People v. Burton

Decision Date09 February 1961
Docket NumberCr. 6726
Citation55 Cal.2d 328,359 P.2d 433,11 Cal.Rptr. 65
Parties, 359 P.2d 433 PEOPLE of the State of California, Respondent, v. Joe Orville BURTON, Appellant.
CourtCalifornia Supreme Court

Gladys Towles Root, Eugene V. McPherson and Robert Barnett, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Defendant appeals from a judgment of conviction pursuant to jury verdicts which found him guilty of two charges of violating Penal Code, § 288 (two lewd acts allegedly committed about an hour apart on August 15, 1958, against W, a seven-year-old girl), and from an order denying his motion for new trial. Defendant urges that W was not a competent witness, that defendant's right of cross-examination was improperly restricted, that prejudicial evidence was erroneously received, and that the trial judge deprived defendant of his right to a verdict fairly expressing the independent opinion of each juror. We have concluded that many of the matters of which defendant complains were not errors and that, in any event, no miscarriage of justice appears. Accordingly, the judgment should be affirmed (Cal.Const. art. VI, § 4 1/2).

The People's Evidence as to Events and Declarations of August 15 and 16, 1958. W is the seven-year-old stepdaughter of defendant. Mrs. Burton (defendant's wife and the mother of W) was away from the burton home, in the company of her brother and Mrs. Marie Brownen, from shortly after 9 p. m. on the night of August 15 until about 1:30 a. m. on August 16. Defendant was left with W, another stepdaughter five years of age, and a five-year-old neighbor boy. W testified that defendant, in the living room, twice 'made me play with his peter,' once while the younger children were in the yard and again after they had gone to bed in the girls' bedroom. W's testimony included further description of the circumstances of the two crimes.

When Mrs. Burton returned home in the early morning of August 16, with her brother and Mrs. Brownen, W was in bed in the children's room and defendant was in bed in the Burtons' room. Mrs. Burton testified as a witness for the People that she saw that W was awake; 'I asked her why she wasn't asleep and she said she just couldn't go to sleep.' Mrs. Burton began a quarrel with defendant and he hit her in the face with his elbow. She returned to W and said, 'You mustn't story to me. * * * What's the matter with you? Why can't you go to sleep? * * * You know you go to Sunday School every Sunday and Jesus in Heaven, he is supposed to protect you * * * You better tell the truth.' W then said (in the words previously quoted from her testimony) that defendant had sexually molested her. (Such words are the same general description of defendant's conduct that appears throughout W's testimony and extrajudicial declarations.)

Mrs. Brownen testified that immediately after W reported defendant's molestation, Mrs. Burton said to defendant, "Yes, you God damn son of a bitch, you have did this before and you've been doing it all the time.' He stated, 'Shut your God damn mouth or I'll break your neck.' * * * (S)he said, 'I'll have you threw in jail * * * I'll call an officer.' He said, 'Yes, and I'll break your God damn neck * * * Regardless. * * * It couldn't be no worse than you going to the bar and let some man feel up your dress * * *.'

In an interview by a deputy sheriff beginning at 5:20 a. m. on August 16, defendant denied that he had at any time molested W. The interview also includes the following statements:

Officer: 'Would you have any explanation as to why the little girl would say such a thing?'

Defendant: 'I have one, but it's my own. Course lotsa things I hear and, to this account, I've heard it for better than a year now. But * * * I don't know how to explain anything like that. * * * (Y)ou've got me there in a puzzle because if she wants something from me or wants me to do something for her, this that she can get around and accuse me of something like that to hold that over me and just like I told her mother better than a year ago, I said, 'You're gonna keep on * * * You've accused me of that * * *. You're gonna get me in trouble.' * * *'

Officer: 'What would * * * you say should * * * semen * * * be found on her body?'

Defendant: 'You mean like I had an intercourse with her? * * * Why, I'd be guilty.'

Officer: 'Well, we're having her checked over right now by a doctor.'

Defendant: 'Well, that's all right with me.'

Officer: 'And we will check * * * her clothing that she was wearing. We're going to have to check yours, too.'

Defendant: 'Well, you can check mine or hers either one, but as far as * * * my own, * * * I even had intercourse with my wife * * *.'

Officer: 'When ?'

Defendant: 'I guess it's been about it was either last night or night before.'

