PEOPLE v. KEARNEY (1941)

From a judgment of guilty of violating section 288 of the Penal Code after trial before a jury, defendant appeals. There is also an appeal from the order denying his motion for a new trial.

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

First: There is a prejudicial inconsistency in the following instructions of the trial court:

A.

“Section 288 of the Penal Code provides that any person who shall wilfully and lewdly commit any lewd or lascivious acts * * * upon or with the body, or any part or member thereof, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or such child, shall be guilty of a felony.”

B.

“The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law or to injure another, or to acquire any advantage.”

C.

“The Court instructs the jury that it is wholly immaterial on what day or night the offense charged in the information was committed, provided you believe from the evidence it was committed, and that the same was committed within three years prior to the filing of the information in this case.

“Second: The testimony of the prosecuting witness relative to the manner in which defendant is alleged to have committed the acts constituting a violation of section 288 of the Penal Code is inherently improbable, and therefore there is no substantial evidence to sustain the implied finding of fact of the jury that defendant committed the acts charged against him.”

Defendant's first proposition is tenable and is governed by the following pertinent rules of law:

(1) An essential element of the crimes defined by section 288 of the Penal Code is the intent with which the prohibited acts are done or committed. (People v. McCurdy, 60 Cal.App. 499, 502, 213 P. 59.)

(2) The specific intent required to constitute a violation of section 288 of the Penal Code is that the prohibited acts be accompanied by the intent “of arousing, appealing to, or gratifying the lust or passions or sexual desires” of the defendant or of the child involved in the alleged offense. (People v. McCurdy, supra; sec. 288, Pen. Code.)

(3) When instructions are inconsistent or conflicting, such inconsistencies or conflicts constitute reversible error, if the substantial rights of the defendant have been affected. (People v. Harris, 169 Cal. 53, 69, 145 P. 520; People v. Westlake, 124 Cal. 452, 457, 57 P. 465; see also, 8 Cal.Jur. [[[[1922] 633, sec. 608.)

Applying the foregoing rules to the instructions given by the court in the instant case, it appears that instruction A, supra, correctly instructed the jury. However instruction B, supra, in effect told the jury that, in order to constitute a violation of section 288, it was not required to find that defendant had any specific intent. Thus the two charges gave the jury diametrically conflicting instructions upon one of the essential elements of the crime with which defendant stood charged; and, since we cannot determine which instruction the jury followed, this error was prejudicial to the substantial rights of the defendant. (People v. Snyder, 15 Cal.2d 706, 710, 104 P. 2d 639.)

The foregoing error was accentuated by the giving of instruction C, supra, since this instruction, when read in the light of the other two instructions which were given, in effect, instructed the jurors that, if they believed that defendant committed the acts charged against him, they should find him guilty, irrespective of the intent with which the acts were committed.

In view of the conclusion which we have reached, it is unnecessary for us to pass upon defendant's second proposition. It is to be noted, however, that there was a direct conflict in the testimony, and that defendant urges his second proposition with earnestness, calling attention, not only to discrepancies in the testimony of the prosecutrix, but to her extraordinary statement that, although she was only 10 years old, the defendant had intercourse with her while both of them were standing on their feet. This contention of defendant finds substantial support in the decisions of our Supreme Court in People v. Adams, 14 Cal.2d 154, 93 P.2d 146, and People v. Headlee, 18 Cal.2d 266, 115 P.2d 427. In People v. Adams the testimony on behalf of the prosecution was stronger than the testimony introduced by the People in the instant case.

For the foregoing reasons the judgment and order are and each is reversed and a new trial is ordered.

I dissent. To reverse the judgment in this case upon the technical point ascribed in the majority opinion is hypertechnical. In order to demonstrate the injustice of reversing the judgment upon the ground stated it will be necessary to state the accusations and the evidence which governed the deliberations and the verdict of the jury.

The information against defendant contained three counts: (1) violation of section 288 of the Penal Code on March 22, 1941; (2) violation of section 288 on the 13th of March, 1941, and (3) commission of rape on March 13, 1941. Mary Louise Lence, 10 years of age, was the victim named in each count. Prior to the submission of the case, upon motion of the district attorney the third count was dismissed. Verdicts of guilty were returned on counts 1 and 2. Thereafter a new trial was granted as to count 1 on the ground that the court had misdirected the jury. I shall discuss all four assignments.

