People v. Buchel

• Decision Date: 24 April 1956
• Docket Number: Cr. 2665
• Citation: 141 Cal.App.2d 91,296 P.2d 113
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George BUCHEL, Defendant and Appellant.

Page 113

296 P.2d 113

141 Cal.App.2d 91

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

Cr. 2665.

District Court of Appeal, Third District, California.

April 24, 1956.

Rehearing Denied May 8, 1956.

Hearing Denied May 23, 1956.

Leonard G. Husar, San Andreas, for appellant.

Edmund G. Brown, Atty. Gen., Doris H. Maier and Harold A. Bailin, Deputy Attys. Gen., for respondent.

SCHOTTKY, Justice.

Defendant was found guilty by a jury upon an amended information which accused him of a violation of Section 288 of the Penal Code in that he did 'wilfully and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of George M. Buchel, a child under the age of fourteen years, to wit, of the age of thirteen years, with the intent of arousing, appealing to, and gratifying the lust, passion and sexual desires of the said defendant'. Probation was denied and defendant's motion for a new trial was denied also. Judgment was pronounced and defendant has appealed from the judgment and from the order denying his motion for a new trial.

The record shows that George M. Buchel was the son of appellant and that the parents were divorced in 1948. The wife was granted custody of the three children, George, Dorothy Carleen, and Grace Lee. From time to time thereafter, the children visited the father in California, and he in turn visited the children in Oregon. Later on, the mother returned to California and remarried. The father (defendant) did not remarry. The trial commenced July 20, 1955, and at that time he was 51 years of age. Both daughters were married. For seven months, in 1952, the son, George, lived with his sister Carleen and her husband in Detroit, Michigan. On his return to California, he lived with his mother until early in 1954, and then with her consent and because father and son were mutually interested in machinery, he went to live with his father in Calaveras County.

Commencing early in 1954, the defendant and his thirteen year old son, George, also known as Butch, lived together during a period of 1954 and 1955 which included the month of April, 1954, at the defendant's cabin at Glencoe in Calaveras County. During the early part of 1954, the defendant and Butch slept together in one bed in the cabin, except when Butch's sister, Gracie, stayed with them for a brief period in May or June. At that time Gracie and Butch slept in a trailer house which had been divided into two rooms by a blanket. After Gracie left in the latter part of June, Butch sometimes slept in the trailer and sometimes in the cabin with the defendant. According to the boy's testimony, the defendant began committing sexual acts upon his son during April of 1954.

In view of the fact that it is not contended that the evidence was insufficient to support the judgment it is unnecessary to detail the sordid and revolting acts of sex perversion which the son testified were committed on numerous occasions from about April 1, 1954 until the son went to live with his mother in April, 1955.

During this period the boy's health began to decline. He began to feel ill and nervous. He was taken to various doctors but his health did not improve until he went to live with his mother. He also failed in school during this time. The boy did not complain to others of these occurrences until about two weeks after he went to live with his mother in Railroad Flat. Report was made to the authorities within three days after he told his mother of these acts. Butch explained that his delay in complaining was because he was 'scared'. He was afraid that his dad would have to go to jail and that he would hurt him, the boy, when he got out of jail because of a conversation they had when the boy and his father were on the way to see a doctor in Stockton. The incident was related on direct examination as follows:

'Q. What made you think, George, that he might have to go to the penitentiary? A. Well, on the way to the specialist down in Stockton one day he said to tell them somebody back in Detroit did it to me, or otherwise he would have to go to jail.'

The incident was amplied during cross-examination to the effect that defendant told the boy to say that some man had done it to him while he was in Detroit. These sexual activities continued more or less regularly from shortly after the boy came to live with the defendant until about two weeks before the boy went to live with his mother. The acts were discontinued only after the boy repeatedly complained that he was sick. After leaving his father, Butch's health and schoolwork considerably improved and he was no longer as nervous.

