Hutson v. United States, 14810.

• Decision Date: 30 October 1956
• Docket Number: No. 14810.,14810.
• Citation: 16 Alaska 485,238 F.2d 167
• Parties: Harold HUTSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

16 Alaska 485, 238 F.2d 167 (1956)

Harold HUTSON, Appellant, v. UNITED STATES of America, Appellee.

No. 14810.

United States Court of Appeals Ninth Circuit.

October 30, 1956.

George B. McNabb, Jr., Fairbanks, Alaska, Harold Hutson, in pro. per., for appellant.

George M. Yeager, U. S. Atty., Philip W. Morgan, Asst. U. S. Atty., Fairbanks, Alaska, for appellee.

Before DENMAN, Chief Judge, and BONE and BARNES, Circuit Judges.

BARNES, Circuit Judge.

For several hours during the late evening of March 28th, 1954, the appellant (hereinafter called the defendant) was the only adult in a house located at 508 Sixth Street, in a certain Alaskan city. The house also was occupied by two children, Virginia, aged eleven, and her little sister, aged five. Earlier that evening another adult, Joe Baird, had been at the house. In fact, "Uncle Joe" lived there, and was caring for the children in their mother's absence. The two adults had been drinking.

Next to the house mentioned lived the Perrys, at 512 Sixth Street. The defendant lived at 516 Sixth Street. The record does not disclose the distance these houses were apart, but we assume they were on the same side of the street and within a reasonably short walking distance of one another.

Joe Baird and the defendant and Virginia went into town to get an "E" string for her violin. They also got more liquor. They then returned to Virginia's home. The two girls and a third played outside. About the time the two girls came into the house, Joe borrowed a truck that defendant had himself borrowed, and according to the defendant went to an unmentioned destination, one-half mile away, to be back in ten minutes. According to Virginia, Joe left for more liquor. Virginia "snuck" back to her room and went to bed. Her sister came to bed with her. Thereafter, she testified the defendant came to the children's room, asked her to kiss him, and after her refusal, required her to perform an unnatural act. The girl said the defendant told her he had a gun, but she said she did not see any gun. She testified she was afraid; she subsequently ran next door to awaken her neighbors, the Perrys, by screaming and pounding on their door.

When Mrs. Perry was aroused from sleep and came downstairs at 1:00 a. m. to ascertain the cause of the loud knocking, screaming and talking, she opened the door, let Virginia in, and heard a man's voice say:

"What do you want to go in and bother them for, honey?" She testified Virginia was "barefooted, no outer wraps on, no hat" — dishevelled, crying, hysterical. She said, "He tried to make me do it".

Mr. Perry arrived from his bedroom, at the front door, heard screaming and screeching, saw his wife open the door and saw Virginia come in. He heard a voice he recognized as the defendant's say, "What do you want to bother those people for at this time of night for, honey?" These were "the exact words".

He grabbed his pants and a crowbar and rushed to the defendant's house. When he got there, the defendant was in bed "covered up". The witness saw no clothes. "I had that crowbar in my hand * * * over my head * * *. I accused him of it." Tr. p. 62

"He made a remark that if, something about you give me hard trouble or something like that, I have got a twenty-five automatic under the pillow. That is when I was standing over him with a crowbar." Tr. p. 64 Mr. Perry decided it was discreet to call the police rather than use the crowbar.

None of the government witnesses were cross-examined. The defense moved for a directed verdict of acquittal. It was argued at some length, and was denied.

The defendant testified in his own behalf. He entered Virginia's home at the invitation of his friend, Joe Baird, late in the evening of March 28th, 1954. Three little girls were present, playing about.

The defendant had borrowed a truck from a friend. He lent this truck to Joe Baird, who had said he would be back in ten minutes. About the time Joe Baird took the truck, Virginia and her five year old sister came into the house; said it was bedtime and asked the defendant to go home. The defendant said he couldn't go without his truck. Virginia went to bed in her bedroom. The defendant put the little girl to bed, "on the bed with her sister". This was twenty minutes after Joe had left.

The defendant testified he waited an hour or so, looking thru books.

He then asked Virginia, "where possibly could he have gone, that I had to have the truck."

Further, "when I was in the kitchen getting a drink someone came up on the porch. I called that to her attention."

The defendant was in the house "about three hours." The minor asked him three times to go home. "She got up mad because I wouldn't leave * * *, she ran by me out the door. I took out after her, tried to catch her." He followed her to Perrys'. "I asked her what was the matter with her, she said, `get away, get away'." Tr. p. 97

"Q. Did you during the course of the evening touch that little girl? A. No sir, I didn\'t.