Mary lived with her parents on property belonging to appellant. On the afternoon of the 13th day of March, Mrs. Kearney telephoned Mrs. Lence and requested Mary to come over for a visit. Mary arrived at the Kearney home about 1 o'clock in the afternoon and shortly after her arrival, she testified, a large dark–haired woman called on Mrs. Kearney who accompanied the lady to the front room. Mary testified that while Mrs. Kearney and the stranger were in the living room, she stayed in the kitchen with Mr. Kearney; that he was frying fish; that he turned the flame low, opened the door leading to the bath room; that he put her against the door and removed her panties and performed the act described in count three of the information; that his efforts to penetrate were unsuccessful; that while she was thus standing against the door which stood open into the kitchen, she could see the bath tub containing clothes and could see the bath room wall.

The trial consumed the greater portion of two days commencing June 11, 1941. Mary's testimony required practically one whole day. We shall return to a consideration of the facts after disposing of the alleged errors in the instructions.

There is no inconsistency in instructions A and B. As stated in the second instruction the word “wilfully” when applied to intent implies simply a purpose to do the act with which defendant is charged. When a man is engaged in the commission of a crime his mind is not occupied with the consideration of whether the act in which he is engaged is a violation of law. His primary thought is to do the thing at hand. Therefore in determining whether a person did an act wilfully, the jury's function is to determine whether defendant purposed to do the act of which he is accused. Appellant relies upon the case of People v. Snyder, 15 Cal.2d 706, 104 P.2d 639. This was a prosecution for attempted murder. There the court instructed the jury “that a person is presumed to intend to do that which he voluntarily and wilfully does in fact do and is presumed to intend all the natural, probable and usual consequences of his acts”. That was, of course, prejudicial for the reasons (1) that the crime of attempted murder requires proof of a specific intent to kill the victim, and (2) that such intent must be proved. In that case, the trial judge even refused an instruction to the effect that the firing of a gun at the victim in itself creates no presumption of law that defendant intended to murder the person fired at. However, it was held by the Supreme Court impliedly that the instruction, while prejudicial, as applied to the charge of attempted murder, would not have been prejudicial had it been limited solely to those offenses charged in the indictment that did not require proof of a specific intent.

In making proof of a lewd and lascivious act by an adult male upon the body of a child 10 years of age in the manner described by the prosecutrix, it is not necessary to make proof of the intention of the miscreant. His very act is in itself sufficient proof of intent. The fact that the act is done “wilfully” establishes his intent and, as instruction B says, “implies simply a purpose or willingness to commit the act referred to”. The language of instruction B “that in order to constitute a violation of section 288, it was not required to find that defendant had any specific intent” is the expression of a fundamental principle of criminal law when referring to malum prohibitum.

There is no error in instruction C. It renders unnecessary proof of the exact hour of the commission of the crime. The purpose of that instruction was to relieve the jury of the necessity of determining whether the criminal act was committed at 1 o'clock or at a later hour on March 13. The instruction could have been erroneous only if appellant had pleaded an alibi and had undertaken to establish his presence at another place at the time designated by the prosecutrix but there was no suggestion in any testimony that appellant was not present on the occasion of the visit of Mary and her mother to appellant's home on March 13. His own testimony established the fact of his presence at his home at the time in question. His sole contention at the trial and in his voluminous briefs before this court has been and is that the story of the prosecutrix is “incredible” and “physically impossible”. For the foregoing reasons, the cases cited by appellant (People v. Morris, 3 Cal.App. 1, 10, 84 P. 463, and People v. Waits, 18 Cal.App.2d 20, 62 P.2d 1054) are not in point.

In his effort to defeat the judgment appellant contends that there is no substantial evidence to support the verdict and that the story of Mary is inherently improbable. He points out: (1) that he and his wife contradicted Mary's testimony that Mrs. Kearney telephoned Mrs. Lence; they testified that Mrs. Lence telephoned to Mrs. Kearney; (2) that they contradicted Mary as to the presence of the large dark–haired woman during the time appellant was frying fish; (3) that Mary's testimony was that she saw the bath tub and the things in it while she stood with her back against the door was impossible because the door opened into the kitchen and stood substantially at right angles to the door if closed; (4) that while he and Mrs. Kearney testified that Mrs. Kearney was absent from the kitchen during the fish fry not more than two minutes, and that such absence was during the visit of Mrs. Lence, with Mrs. Kearney in the front room, Mary's testimony was that when the offense occurred Mrs. Kearney was in the front room with a strange lady for five minutes.