Defendant took the stand in his own defense and denied that he committed the acts related by his son. Several character witnesses were presented on behalf of the defendant who testified that the defendant's reputation for chastity and morality in the community was good and that the reputation of the boy for truth and veracity was bad.

In rebuttal, the prosecution presented Carleen, defendant's eldest daughter, who testified that defendant had once committed acts of a sexual nature upon her. These acts were characterized as oral copulation. The prosecution also called Grace, the fifteen year old daughter of defendant, who testified that defendant had forcibly had sexual intercourse with her during the summer of 1954 and that on another occasion he had propositioned her by offering her $20 if she would go into his bedroom with him. Grace had attempted to report this incident to her teacher who was also one of defendant's character witnesses. Defense counsel's objection to the indicated rebuttal testimony was overruled. The court refused to admit defense evidence that the boy had discussed unnatural sexual activities with one of his playmates and also cross-examination concerning the boy's having been disciplined at school for lewd and vulgar drawings and conversations with younger students.

In arguing for a reversal of the judgment and order, appellant contends that the court erred, (1) in unduly restricting the cross-examination of the prosecuting witness; (2) in allowing improper cross-examination of appellant's character witnesses; (3) in failing to give a proper cautionary instruction; and, (4) in its instructions with relation to the offenses.

In support of his first contention appellant states:

'In the present case the court unduly and prejudicially restricted cross-examination by defendant in such respect. He sought by cross-examination to prove or lay the foundation for proving that about two years before the boy alleged his father committed and initiated such acts upon him in California, the boy had become familiar with such acts, actively and passively, in Michigan. In that connection he sought to prove or lay the foundation for proving admissions made by the boy in conversations with another boy at the latter's home, and also in conversations with the mother of this other boy. And in that connection he also sought to prove or lay the foundation for proving that activities pertaining to sex had resulted in the boy being disciplined at school. That such evidence, if admitted, would have discredited or tended to discredit the testimony of the boy and demonstrate the falsity of his accusations against his father, is obvious. That it was proper cross-examination, is also obvious. By the rulings of the court excluding such evidence and rejecting offers of proof defendant was deprived of a substantial part of his defense.'

The son, George, denied that he had made any such admissions or statements and the court sustained the People's objections to any further questioning as to this. Defense counsel subsequently made an offer of proof to the effect that the two boys, Tommie and the prosecuting witness, had several conversations upon the subject of sex, including discussions of unnatural sexual activities. In particular, counsel offered to prove a conversation which took place in February or March of 1954 at Tommie's home in West Point, in which the prosecuting witness had stated that he had participated in unnatural acts while 'back east' and that during these conversations the obscene synonyms for sodomy and oral copulation were used.

We do not believe that the court erred in these rulings, nor do we believe that appellant suffered any prejudice from such rulings. The son George denied any such statements or admissions as to any such occurrences in Michigan, and conversations by the son with a schoolmate as to sex or unnatural sexual activities were not material to the issue here involved and in any event would be more harmful than helpful to appellant's case, because if they did take place they could well be regarded as the result of the acts charged against appellant and testified to by the son.

Appellant next contends that the court erred in permitting certain questions to be asked by the district attorney in his cross-examination of appellant's character witnesses. After two of appellant's witnesses had testified that his reputation for chastity was good, the district attorney was permitted on cross-examination, over appellant's objections, to ask each of them if they had heard defendant accused of immoral conduct with his daughters, and whether, if they had heard of it, it would affect their opinion of appellant.

So far as the questions asking appellant's character witnesses if they had heard reports of any sex offenses by appellant, they would not be improper if asked in good faith by the district attorney, for as stated in People v. McKenna, 11 Cal.2d 327, at pages 335-336, 79 P.2d 1065, at page 1069:

'* * * In the absence of a showing of bad faith it is always within the scope of legitimate cross-examination to ask a character witness whether he has heard the person whose reputation is under investigation accused of conduct inconsistent with the character...