PEOPLE v. GREER (1947)

The appellant was accused by information in separate counts of violating subdivision 1 of section 261 and section 288 of the Penal Code. He pleaded not guilty, former jeopardy and former acquittal. A verdict of guilty was returned on each count and the appellant was sentenced to serve one year in the county jail on the 261 charge and sentenced to the state prison on the 288 charge. From the judgment of conviction and from the order denying a new trial this appeal was taken.

At the time in question the appellant had been married to the mother of the prosecutrix for about 3 years. They have since been divorced. The prosecutrix was 13 years of age, the daughter of appellant's wife by her former marriage. The appellant, his wife and step-daughter resided together in San Francisco. Appellant was the driver of a motor truck hauling freight between San Francisco and San Luis Obispo.

Offenses in violation of both sections were alleged to have been committed on the same occasion on November 1, 1945, about noontime. According to the prosecutrix there had been about eight similar occurrences between the latter part of August, 1945, and November 1, all in the home and while the girl's mother was out shopping.

The prosecutrix said nothing to her mother until the day before Thanksgiving. She had, however, confided in three other persons. One of them was a woman friend of her mother's and her first disclosure to her was between the middle and end of September after the third of fourth occurrence. It was she who finally prevailed on the girl to tell her mother, and she was with her when she did so. The reason given by the prosecutrix for not immediately complaining to her mother was that she was in fear of her life as the appellant had threatened on the first occurrence and several times thereafter to kill her if she told, and on one occasion after the third or fourth occurrence he had shown her a pistol. The delay of the girl in making complaint to her mother, while at the same time taking the other three persons into her confidence, is one of the circumstances on which appellant bases his argument that the girl's story is inherently improbable and unbelievable. One of the persons in whom she confided was a nun, another a priest, and what she told him was in the confessional according to the girl's testimony.

The testimony of the prosecutrix is attacked as incredible for other reasons. Three physicians testified in the case, two on the side of the people and one for the defense. The first, a woman doctor connected with the Juvenile Court, examined the girl a day or so after Thanksgiving. The second, the family doctor, had examined the girl in February 1945, some months before the period in question and again on November 22 the day on which the mother was told. He testified as to a changed condition on the second examination, which might or might not have been caused by the 261 offense. The third doctor, who testified for the defense, did not examine the girl but testified in answer to hypothetical questions with respect to the possibilities of the case. It is sufficient to say, and fair to say, that from the testimony of all three doctors the jury might have concluded that the 261 offense could not have been committed. There was really no conflict in the medical testimony. The doctor first referred to testified that the condition she found was rarely found where there had been as many as eight or nine such occurrences. The doctor who testified for the defense (who was extremely fair and candid in his answers) characterized the said condition, given to him in the hypothetical questions, as ‘quite rare,’ but both of them said that such condition was still possible, that is, it could exist even after such occurrences. The family doctor was not asked his opinion on this, as were the other two. From the testimony of the three doctors, and from that of the prosecutrix, the jury might have concluded either that the 261 offense had been committed within the meaning of the second sentence of section 263 or that it could not have been.

The only testimony respecting the 288 offense was that given by the girl, but it was sufficient to support the verdict. From her testimony the jury could have drawn the inference that section 288 was violated either before, after, or at the same time as, the 261 offense.

The appellant, when confronted by his wife with the girl's accusation, denied any improper conduct whatever, and likewise denied it on the stand.

In addition to such denials the appellant claimed that on the day in question, his wife had been in the home during all the time when he and the prosecutrix were there; that he had gone out for a short time to get a washing machine which a friend of his had helped him bring home; that his wife was at home when it was set up and after setting it up he received a call from his employer requiring him to leave on another trip down the coast on his truck, whereupon he left the house in the company of his wife, rode with her part way in town and when they parted he went directly to his place of employment where he reported for work at 12:20, where he stayed until he left town on his truck for San Luis Obispo a little before 2 p. m. and was in Gilroy by 3:30 p. m. Appellant's account of the day's happenings, if believed, would have eliminated all opportunity for the misconduct with which he was charged. Appellant's wife testified that she did not go in town with her husband; that she attended a luncheon that day with the woman friend already mentioned, and on returning therefrom in the afternoon found appellant at home. She testified that it was after she returned that he received the call from the office and that he then left to report for work. The friend who drove him home with the washing machine testified to the occurrence, and to the approximate time of day when he was with appellant, but on cross-examination he was unable to say whether it was on November 1 or on some other day. The prosecution produced the auditor of the motor transport company with office records which showed that appellant's truck was not cleared or ready to leave San Francisco before 3 p. m. This testimony, if believed, was of course inconsistent with appellant's assertion that he had left San Francisco about 2 or was in Gilroy at 3:30 and consistent with his presence at home—where the prosecutrix said he was—around noontime.