The fact that Mary was contradicted by appellant and his wife is not proof of the falsity of her testimony or of the inadmissibility of the occurrences and facts related by her. Whether the act occurred during the presence of a large dark–haired woman, as testified by Mary, or whether it occurred later during the call of Mrs. Lence, is not such a discrepancy as should vitiate the verdict. The testimony that Mary could see the bath tub during the moments of the act while her back was against the door is not incredible. Exnibits filed show both the kitchen and the bath to be small rooms. To stand by the door in the position described by Mary might easily leave the impression upon the child's mind under such circumstances that she had been in either room. The position in which she stood was not twenty–four inches from the bath room, a large portion of which was clearly visible including the tub and its contents. She never said that appellant closed the bath room door. Her testimony was “then he opened that door that leads to the bath room and there was some cupboards there and then when he put the door against them you could not see anything,” etc.

Whether the criminal act occurred during the presence of the large dark–haired woman or during a call later by Mrs. Lence is not important. Whether Mrs. Kearney was absent from the kitchen two minutes or twenty minutes, it is not unreasonable to believe the testimony of the child who describes the act done with every evidence of sincerity and truthfulness. Opinions as to the passing of time are often shown to have been ill–founded. If appellant intends to argue that the alleged discrepancies proved the inherent improbability of her story, he is not supported by the authorities. Appellant urges that the case of People v. McCullough, 38 Cal.App.2d 387, 101 P.2d 531, should govern. The McCullough case is not at all parallel. The prosecutrix was a child seven years of age. She was not definite as to the time of the alleged crime. The child was uncertain as to the manner of the commission of the crime and “in no essential particulars was her testimony directly corroborated”. Also his alibi was established by competent proof.

In addition to the “discrepancies” suggested, appellant directs our attention to the fact that the physician who examined Mary on March 24th, eleven days following the events narrated by her, testified that there was no irritation and that her findings were negative as to any proof of penetration. The period elapsing between the date of the occurrence and the day of the examination was sufficient to allow for the healing of any irritation caused by the act. Such finding does not render the child's testimony a nullity. She did not testify that a penetration was accomplished but only an act that was sufficient to constitute a violation of 288 of the Penal Code.

The contention of appellant that the parents of Mary cunningly planned a situation whereby a charge could be brought against appellant is not sustained. The parties were neighbors; the Lence family were tenants of appellant; there had been no misunderstandings; Mrs. Kearney was fond of Mary and thought “she was a lovely girl”. She had asked Mary to visit her on that very day. The two were occupied in reading a newspaper together before their interruption. Facts admitted by the Kearneys lend support to Mary's testimony: appellant was frying fish; Mary was left with him while Mrs. Kearney visited with the large lady in the living room between which and the kitchen was another room. Moreover, Mary's testimony that in removing her panties appellant broke the elastic; her mother, upon their return home, discovered the impaired waist band and she removed the garment. It was filed as an exhibit in the case.

Any doubt as to whether the act described was physically impossible was resolved by the jury against appellant and by the judge on the motion for a new trial. People v. Stangler, 18 Cal.2d 688, 117 P.2d 321, 323. “An appellate tribunal cannot disturb the findings of the triers of fact unless it be made clearly to appear that upon no hypothesis is there sufficient substantial evidence, circumstantial or otherwise, to support the conclusion reached in the lower court.” Ibid. It is not suggested nor does the record indicate that the jury was moved by passion, prejudice or sympathy to convict appellant. It was their exclusive province to determine the credibility of the witnesses. People v. Becker, 140 Cal.App. 162, 35 P.2d 196; People v. Parker, 74 Cal.App. 540, 550, 241 P. 401. The trial proceeded with due regularity and decorum. The fact that the trial judge found no reason to disturb the verdict shows his impression of the prosecutrix's testimony. People v. Jefferson, 31 Cal.App.2d 562, 88 P.2d 238. Before this court may assume the functions of the trial jury, the evidence in support of the verdict must be so obviously and inherently improbable as to leave no recourse, without self–stultification, except to reverse the judgment. People v. Antunez, 28 Cal.App. 740, 742, 153 P. 963. For the appellate court to declare the testimony unworthy of belief would be to assume what could not legally be supported. People v. Gidney, 10 Cal.2d 138, 73 P.2d 1186.

