People v. Bentley, Cr. 5240

• Decision Date: 21 March 1955
• Docket Number: Cr. 5240
• Citation: 281 P.2d 1,131 Cal.App.2d 687
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George E. BENTLEY, Defendant and Appellant.

Page 1

281 P.2d 1

131 Cal.App.2d 687

The PEOPLE of the State of California, Plaintiff and Respondent, v. George E. BENTLEY, Defendant and Appellant.

Cr. 5240.

District Court of Appeal, Second District, Division 3, California.

March 21, 1955.

Rehearing Denied April 4, 1955.

Hearing Denied April 20, 1955.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

Defendant was convicted of a violation of section 288 of the Penal Code. He appeals from the judgment and the order denying his motion for a new trial. The complaining witness, a girl 8 years of age, testified that defendant committed acts denounced by the statute.

The complaining witness testified she did not tell her mother what had happened on the day the alleged offense took place but she told her later; she did not tell her all at once but she did tell her in parts. The mother testified that the girl made a complaint on the day after it occurred, that she did not tell very much that day but told enough, that she told a little more the next day, and a little more the day after that.

A police officer testified he had a conversation with defendant one week after the offense was alleged to have occurred in which defendant denied any fondling or touching of the child. In concluding the statement of the conversation, the officer said, 'And I went on to question him about activities he had been involved in in 1942 when he had been a suspect in another case, and he denied this.' On motion of defendant the quoted statement was stricken and the jury admonished to disregard it. Defendant then moved for a mistrial, which was denied.

Five character witnesses testified that defendant's reputation for morality was, variously, good, very good, and excellent. On cross-examination of four of the character witnesses, the district attorney asked each of them whether he had ever heard a report that defendant had been arrested on a prior occasion for the same charge for which he was on trial and whether he had ever heard a report to the effect that defendant was charged by a girl named Tomlinson 'for the same type of offense' as that for which he was on trial. In addition, two of the character witnesses were asked if they had ever heard a report that defendant had molested a minor child by the name of Johnson in the neighborhood. Each witness testified he had heard no such report.

Thereafter defendant, testifying in his own behalf, was asked by his counsel if he had ever been arrested before for any charge involving mistreatment of a minor child. He answered that he had not. He was also asked by his counsel if he had ever molested or annoyed a child by the name of Tomlinson. He answered that he had not; that he had 'never heard of it until yesterday.' He was also asked if he had ever molested or annoyed a child by the name of Johnson. He answered that he had not; that he did not 'have the faintest idea what Johnson is being referred to.' In rebuttal the People called Mary Sue Tomlinson, 18 years of age, who, over objection of defendant, testified that defendant had committed acts on her, denounced by section 288 of the Penal Code, some 10 or 11 years ago. On surrebuttal defendant denied the accusation.

Mazie Tomlinson, mother of Mary Sue, called by the People in rebuttal, on direct examination testified that defendant's reputation in the community for morality was bad. On cross-examination she was asked if she had discussed defendant's reputation with other people. She answered, 'Well, I think if a man tries to date up all the married women in the neighborhood, I wouldn't call that--I don't know if that is morality or not. It isn't considered that----.' Defendant moved to strike the answer and asked the court to admonish the jury to disregard it. Instead of ruling on the motion, the court interrogated the witness and brought out that she had never discussed defendant's character or reputation with 'anybody else.'

Defendant urges that the statement of the police officer, together with the failure of the court to rule on the motion to strike the answer of Mazie Tomlinson, were prejudicial and on the facts compel a reversal. We agree. While the testimony of the prosecuting witness was sufficient to support the verdict, it leaves one in some doubt. There is a strong indication of coaching in her testimony. She testified that defendant touched her 'vagina' that she touched his 'penis.' Her mother taught her these words. The susceptibility of a child her age to suggestion is a well-known fact. The police officer who had the conversation with defendant a week after the offense was claimed to have been committed testified he 'heard a verbal statement from her mother'; that what had happened was not clear to him; 'As I talked to her mother, she informed me the little girl hadn't told her just where Mr. Bentley had touched her or what had...