PEOPLE v. BARNETT (1945)

The defendant was convicted by the court sitting without a jury of twelve counts of an indictment, each charging him with a separate offense under Section 288a of the Penal Code. One other count was dismissed. Before trial the defendant moved the court under Section 5501 of the Welfare and Institutions Code St.1939, p. 1783, to grant him a separate hearing to determine whether he is a sexual psychopath as defined by Section 5500 of that Code, and if so to suspend the criminal trial and commit him to a state hospital as therein provided. The motion was heard on an affidavit of the brother of the defendant to which there were attached the written statements of three physicians to the effect that they considered him a sexual psychopath. There was also presented on that motion the testimony, including the voluntary admissions of the defendant, adduced at the hearing before the Grand Jury. The motion was denied.

On appeal it is contended the court erred in refusing to grant the motion to suspend the criminal proceedings and to commit the defendant to a state hospital, and that the evidence, as to count number three, lacks corroboration of the accessory to the crime as required by Section 1111 of the Penal Coce.

We are of the opinion the court did not abuse its discretion in denying the motion to suspend the criminal proceedings and to determine in a separate hearing whether the defendant is a sexual psychopath as that term is defined in the statute. The defendant is forty-five years of age. He is an architect and an artist of considerable intelligence and skill. He is a homosexual pervert who has been preying upon young boys of high school age to their great detriment for the past five or six years. There is no evidence that he has ever attempted to interfere with young children under the age of fourteen years. He is not within the class of psychopaths covered by the definition in Section 5500 of the Welfare Code. The trial court properly denied the motion.

Under Section 5501 of the Welfare Code the judge has a sound discretion to grant or deny the petition for hearing on that issue. The first paragraph of that section provides that ‘the court may’ adjourn proceedings in the criminal trial and grant the hearing if ‘it appears by affidavit to the satisfaction of the court that such person is a sexual psychopath within the meaning of this chapter.’ That statute requires the petitioner to show by affidavit that the defendant is predisposed to commit sexual offenses against children. The granting of the separate hearing is not mandatory. To be sure, the court may not arbitrarily reject the application without reason. It has a sound discretion to be exercised only pursuant to law. People v. Haley, 46 Cal.App.2d 618, 622, 116 P.2d 498; In re Cook, 67 Cal.App.2d 20, 24, 153 P.2d 578; United States v. Hrasky, 240 Ill. 560, 88 N.E. 1031, 130 Am.St.Rep. 288, 16 Ann.Cas. 279. The only affidavit filed by the defendant in support of the motion was by his brother Chester, to which there were attached the written statements of three physicians. The testimony taken before the Grand Jury was also presented on that motion. It contained the evidence of several boys from sixteen to nineteen years of age who were defendant's victims in the commission of the crimes with which he was charged. It also contained the defendant's own testimony before the Grand Jury, in which he frankly admitted the truth of the charges.

The affiant's averments of his belief that his brother is a sexual psychopath were all based on his ‘review of the testimony taken before the Grand Jury.’ That same evidence, together with the defendant's own testimony before the Grand Jury, was presented to the trial judge and considered on that motion. The statements of the physicians, which were attached to the affidavit, were likewise chiefly based upon the testimony taken before the Grand Jury. We must assume the court gave due consideration to all the evidence which was presented to it on that motion. We are unable to say, as a matter of law, that the court abused its discretion in denying the motion.