Motive is brought into the case by appellant's testimony respecting his wife, her woman friend, and the girl. He testified that he had reprimanded his step-daughter on several occasions, had disciplined her by prohibiting her going to shows for some days as a penalty for some infraction, and that she had said a number of times that she would get even with him. This was borne out to some extent by the girl's own testimony although she said she never resented her step-father's discipline when she deserved it.

In the information two prior convictions were charged, which appellant admitted. They were for violations of the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408. Appellant testified that his wife never knew of this record until August 1945; that when she learned of it she called him a ‘jailbird,’ threatened to divorce him, and that her whole attitude toward him changed.

Appellant claimed that he had had words with his wife's woman friend; had ordered her not to come to the house, in short, there was extremely bad feeling between them. The lady in question admitted having called him a ‘beast’ over the telephone. Appellant testified that she used a stronger epithet. So there may be said to bo corroboration of the appellant on practically all this testimony touching motive. It was the theory of the prosecution that appellant's attitude toward his wife's friend was based on a suspicion that the prosecutrix had confided in her.

All four features of the case (1) whether or not the offense was committed; (2) delay in complaint; (3) alibi, and (4) motive, presented questions of fact for the jury. There unquestionably was a long delay in the complaint to the mother. From August 25 to Thanksgiving was a period of three months and the evidence shows that there were several occurrences after the prosecutrix spoke to the three persons. The explanation that the girl's delay in complaining was because she was in fear of her life was one which the jury could have accepted or rejected; it was purely a jury question.

The physical and medical facts likewise presented questions of fact. The medical testimony showed a rare case, according to medical treatises and according to the doctors' own professional experience, but not an impossible one. Both doctors who were questioned on the subject gave as their opinion that the 261 offense could have been committed. (In this connection see People v. Gallagher, 108 Cal.App. 128, 130, 291 P. 626). There was no medical question connected with the 288 offense.

The testimony addressed to the defense of alibi was purely a fact question, and from which has been said, with the appellant's witness not at all certain as to the day, and the representative of appellant's employer corroborating the appellant only to the extent that he departed that day but several hours after appellant said he departed, does not add up to a very strong case on its alibi side.

Under the heading that the evidence is insufficient to justify the verdict the appellant has cited several cases where convictions were reversed because the evidence was inherently improbable. The facts of each case of course are different, and not much is gained by comparing them. The case of People v. Fremont, 47 Cal.App.2d 341, 117 P.2d 891, 895, cited by the respondent contains a good discussion of the rule applying where it is claimed that the evidence is ‘so palpably false and incredible that it cannot afford a basis for the verdict.’ That case quotes from 8 Cal.Jur. 590, section 582, a full statement of the rule including this: ‘Nor is testimony inherently improbable merely because it is unusual or out of the ordinary’ which applies to this case. The case is authority, also on the point that where the prosecution is under subdivision 1 of section 261 the failure of the prosecutrix to make complaint has little weight or relevancy, although it may be considered by the jury in connection with the credibility of the witness, the rule in that respect being predicated on cases where force and violence are charged.

The appellant was accused of violating subd. 1 of section 261 and section 288 of the Penal Code.

The appellant's three following points may be considered more or less together. The first is that double punishment was imposed by the sentences in that the same evidence was introduced in support of both counts. Section 288 deals with lewd acts ‘including any of the acts constituting other crimes provided for in part one’ of the Penal Code. From this language it is argued that statutory rape is an ‘included offense’ within section 288 and therefore that ‘a conviction or acquittal of one bars a prosecution for the other regardless of whether it be the lesser or the greater, citing People v. McDaniels, 137 Cal. 192, 69 P. 1006, 59 L.R.A. 578, 92 Am.St.Rep. 81; People v. Defoor, 100 Cal. 150, 34 P. 642, and People v. Stephens, 79 Cal. 428, 21 P. 856, 4 L.R.A. 845. Those three cases deal with ‘included offenses' in the sense long known to the criminal law and exemplified by the three cases themselves. Section 288 does not, however, use the word ‘including’ in that sense. This is clear from a number of recent decisions. The present language of section 288 simply means that in some circumstances a person may be prosecuted under that section for acts which are, at the same time, offenses under other sections dealing with sex crimes.