Officer: 'Well, that * * * would be * * * easily separated from anything that might have happened '

Defendant: 'You mean with her clothes on?


'As far as her as me bothering her I '.

Officer: 'Well, do you know of anybody else that might have been playing with her?'

Defendant: 'You mean a men? * * * No. Not that I know of, because I don't think I'd stand around and let it be done in the first place.'

A forensic chemist found semen stains on the nightgown worn by W and the shorts and trousers worn by defendant on the night of August 15.

Evidence as to Prior Similar Offenses of Defendant Against W. On direct examination W testified that defendant had committed the same crime against her on three prior occasions which she described. On cross-examination defense counsel asked W, 'Now, did your mother ever catch your (step)father * * * doing this to you?' and W answered, 'Not that I can remember of.' Defense counsel then read in evidence W's testimony at the preliminary hearing that on two previous occasions (neither of which was among the three prior instances related by W on direct examintion) 'mommy caught him' and on one of these occasions, when they lived near a Miss Blackstone, Mrs. Burton called the police. Further cross-examination of W showed that she was uncertain or did not recall whether 'mommy caught him' and also whether she had previously so testified. Thereafter defense counsel, to impeach the child, read in evidence her testimony at a former trial of this cause (which resulted in a hung jury); this testimony suggested that the child then had taken the position that her testimony at the preliminary hearing that 'mommy caught him' was incorrect and was given because 'I just forgot.'

Defense Evidence. Mrs. Burton, as a witness for defendant, testified that prior to the morning of August 16 W had never complained of molestation by defendant and that Mrs. Burton had never seen defendant mistreat W sexually or in any other way.

Defendant testified that he had never molested W. He and his stepfather, Mr. Stewart, testified that from soon after Mrs. Burton's departure on the evening of August 15 until shortly before her return on August 16, Mr. Stewart was in the Burton home, the children were in bed in their room, and during most of the time Mr. Burton was in bed in his room. This was corroborated by testimony of Mrs. Burton (that she saw Stewart's car approaching the Burton home as she left it shortly after 9 p. m.), a Mr. and Mrs. Hellen (that they stopped at the Burton home after 11 p. m., saw Stewart and defendant, and defendant apparently got up from bed to talk with them), and a Mr. Morse (that he stopped at the Burton home and talked with Stewart shortly before 12:30 a. m.).

Mr. and Mrs. Burton denied Mrs. Brownen's previously quoted description of their angry and profane exchange on the morning of August 16.

To explain the semen on the garments which defendant wore on August 15, Mr. and Mrs. Burton testified that shortly after 6 p. m. on that day they left their house, bought beer and groceries, and stopped on a mountain road and had sexual intercourse. 1 1 To explain the semen on W's nightgown Mrs. Burton testified that W and her little sister often got into the Burtons' bed; that this could have occurred after the Burtons had had sexual intercourse; and that the gown had not been washed for six weeks or more before the 15th because it was not worn very often.

We state the evidence at some length, and discuss defendant's claims of error in detail, because of the following circumstances: The evidence was, at least on the cold record, close and sharply conflicting. Also the following familiar psychological observations (in the words used by Sir Matthew Hale in the 17th century) apply: Accusation of a sex crime is 'easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent,' and 'the court and jury may with so much ease be imposed upon without great care and vigilance; the heinousness of the offense many times transporting the judge and jury with so much indignation, that they are over hastily carried to the conviction of the person accused thereof, by the confident testimony sometimes of malicious and false witnesses.' (1 Hale, Pleas of the Crown (1st American ed., 1847), pp. 634-635; People v. Benson (1856), 6 Cal. 221, 223; People v. Putnam (1942), 20 Cal.2d 885, 888, 891(4), 129 P.2d 367.) To properly appraise the effect of any error which may appear, an appellate court in reviewing a cause such as this must keep in mind these cautions, together with the fact that the People's case rests upon the testimony of a child of tender years, in this case a child who by her own testimony, has demonstrated that she was in some respects a witness of uncertain memory or capacity to distinguish between fact and fancy or suggestion. See People v. Adams (1939), 14 Cal.2d 154, 167-168, 93 P.2d 146; People v. Lamb (1953), 121 Cal.App.2d 838, 843 (1), 264 P.2d 126. This does not mean, of course, that the usual...

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