People v. Cook
| Decision Date | 21 October 1955 |
| Docket Number | Cr. 5411 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Ervin Washington COOK, Defendant and Appellant. |
Gray, Glass & Allen, Gardena, for appellant.
Edmund G. Brown, Atty. Gen., Joan D. Gross, Deputy Atty. Gen., for respondent.
Having been duly convicted on two counts of violating section 288 of the Penal Code, a felony, the accused has appealed on the grounds of (1) the insufficiency of the evidence; (2) the jurors were not convinced beyond a reasonable doubt; (3) there was a material variance as to the time of the criminal acts; (4) appellant was deprived of due process of law; and (5) the sole witness to the alleged acts was not competent to testify and the oath administered to her was not proper.
Appellant and his family resided next door to the Heaton family in Redondo Beach. The Heatons had two daughters to whom we shall refer as 'A' and 'B'--ages nine and five respectively. On a day in early August, 1954, the girls visted appellant's home. He invited them into his bedroom. 'A' lay upon his bed and removed her panties. While appellant knelt beside the bed, partially disrobed, he did the act forbidden by the statute. The child observed his enlarged sexual organ. Such act was followed by the same performance on the body of 'B' whose shorts had been removed and her dress lifted. 'A' related her experience to a ten-year-old girl of her neighborhood and repeated it to her own mother, and to a lady of the police department. She could not be sure that the event occurred on August 4, but she was certain that it was on the day appellant had taken her mother to her grandmother's, and that she and her sister were alone. Appellant's five-year-old son was in the house and tried to enter the bedroom door, but the girls successively held it during the acts of appellant.
To the investigating officer, appellant vehemently denied having molested the children by placing his tongue on their bodies; stated that at no time were the girls in his home in the absence of his five-year-old son; that the latter went to dancing school every Wednesday morning; that he worked at an aircraft factory from 4:15 p. m. to 12:49 a. m.; that his wife leaves her shift at 3:45 p. m.; that on a day prior to the crimes when the girls watched his boy urinate, he told them it was not proper and asked them if they had ever played with themselves.
Appellant produced the witness Munar, who testified that on August 4 he and appellant were away from 'defendant's house in the morning until noon,' when the witness departed. He produced two women of his neighborhood who knew that he enjoyed a good reputation for chastity, virtue and morality; and also one who testified that he had the same reputation at the factory where he worked. Appellant testified to an alibi: that he recalled August 4, 1954, the day he took Mrs. Heaton and her three daughters to her mother's house where he left them; that he and Munar shopped for automobile parts and worked on his car until noon when Munar departed. He admitted he left the two oldest Heaton girls at home on August 5th when he drove their mother to her mother's again; that the door to his bedroom was warped, would not close completely, that it remained open about half an inch, and stuck.
With the evidence in such a state, it does not require the soul of an Elijah to convict a man of a crime so revolting. To convict appellant, it was required only that the jury believe the little girl's testimony and reject the arguments presented for the defense. The jury decided that the child witness had spoken the truth. The trial court having approved of the verdict, this court is powerless to interfere. "We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence * * *." People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 780. Our sole task is to determine whether the facts found are sufficient to constitute a violation of section 288, supra. We cannot hold otherwise; also, if the evidence reasonably justifies the verdict, this court is powerless to hold that because the evidence might in our opinion reasonably be reconciled with the innocence of the accused, such conclusion will not warrant a reversal. People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911; People v. Newland, supra; People v. Kristy, 111 Cal.App.2d 695, 698, 245 P.2d 547.
The jury's finding is not to be criticized because of inconsistencies in the child's testimony. Her untrained mind could not be expected to function perfectly in reporting an event. Testifying before a court, in the presence of strange, curious faces, often deflects the repertorial genius of more experienced witnesses. The alibi is not perfect. The little son is not shown to have pounded on the door, during its closed period. The witness Munar laft the premises at noon. Conflicts in testimony are resolved by the jury as is also testimony that justifies a suspicion; but after it is once believed and merged into a finding, it has ceased to be an Achilles' heel in the contest to determine guilt. People v. Johnston, 73 Cal.App.2d 488, 493, 166 P.2d 633; People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758. 'A's' testimony contains no mark of falsity; neither does it appear physically impossible of a reasoning belief. Moreover, she was corroborated by appellant's own admissions that she was once in his bedroom with him, that the girls were frequently in his home, that he had transported Mrs. Heaton to her mother's on two successive days. Mrs. Heaton testified that she not only left the girls at home, but asked appellant to keep an eye on them. Little 'A's' testimony is not to be discounted because she is a child of tender years. As a rule children make most convincing witnesses in reporting an occurrence. They are actuated by no motive to fabricate, to villify or to asperse character while they are still innocent. The record contains no intimation that 'A' was motivated by hate or by any gainful advantage. Her testimony was substantial, solid and real.
Appellant's demand for a new trial on the ground that the jury did not 'have an abiding conviction to a moral certainty' of appellant's guilt is not to be commended. Because two jurors reported after trial that they had changed their minds, appellant conceives that the jury was not convinced beyond a reasonable doubt. That is no ground for a new trial which may be granted only when the verdict has been decided by lot or 'by any means other than a fair expression of opinion on the part of all the jurors'. Penal Code, § 1181(4). Conceding that it was true that fellow-jurors told them the jury would be locked up over the week-end if they should fail to arrive at a verdict, such a statement by one of their own members does not constitute such pressure as would deflect the integrity and honor of a citizen. A juror may not impeach his own verdict except where the verdict has been reached by chance. People v. Reid, 195 Cal. 249, 261, 232 P. 457, 36 A.L.R. 1435; People v. Chapman, 91 Cal.App.2d 854, 856, 206 P.2d 4. The jury deliberated about five hours before they reported their verdict.
Appellant contends that a new trial should have been granted because the probata did not correspond with the allegata. He deems himself to be aggrieved by reason of the allegation that the crime occurred on August 4 and that such date was verified by the prosecutrix and her mother and that his alibi was predicated upon such allegation. But while the information alleged 'on or about the 4th day of August, 1954,' the prosecutrix testified that the acts complained of occurred on one of the days her mother had gone to visit her grandmother which was established to have been August 5, Dennis' birthday.
In the first place, proof of the occurrence of an act on the day following that alleged is not a...
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