Moreover, we are of the opinion the court did not abuse its discretion in denying the motion for the further reason that the statute applies to psychopaths who are predisposed to commit sexual offenses against children, only, which, in the sense in which it is used in that statute, does not include persons over the age of fourteen years. Section 5501 of the Welfare Code provides that the court may grant the hearing when it appears by affidavit, ‘to the satisfaction of the court that such person is a sexual psychopath within the meaning of this chapter.’ Section 5500 of that chapter defines a sexual psychopath, for the purposes of that statute, as one who is predisposed to commit sexual offenses against children. Clearly the benefits of that special proceeding are not extended to, nor is it intended to apply to, all sexual psychopaths regardless of the ages of their victims. It is specifically confined to those who are addicted to commit offenses on children as distinguished from adults or from those presumed to be of sound discretion who are in the period of adolescence. A sexual psychopath may be addicted to the commission of sexual offenses against adults only. It may not be said that psychopaths who prefer and select adults as their victims are included in the definition of those only who are predisposed to commit sexual offenses against ‘children’, to which the statute is confined. Nor do we think the statute was intended to apply to psychopaths who are predisposed to commit sexual offenses against girls or boys in their adolescent age between puberty and majority, or it would have so stated. We must assume by the deliberate use of the word ‘children’ in accordance with its commonest definition that the legislature intended to restrict the application of that special hearing to psychopaths who are predisposed to commit sexual offenses against very young persons under the age of puberty. Otherwise the legislature would have designated the class to which it was intended to apply as minors or persons under the age of majority, which would also include younger persons under the age of puberty. Evidently there was a deliberate purpose to limit that investigation to psychopaths who are addicted to preying upon persons who are not adults, for the word ‘children’ as it is used could not possibly have been intended to include adults. Clearly a distinction between classes of psychopaths, dependent upon the ages and discretion of the victims upon whom they are predisposed to operate, was intended. We are convinced the word ‘children’ was used for a limited and definite purpose. It is reasonable to assume the word ‘children’ was also used to distinguish immature and helpless girls and boys under the age of puberty from those under the age of majority who are presumed to have reached the age of discretion. If the legislature had intended to extend the privilege of that special plea to persons who are disposed to commit sexual offenses against those under the age of majority, it would have been very easy to have so stated. The legislature did not do so.

When there is a doubt regarding the intention of the legislature with respect to the meaning or application of words or phrases used in a statute, they should be construed in the common, usual and ordinary acceptation of the meaning of such words or phrases. 23 Cal.Jur. sec. 124, p. 749. Almost invariably statutes for the protection of children specify the ages to which they apply. If we do not accept the foregoing rule of adopting the commonest definition of children to mean those who are under the age of puberty, since the context of the statute furnishes no aid in solving an otherwise uncertain and doubtful meaning of the word, the statute might become void for uncertainty. No doubt the legislature had a definite reason for limiting the statute to those who are psychopaths because they are addicted to committing sexual offenses against children under the age of puberty. It is not necessary for us to determine what that purpose was. But it may have been to afford protection against wrongful convictions of accused persons upon uncorroborated evidence of witnesses so young as to lack understanding and who are therefore unreliable. On numerous appeals from conviction of offenses against young children under the age of puberty who lack discretion, it has been urged that the uncorroborated testimony of such children was inherently improbable, unbelievable and unreliable. If the victims of such sexual assaults are over the age of fourteen years, they may become accessories to the crimes and their testimony is then required to be corroborated before convictions may be sustained. People v. Singh, 121 Cal.App. 107, 8 P.2d 898; 8 Cal.Jur. 176, sec. 254. If the victims are under the age of fourteen, they are presumed to be incapable of commmitting crimes, and in the absence of proof of their knowledge and appreciation of the wrongfulness of the act, they may not be deemed to be accessories. The presumption is that ‘children under the age of fourteen’ years are incapable of committing crime. Penal Code, sec. 26. In statutes adopted for the protection of children, the Penal Code usually specifies the limitation of the ages to which they apply. Section 288 of that code prohibits lewd and lascivious acts against ‘a child under the age of fourteen years.’ Many other California statutes which are particularly applicable to young children specify the ages to which they apply.

In our opinion Section 5500 of the Welfare Code applies only to persons who are deemed to be sexual psychopaths because they are predisposed to commit sexual offenses against very young persons under fourteen years of age. That section provides:

‘As used in this chapter ‘sexual psychopath’ means any person who is affected, in a form predisposing to the commission of sexual offenses against children, and in a degree constituting him a menace to the health or safety of others, with any of the following conditions:

‘(a) Mental disease or disorder.

‘(b) Psychopathic personality.

‘(c) Marked departure from normal mentality.’