If all discrepancies in Mary's testimony existed as claimed by appellant, they would not warrant our disturbing the findings of the jury. People v. Christensen, 32 Cal.App.2d 380, 89 P.2d 1095. Contradictions and inconsistencies in the testimony of a witness alone will not constitute inherent improbability. People v. Amadio, 25 Cal.App. 729, 145 P. 151. Neither is it sufficient in order to black out the testimony of the prosecutrix that it discloses unusual circumstances. People v. Collier, 111 Cal.App. 215, 226, 295 P. 898. Neither does the failure of memory or inaccuracy of observation of a ten–year–old child with reference to contemporaneous collateral events, occurring with cinematic speed at the time she was subjected to an unusual fright or excitement, warrant the conclusion that her testimony as to the fact in issue is inherently incredible. Whether Mary was confused with reference to the time of her arrival at the Kearney home; whether a large dark–haired strange woman came or whether Mrs. Lence only called, or whether the occurrences in the kitchen were exactly as Mary detailed; or whether she stood against the door in the bath room, whether she was confused with respect to such matters and whether her memory and her credibility were thereby affected were questions solely for the jury to determine. The child was on the witness stand during the greater part of a day. Her cross–examination was as severe as though she had been the prisoner and it covered every phase of the case. Nothing in her testimony discloses a desire to fabricate a vicious story against a man who had theretofore been a friend of her family. There was good reason why she should have held appellant in high esteem.

Appellant suggests that the case should be governed by People v. Benson, 6 Cal. 221, 65 Am.Dec. 506, and People v. Adams, 14 Cal.2d 154, 93 P.2d 146. The only point made in those cases is that the court should caution the jury against the danger of conviction on the uncorroborated testimony of a prosecutrix when requested to do so by defendant.

If conviction was based upon the testimony of appellant and his wife that Mrs. Lence was the only lady who visited their home while Mary was there, then the testimony of Mrs. Lence that she and Mrs. Kearney left Mary in the kitchen with appellant; that on returning home she found the elastic band in Mary's garment broken,––these facts, taken with the uncontradicted proof that Kearney was there, frying fish, are concurrent circumstances which tend to corroborate Mary's narrative. They justify the finding that the testimony of the child was the “result of actual experience, rather than a fancy or figment of her imagination”. People v. Stangler, supra. This court will not attempt to determine the weight of the evidence “but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt”. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 779.

Appellant's contention that he was acquitted of violating section 288 by reason of the dismissal of the count charging rape because both charges depended upon proof of the same act cannot be sustained. Although the two counts were predicated upon events of the 13th day of March, they constituted separate offenses. Pen.Code, sec. 261; Pen.Code, sec. 288. Merely because section 288 includes the act described in section 261 does not prevent the prosecution of the defendant under either charge if the other is dismissed. People v. Stangler, supra. Moreover, a “verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count”. Pen.Code, sec. 954.

Finally appellant's contention that the court erred in its exclusion of certain testimony sought to be elicited upon the cross–examination of the prosecutrix cannot be sustained. The girl in describing the posture of appellant at the time of the criminal act testified that “he stooped down real low and his shoulders were back, the abdomen forward”. Defense counsel then read her testimony at the preliminary hearing, in which she described the posture of appellant as follows: “His knees were forward practically touching mine and his hips were to the reverse.” Her testimony at the preliminary trial was stricken by the court with the comment that he had not seen any impeachment in it. We see no error in the court's ruling. It would have been the height of absurdity to hold that such testimony was an impeachment of her testimony given on the stand. It is not to be expected that a child of ten years subjected to such oppression as that described could have given a photographic impression of the exact curves of the lines of the body of her assailant during the moment of the assault. The child having testified, it was a proper exercise by the trial judge of his right to comment upon evidence to aid the court. Const., art. VI, sec. 19. The same may be said of the court's exclusion of the testimony sought from the prosecutrix when her testimony at the preliminary trial was read, in which she said that appellant “did not take hold of her with his hands any place during the act”, although she testified before the jury that “he pulled my knees apart with his hands after my panties had come down”. Mary's testimony that she had not talked about her testimony to her mother or to anyone else is of no material value. Since the beginning of the trials of criminal cases timid witnesses have denied having talked about their testimony when asked with reference thereto by the cross–examiner. Such inquiries are oftentimes made of inexperienced witnesses for the sole purpose of committing them to a statement whose falsity is easily demonstrable.

In view of the proof and of the freedom of the record from prejudicial error, the judgment should be affirmed.

McCOMB, Justice.

W. J. WOOD, J., concurred in the judgment.