In People v. O'Donnell, 11 Cal.2d 666, 81 P.2d 939, 941 the defendant, as in this case, was accused of violating both sections 261 and 288. He was found guilty of both offenses committed on the same occasion. It was claimed that the 288 offense ‘became merged in the rape charge, for which reason appellant could not be punished under the provisions of section 288 * * *,’ which is the claim now made by appellant. The court in the O'Donnell case held otherwise and cited a number of authorities, all of which apply to the pending case. See, also, People v. Stangler, 18 Cal.2d 688, 695, 696, 117 P.2d 321; People v. Amick, 20 Cal.2d 247, 125 P.2d 25; People v. Kearney, 20 Cal.2d 435, 126 P.2d 612; Rodriguez v. Superior Court, 27 Cal.2d 500, 165 P.2d 1; and cases there cited; People v. Bush, 56 Cal.App.2d 877, 133 P.2d 870; People v. Paris, 59 Cal.App.2d 699, 139 P.2d 671; People v. Pollock, 61 Cal.App.2d 213, 142 P.2d 328. In the case at bar there is ample evidence (without detailing it) to sustain the conviction under section 288, wholly apart from that relied on to sustain the conviction under section 261. In any event it may safely be said that under the evidence the jury might have concluded that the 288 offense was committed before, or after, or at the same time as, the 261 offense (see People v. Paris, supra, 59 Cal.App.2d 699, 702, 139 P.2d 671).

Second: the appellant complains that the trial judge denied him ‘his constitutional right to due process of law in refusing to permit him to offer any evidence in support of his pleas of once in jeopardy and former aquittal’ and refers to a ‘statement of certain oral proceedings settled by the trial judge’, supposed to show an offer of proof of former jeopardy and acquittal. We fail to find this in the record and the fact that no transcript reference is supplied, indicates that it is not therein.

An appellate court cannot be expected to reverse when the appellant does not show in the record that which was before the trial court. In People v. Russo, 85 Cal.App. 672, 674, 259 P. 1020 the court said: ‘Appellant has not incorporated this matter in the record, nor even stated its substance, and consequently we must assume that the ruling complained of was correct.’

It does not appear that after the court had indicated that the evidence would not be received any formal offer of proof was made.

What was said in People v. Harris, 169 Cal. 53, 64, 145 P. 520, 524, is in point: ‘Council in this case, if he deemed the matter of sufficient importance, should have made a formal statement or offer of what he intended to prove. Such a proceeding is in harmony with the rule governing appeals that error warranting a reversal must affirmatively appear in the record and to also permit this court to determine whether a substantial right of a defendant has been prejudiced by a ruling assigned. People v. Brotherton, 47 Cal. 388; People v. Brent, 11 Cal.App. 674, 106 P. 110.’ See, also, People v. Babcock, 160 Cal. 537, 543, 117 P. 549; People v. Ferdinand, 194 Cal. 555, 229 P. 341; People v. McGann, 194 Cal. 688, 694, 230 P. 169; People v. Erno, 195 Cal. 272, 280, 232 P. 710; People v. Heape, 72 Cal.App. 226, 233, 237 P. 66; People v. McDonald, 110 Cal.App. 183, 187, 293 P. 883; People v. Owens, 11 Cal.App.2d 724, 727, 54 P.2d 728; People v. Ratten, 39 Cal.App.2d 267, 270–271, 102 P.2d 1097; People v. Brown, 43 Cal.App.2d 430, 433, 110 P.2d 1059. Counsel is frank in saying that no such statement or offer was made, for in the closing brief he says, ‘Moreover, the offer of proof was in general terms, and no objection was made either by the district attorney or the trial judge as to its sufficiency. The latter merely stated that she would not permit any evidence to be offered in support of the pleas. She could not know in advance from the offer what that evidence would be * * * There is absolutely nothing to show upon what facts appellant would have relied in support of the pleas,—this for the good and sufficient reason that he was cut off in limine by the refusal of the trial court to hear any evidence as to these defense.’

We are not told even now how the claimed former jeopardy or acquittal arose. These are important defenses and if they would have cleared the defendant in this case they should have been presented to the trial court in such a way that a reviewing court could say whether they were meritorious or not.

Third: in addition to pleading not guilty appellant pleaded former jeopardy and former acquittal to each count. There was a failure to return a separate verdict on these two pleas. The appellant contends that the judgment must be reversed because of such failure, citing People v. Kinsey, 51 Cal. 278; People v. Helbing, 59 Cal. 567; People v. Fuqua, 61 Cal. 377; People v. Hamberg, 84 Cal. 468, 24 P. 298; People v. Tucker, 115 Cal. 337, 47 P. 111, and Ex Parte King, 10 Cal.App. 282, 101 P. 810, all of which hold that such failure is reversible error. However the case of People v. Frank, 75 Cal.App. 74, 81, 82, 241 P. 924, 927, after citing all six cases, says that ‘Since the above cases were decided, there have been some decisions * * * which, while not directly overruling these cases, or for that matter ever referring to them, appear to enunciate a somewhat different rule. * * * From these later decisions, we question whether the strict rule invoked in the earlier cases above referred to can now be considered the law in this state.’ In that case the failure to make a separate finding on the jeopardy plea was held not prejudicial. A petition for hearing was denied by the Supreme Court.