It has been frequently stated by textwriters and in decisions of reviewing courts that when criminal statutes prohibit offenses against ‘children’ without defining that term, or specifying the age to which the law applies, and the limitation cannot be ascertained from the context, it must be construed in its ordinary and common acceptation, which is that of very young persons of tender years; those who have not reached the age of discretion; persons under the age of puberty, usually fixed at fourteen years as applied to boys, and twelve years when applied to girls.

While there are some cases to the contrary, the textwriters and authorities generally support that conclusion. In 2 Century Dictionary and Encyclopedia, page 957, the word ‘child’ is defined in part as follows:

‘Specifically, a very young person; one not old enough to dispense with maternal aid and care.’

In 14 Corpus Juris Secundum, Child, page 1109, it is said:

‘In laws for the protection of children, the term ‘child’ means generally the young under the age of puberty, and in this age sense the word has been defined as meaning an infant, a young person, a youth, or one of tender years, a very young person, one not old enough to dispense with maternal aid and care.'

Likewise in Black's Law Dictionary, 3rd Edition, page 320, the word ‘child’ is defined, in addition to its mere relationship as offspring of its parents, as follows:

‘In the law of negligence, and in laws for the protection of children, etc., it is used as the opposite of ‘adult’, and means the young of the human species (generally under the age of puberty or not old enough to dispense with maternal aid and care), without any reference to parentage and without distinction of sex.'

The foregoing definition is supported by several authorities.

In the case of Bell v. State, 18 Tex.App. 53, 51 Am.Rep. 293, in sustaining the conviction of the appellant for an aggravated assault ‘upon the person of a female or child’ contrary to statute, the court held that the use of the word ‘child’ without a definition of the word, meant a boy under fourteen years of age or a girl under twelve years of age. The court said:

‘Resort, then, must be had to the common meaning and acceptation of the word ‘child.’ Mr. Webster defines it to mean ‘a young person of either sex; hence one who exhibits the character of a very young person;’ and this is its common acceptation. It means a young person as contradistinguished from one of age sufficient to be supposed to have settled habits and fixed discretion. * * * As the law now stands, we believe that the age of fourteen in boys and twelve in girls limits the age of childhood.'

The affidavit and written statements of physicians which were presented on the motion to suspend the criminal trial and to adjudge the defendant to be a sexual psychopath, together with the evidence adduced before the Grand Jury, including the defendant's voluntary admissions, definitely show that the defendant was predisposed to and invariably did select for his nefarious practices boys only who were sixteen years, or more, of age. He was not predisposed to satisfy his lust upon infants, under the age of puberty. If the statute does not include within the definition of the word ‘children’ either adults or persons over the age of puberty, as we believe that it does not, then it has no application to this case and the court properly denied the motion. That is true even though it satisfactorily appeared, which we do not concede, that the defendant is a psychopath under the general definition oof that term and that he was predisposed to commit sexual offenses against individuals without regard to their ages. It does appear that he is a homosexual person with depraved and degenerate habits concealed by shrewd and cunning methods designed to deceive and seduce unwary youth, upon whom he preys to their great injury and to the detriment of society.

Even if the foregoing limitation of the application of Section 5501 of the Welfare Code is not confined to those psychopaths who are predisposed to commit sexual offenses against very young persons under the age of discretion or puberty, we are nevertheless of the opinion the court did not abuse its discretion in denying the motion, as we have previously stated.

The appellant contends that the judgment finding him guilty of the offense charged in count number three is not supported by the evidence because the testimony of the victim upon whom that alleged crime was perpetrated was an accessory thereto and his testimony lacks corroboration of the date thereof and otherwise.