"Q. Did she touch you? A. No sir, had no cause to." Tr. p. 97

The defendant was not cross-examined. The defendant renewed his motion for a directed verdict, which was denied.

The defendant urges first, that his trial should have been continued because of his request therefor; secondly, that after the jury had been picked, a continuance should have been granted him. Both of these matters were peculiarly within the discretion of the trial court.

Defendant found himself in serious trouble on March 28, 1954. On April 14th, 1954 (as appears from appellee's brief) he was bound over after a preliminary hearing. He was indicted on January 7th, 1955. He was arraigned on January 18, 1955. His trial was set for April 18th, 1955. At 10:00 a. m., the hour the jury reported to try the case, the defendant for the first time, asked for a continuance. The trial court carefully heard the matter, considered his counsel's affidavits, and, we think properly, denied the motion. Whatever we may think of the merits of the two motions, we cannot reverse, save for an abuse of discretion. Williams v. United States, 9 Cir., 203 F.2d 85, 86, certiorari denied 345 U.S. 1003, 73 S.Ct. 1149, 97 L.Ed. 1408. Here, we find none.

Defendant's third and fourth points are that his motions for acquittal at the close of the government's case, and at the close of the entire case, should have been granted. He points out inconsistencies in the testimony, and that his "testimony went unchallenged," and hence "should be accepted as true." His whole approach requests us to weigh and compare the evidence. That is the exclusive province of the jury. Las Vegas Merchant Plumbers Ass'n v. United States, 9 Cir., 1954, 210 F.2d 732, 742, certiorari denied 348 U.S. 817, 75 S.Ct. 29, 99 L.Ed. 645. That the jury did, and found him guilty on both counts:

I — Unnatural carnal copulation by means of the mouth.

II — Causing a minor to commit an act tending to cause such child to become a delinquent.

We cannot disturb such a verdict based on contradictory or conflicting testimony unless there is no substantial evidence of guilt. Adelman v. United States, 9 Cir., 1954, 216 F.2d 541, 543; Woodard Laboratories v. United States, 9 Cir., 1952, 198 F.2d 995, 998.

Looking at the testimony most favorably to the government, as we must on this appeal, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed 680; Adelman v. United States, supra, we have no hesitancy in saying there was sufficient evidence to go to the jury, and hence, to support the jury's verdict.

As part of appellant's third point, he urges error based upon alleged lack of corroboration, particularly here where appellant urges that the principal testimony relied upon to convict is that of an accomplice.

Appellant misunderstands what constitutes an accomplice. By its accepted definition it can be only one

"who knowingly, voluntarily, and with common intent with the principal offender unites with him in the commission of the crime." McLendon v. United States, 8 Cir., 19 F.2d 465. Wharton\'s Criminal Evidence, Vol. 2, 12th Ed., p. 229.

It is true that even in many sex crimes such as adultery, fornication, incest or sodomy, one who participates in the crime is an accomplice in the prosecution of the other involved. But the general rule has well recognized exceptions, such as where the crime is committed thru force, threats, duress, fraud, or undue influence. The reason for this is obvious — the intent necessary to constitute one an accomplice cannot coexist with the overcoming of the will which is an essential ingredient of defendant's forcing or fraudulent acts, as for example, rape. The same rule applies to statutory rape — not because the prosecutrix did not consent, but because she is deemed in law incapable of consent.

For the same reason, in some jurisdictions, a minor who is under the age of consent, or one who is too young to understand the nature of his act, and hence too young to be criminally accountable for his actions, is not deemed an accomplice.

In California, for example, a boy over fourteen was held to be an accomplice to the act of sodomy committed upon him, while a boy under fourteen was held not to be an accomplice where the evidence did not show he knew the wrongfulness of the act. People v. Singh, 121 Cal.App. 107, 8 P.2d 898.

It is true, as appellant by inference points out, that some jurisdictions have passed statutes that convictions of certain sexual crimes require corroboration by evidence other than that of the female injured. Such is the case in the statute cited in appellant's Reply Brief — relating to the trial of one charged with inveigling, enticing, or taking away an unmarried female for purposes of prostitution, or one charged with seduction or illicit connection with an unmarried female. Section 66-13-61, A.C.L.A. 1949.

But here the defendant is charged with violation of Section 65-9-10 of A.C.L.A. in Count I, and § 65-9-11 of the same in Count II. As to...