In People v. Grace, 88 Cal.App. 222, 232, 263 P. 306, where, likewise, the Supreme Court denied a hearing, there was a similar holding.

While, generally speaking, former jeopardy is a question of fact, and hence should be passed on by the jury, in certain circumstances it may become purely a question of law. People v. Ammerman, 118 Cal. 23, 50 P. 15; People v. Cummings, 123 Cal. 269, 55 P. 898; People v. Newell, 192 Cal. 659, 221 P. 622; People v. Wilkison, 30 Cal.App. 473, 477, 158 P. 1067; People v. McNeer, 8 Cal.App.2d 676, 683, 47 P.2d 813.

As appears from the discussion of the preceding point we have no means of knowing from the record the grounds on which the appellant relied under his special pleas. From what has been quoted from People v. Frank, supra, it is clear that the failure to return separate verdicts on these special pleas is not necessarily error. In the absence of a showing now of what facts or circumstances were relied on we cannot assume that the court erred. Under the settled rule (see People v. Newell, supra, 192 Cal. 659, 221 P. 662), if a defendant does not produce evidence in support of his jeopardy plea that defense is waived. In the state of this record we must conclude that the special defenses were not pressed or followed through.

The appellant's final point is that the instructions were conflicting, misleading and erroneous on the subject of alibi. One of them reads as follows: ‘I instruct you that the defendant is not required to prove by a preponderance of the evidence that he was not present where the offense is alleged to have been committed, but that he is entitled to an acquittal if the testimony tends to establish an alibi raising a doubt in your minds that he was present at the place at which the crime charged is alleged to have been committed.’

The complaint is that whatever beneficial effect that instruction had was nullified by the following:

‘I instruct you that the evidence of the defendant establishing an alibi tending to show that the defendant was not present at the actual place where the offense or offenses charged in the information were supposed to have been committed, should be weighed as any other fact established, and that it might be sufficient to create a reasonable doubt as to the guilt of the defendant. However, if you, the jury, are satisfied beyond a reasonable doubt of the defendant's guilt of the offense or offenses stated in the information, it is your duty to convict the defendant notwithstanding such evidence of an alibi.’

Appellant's objection is to the last sentence of the last instruction; namely, that that instruction ‘permitted the jury to disregard the evidence tending to prove an alibi, if they were satisfied of the guilt of the accused from the other evidence.’

The first instruction told the jury that the defendant was not required to prove his absence, but sufficient if the testimony raised a sufficient doubt as to his presence. The second told them that the defendant's evidence as to absence should be weighed ‘as any other fact established’ and that it ‘might be sufficient to create a reasonable doubt’ as to his guilt. When read together these two instructions thus far cannot be said to be objectionable. The addition of the sentence opening with ‘However’ was cautionary, as we see it, telling the jury that if from all the evidence (not from the other evidence) they were satisfied of defendant's guilt they should not permit the alibi evidence to deter them from finding a verdict of guilty. It is self-evident that to become convinced of guilt they must find he was present, not absent, and the language in question simply sold the jury that if they found guilt they should discard the alibi evidence. We do not find the two instructions conflicting or misleading.

In connection with the language that the defendant's evidence respecting alibi ‘should be weighed as any other fact established’ it might be noted that the jury was told in two other separate instructions that the defendant's testimony was to be weighed in the same manner and measured according to the same standards as the testimony of any other witness.

No authority is cited by appellant holding that an instruction in the language now criticized is erroneous. His authorities are simply to the point that the giving of a correct instruction does not repair or offset the harm resulting from others which are erroneous.

We find no error whatever in the record.

The judgment and order denying a new trial are, and each of them is, affirmed.

On Petition for Rehearing.

The petition for rehearing supplies a tender of proof admittedly missing from the record on appeal, showing that appellant at the second trial offered to prove that at the first trial he was convicted of a violation of section 702, Welfare and Institutions Code, and that the jury disagreed as to the alleged violations of sections 261 and 288 Penal Code, which tender the court rejected; that appellant then moved for a dismissal ‘on the ground that, because of said former trial and verdict and disagreement, defendant had been acquitted and had been in jeopardy’ which motion was denied. Treating the record now submitted as part of the original record, still the trial court did not err in rejecting the tender and denying the motion to dismiss, for the 702 offense was neither identical with, nor included within, either the 261 or the 288 offenses although it may have been committed at approximately the same time as they were. People v. Bevans, 19 Cal.App.2d 288, 65 P.2d 92; People v. Tenner, 67 Cal.App.2d 360, 154 P.2d 9; People v. Lett, 69 Cal.App.2d 665, 160 P.2d 112; see also cases cited in opinion under heading of double punishment.

The petition is denied.

GOODELL, Justice.

NOURSE, P. J., and DOOLING, J., concur.