There is no merit in that contention. The defendant was charged in separate counts with thirteen different offenses under Section 288a of the Penal Code with different boys over sixteen years of age. Each count alleged the date ‘on or about’ which the particular offense was perpetrated together with the name of the boy upon whom it was committed. The sixth count was dismissed. The defendant was found guilty of each of the other counts, including the challenged third count, which was alleged to have been committed on a named boy ‘on or about the 15th day of July, A.D. 1944.’ It was the only offense alleged in any of the counts to have been committed upon that or any other boy in July, 1944. The boy mentioned in count three testified in detail to his association with other named boys who are involved in other counts of the indictment, and to their frequent visits to the defendant's home and their association and participation in his criminal practices. That witness testified in detail to his participation with the defendant in the crime charged in the third count. Regarding that particular alleged crime he said that he went in company with three other named boys to the home of the defendant ‘in the summer’ of 1944, in the month of July. He was not certain of the exact date, but he testified positively to the details of the crime charged in that count of the indictment which he asserted the defendant then committed upon him. Upon the completion of the boy's testimony regarding that particular offense the prosecuting officer said ‘That refers to count 3,’ to which assertion the defendant's counsel made no reply. He did not then challenge the alleged variance regarding the exact time of the occurrence of that crime. The time of that offense was sufficiently fixed. That was the only offense charged against the defendant upon that boy during July 1944, or any of the summer months of that year. The circumstances of those offenses and the revolting practices of the defendant were corroborated in detail by several other boys. Moreover, the commission of the crime charged in count number three, together with all the other crimes charged against him, was freely and voluntarily admitted by the defendant in his sworn statement made to the Grand Jury, which was received in evidence in this case. On the trial, when the names of the several boys were read to the defendant upon each of whom he was separately charged with committing similar crimes, and he was asked specifically if he had committed that particular act upon the boy named in count number three, he replied ‘With the whole list you have just read.’ He thereby unequivocally admitted his guilt of that particular offense as charged. He was then asked if he committed that offense ‘during or about July 1944.’ He replied that he did not remember the exact date but that it occurred ‘during the summer’ of that year. Since that was the only offense charged with that boy during any of the summer months of 1944, and the defendant admitted the commission of that offense during the summer months of that year, the time of the commission of the crime was sufficiently established and corroborated. The defendant was not misled or prejudiced by a failure to more definitely fix the date of the crime. He does not claim to have been so misled or prejudiced. The other essential circumstances of that offense were also adequately corroborated by the defendant and by proof of material circumstances related by several other boys.

Since each of the victims of the several crimes charged in the various counts of the indictment were over the age of fourteen years, in the absence of proof to the contrary we must assume they were accessories to the respective crimes in which they were involved, and it was therefore necessary to corroborate their testimony as required by the provisions of Section 1111 of the Penal Code. People v. McCollum, 214 Cal. 601, 7 P.2d 301; People v. Singh, supra. Their testimony regarding each alleged offense was adequately corroborated by other competent evidence. 8 Cal.Jur. 178, sec. 256. The admissions of the defendant corroborated it. Extrajudicial declarations of a defendant may be sufficient to corroborate the evidence of an accessory so as to sustain a conviction. People v. Briley, 9 Cal.App.2d 84, 48 P.2d 734. Certainly his voluntary testimony before the Grand Jury, admitting the crimes with which he was charged, furnishes sufficient corroboration to meet the requirements of Section 1111 of the Penal Code. In the recent case of People v. Wilson, 25 Cal.2d 341, 347, 153 P.2d 720, 723, it was held that corroborating evidence was sufficient if it merely created ‘more than a suspicion of guilt,’ although it ‘be slight and when standing by itself, entitled to but little consideration.’ People v. Thompson, 69 Cal.App.2d 80, 158 P.2d 213, 216; People v. Negra, 208 Cal. 64, 69, 280 P. 354; People v. Dorrance, 65 Cal.App.2d 125, 130, 150 P.2d 10; People v. Shaw, 17 Cal.2d 778, 112 P.2d 241.

The defendant was not prejudiced by the failure of the prosecution to establish the exact day upon which the crime alleged in count three was accomplished. The defendant admitted the commission of the crime upon the named boy during that summer. There was not a fatal variance with respect to the proof of the time alleged. The defendant made no objection at the trial on that account. He could not have been misled regarding the particular challenged offense of which he was convicted. The judgment of conviction of the crime charged in count three is not void for lack of corroboration of the approximate date of the commission of that offense or otherwise. People v. Becker, 140 Cal.App. 162, 35 P.2d 196; People v. Tracy, 50 Cal.App.2d 460, 464, 123 P.2d 138.

The judgment and the orders appealed from are affirmed.

PER CURIAM.