he was asked upon cross-examination if he had not committed such acts upon certain boys other than those named in the information. This he denied. Upon rebuttal these latter named boys testified that he did. These acts were not charged in the information and the boys testified that they were committed in counties other than Los Angeles County, the place of the trial.

The testimony adverse to the defendant was admitted over his objection, and he now argues it was inadmissible, being proof of other offenses not connected with those for which he was tried. In criminal cases in California, the trend of decision had been to allow evidence of other crimes generally, to show guilty knowledge, motive, intent, or a common scheme or plan. 8 Cal.Jur. 61. But in cases involving lewdness, the rule that evidence of other crimes is not admissible has not been relaxed. People v. Huston, 45 Cal.App.2d 596, 114 P.2d 607, and cases therein cited. The reason for this is stated in People v. Huston, supra, 45 Cal.App.2d at page 597, 114 P.2d at page 607:

‘This court on previous occasions has directed the attention of the profession to the reasons for this rule, which are so aptly stated in the universally acknowledged pronouncement of Lord Chief Justice Hale on the subject of the crime of rape, which also applies to offenses interdicted by section 288 of the Penal Code. It is as follows:

“It must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused though never so innocent; (and we should) be the more cautious upon trials of offenses of this nature, wherein the court and jury may with so much ease be imposed upon without great care and vigilance; the heinousness of the offense many times transporting the judge and jury with so much indignation that they are over hastily carried to the conviction of the person accused thereof by the confident testimony sometimes of malicious and false witnesses.”

And the same rule of exclusion is applicable in sodomy cases. People v. Wyett, 49 Cal.App. 289, 193 P. 153; People v. Singh, 121 Cal.App. 107, 8 P.2d 898.

The only theory upon which the testimony may stand in the record in this case is that the defendant himself opened the door to its reception. The argument in support of this theory runs as follows: Section 1323 of the Penal Code permits cross-examination upon any matter testified to by a defendant in chief. It is asserted that in People v. Henry, 40 Cal.App.2d 186, 104 P.2d 525, a situation similar to the case at bar was considered by this court, but if it was, it is not mentioned in the opinion. Therefore, so runs the argument, applying general legal reasoning to this situation, the defendant opened the door to the introduction of the testimony by his sweeping and all-encompassing denials, and the testimony was properly admissible as rebuttal. See 20 Am.Jur. 263; People v. Brac, 73 Cal.App.2d 629, 167 P.2d 535.

The evidence of the other boys was collateral to any issue in this case and was immaterial, unless, as stated, the door for its reception was opened by the defendant himself. The controlling rule is set forth in People v. McDaniel, 59 Cal.App.2d 672, at page 677, 140 P.2d 88, at page 90: ‘The argument that defendant's counsel ‘opened the gates' is unavailing. An error that is prejudicial is no less so because it results from a lack of knowledge on the part of either counsel or both. Legitimate cross-examination does not extend to matters improperly admitted on direct examination. Failure to object to improper questions on direct examination may not be taken advantage of on cross-examination to elicit immaterial or irrelevant testimony. The so-called ‘open the gates' argument is a popular fallacy. ‘Questions designed to elicit testimony which is irrelevant to any issue in the case on trial should be excluded by the judge, even though opposing counsel has been allowed, without objection, to introduce evidence upon the subject.’ 27 Cal.Jur. p. 74. ‘$It is a settled rule that cross-examination as to matters irrelevant to the issue may and should be excluded—even though, in some cases, testimony relative thereto was elicited upon direct examination—and that a party may not, under the guise of cross-examination, introduce evidence that is not competent within the meaning of the established rules.’ 27 Cal.Jur. p. 106.'

Therefore, under the circumstances of this case, it was error to admit evidence of other crimes over defendant's objection. And, obviously, such error may not be cured by the provisions of Sec. 4 1/212, Art. VI of our Constitution.

Having come to this conclusion, it is unnecessary to discuss the questions of corroboration, or the instructions given.

The judgments and order appealed from are, and each of them is reversed.

DRAPEAU, Justice pro tem.

YORK, P. J., and WHITE, J., concur.