People v. Clark, Cr. 935

• Decision Date: 01 April 1953
• Docket Number: Cr. 935
• Citation: 117 Cal.App.2d 134,255 P.2d 79
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. CLARK et al.

Page 79

255 P.2d 79

117 Cal.App.2d 134

PEOPLE v. CLARK et al.

Cr. 935.

District Court of Appeal, Fourth District, California.

April 1, 1953.

Hearing Denied April 30, 1953.

Samuel Hurwitz, Orange, for appellants.

Edmund G. Brown, Atty. Gen., and Michael J. Clemens, Deputy Atty. Gen., for respondent.

BARNARD, Presiding Justice.

The defendants were jointly charged with a violation of section 288 of the Penal Code, and a jury found each of them guilty. Their motion for a new trial and application for probation were denied, and judgment was entered referring them to the Youth Authority. They have appealed from the judgment and from the order denying their motion for a new trial.

The defendants were High School students, each being 18 years of age. The complaining witness was a 12-year-old orphan girl living with her grandmother in an apartment in Anaheim. On the evening of May 16, 1952, she left home to go to a picture show. In front of the theater she met four friends and decided to accompany them to a high school dance in Fullerton. She left this affair about 10:00 o'clock and was walking to the bus station, to take a bus to Anaheim, when the defendants came along in an automobile and took her in the car. She testified that one of the defendants grabbed her and forced her into the car, but the latter part of this was struck out as a conclusion. She then testified that the defendants took her to the vicinity of Anaheim, went off on a side road and stopped in an orange grove. It would serve no useful purpose to set forth her testimony as to what there occurred. If believed, this testimony was ample to establish all elements of the offense charged, and would be sufficient to show an attempted rape. She testified that each of the defendants performed the same acts; that they then drove back and let her out near her home; that she was crying; that a preacher and his wife were there, and her grandmother came up just then; that she told the minister and her grandmother about what had occurred; and that 'they took me to the hospital.'

A doctor at the hospital testified that he examined her about 11:00 P. M.; that she was crying and shrieking; that her panties were wet for about a quarter of their surface and sticky; that there was an odor resembling fresh seminal fluid, defining it; that he found that the hymen was not broken; that he took fluid from the vaginal canal, and placed a drop on each of two slides; that he made a microscopic examination of these slides and observed no 'moving' sperm; that he had neither time nor facilities to make other tests to see if sperm were present; that it was possible for semen and sperm to get in there even though the hymen was not ruptured; and that he turned the panties and the slides over to a police officer that same night. The police officer turned these slides over to a deputy sheriff, Captain Sharp, who was in charge of the Bureau of Identification. Sharp testified that he examined the slides under a microscope and identified five human spermatozoa. He made a photograph of one of these slides, which was received in evidence. The doctor was shown this picture on cross-examination and testified that the objects which appeared in the photograph looked like male sperm.

A police lieutenant, Taylor, testified that on the night of May 16, he went to the hospital in Anaheim in response to a call; that this girl told him what had occurred and gave him a description of the three defendants so that he could put out a police broadcast to pick them up; that shortly after midnight he was informed that the defendants had been picked up and were at the Santa Ana police station; that he went there and had the girl and her grandmother brought there; that the girl identified these defendants as the persons in question; that in the presence of the girl, the defendant Hewlett said 'She has identified me. I am the boy that she was telling you about'; and that he then interviewed each of the defendants alone. His testimony was that each of the boys told him about the same story. In substance, this was that someone at the Fullerton school suggested that they give this girl a ride to Anaheim; that they drove down the street and offered her a ride; that she got in the car voluntarily, saying she had to go home to Anaheim; that on the way to Anaheim they drove onto a side street and into an orange grove; that each in turn had attempted to have sexual intercourse with her 'but it wasn't possible'; that two of them said they had excreted semen, one said that he had not; that one said that he could not have intercourse with her because she was too small or too tight; and that they also said that they had changed cars because they were afraid they might be picked up by the police, since the girl was crying when she got out of their car. Another officer testified that he was present and heard these same conversations. Taylor further testified that as he was taking the boys back to Anaheim that night they were talking among themselves and he heard them say that they did not know the girl was 12 years old; that they thought she was 16 or 18; and that if they had known she was only 12 they would not have done anything like they did.

Another officer testified that he had a conversation with the defendant Gallegly a week or two after this incident in which Gallegly, in referring to the happening on the night of May 16, told him that when the defendants found that the girl was a virgin they 'quit fooling around' and took her home. The chief of police in Anaheim testified that on the next morning, May 17, he had a conversation in his office with the defendant Clark and his mother, and that Clark told him, in his mother's presence, that he had attempted intercourse with this girl on the night before.

Each of the defendants took the stand and testified. They admitted taking the girl into their car, going to the orange orchard, and stopping there. They each denied committing any of the acts of which they were accused, and denied making any of the admissions that were testified to by Lieutenant Taylor. Their story was that they went to the school affair at Fullerton and then decided to go to one in Santa Ana; that as they were leaving some fellow asked them to give this girl a ride to Anaheim; that they went down the street and saw her walking; that they offered her a ride to Anaheim and she accepted; that as she was telling them where to go she told them to turn into the side road, and then told them to stop in the orange orchard; that they did not see any house but she told them there was one in back; that she told them she was afraid of her stepfather and did not want to go in, and wanted them to take her with them to Santa Ana; that they refused to do this and, after a little discussion, she asked them to take her to her grandmother's place in Anaheim; that they did so, and she was not crying when she got out; that they changed cars because one of the boys did not want to leave his car where it was parked; and that they were then arrested.

It is first contended that the evidence is insufficient to support the verdict. It is argued that the only direct evidence of guilt was the testimony of the girl, the rest being circumstantial; that the girl did not describe what was done in the usual manner, resulting in a 'paradoxical situation' where the officers told of the defendants' admission of things which the girl herself had not described in similar language; that the girl concocted her story in order to distract her grandmother's attention from the fact that she had been to a dance and was coming home late; and that it clearly appears that the trial judge did not believe the girl's testimony.

The testimony of the girl was amply sufficient in itself to support the verdicts. Her testimony was strongly corroborated by that of her grandmother as to her condition when she arrived home and of her immediate complaint, and by that of the doctor as to the condition of a part of her clothes, and as to the result of an examination almost immediately afterward. It was further corroborated by the testimony of four officers with respect to the admissions made by the defendants, most of them very shortly after the incident occurred. It is not argued that the girl's testimony is inherently improbable or unbelievable, but it is claimed that there are inconsistencies and uncertainties in her testimony. This is only natural in view of her tender age, the fact that she had been badly frightened, and the time that had elapsed. There is nothing unusual or unnatural in the fact that she did not go into some of the details or use some of the language that might have been expected from an adult witness. The argument that the trial judge did not believe the girl's testimony is based on a remark made by him in denying the motion for a new trial. He then said: '* * * the girl's testimony is not very satisfactory in many respects, perhaps it is typical of a little girl's testimony. I do not believe the girl is too smart, and as far as that is concerned she didn't make a very good witness. Had she been the only witness, I am sure that the verdict would have been not guilty.' On the same occasion he further said: 'I have no doubt in my mind whatever as to the guilt of the defendants,' and when counsel for the defendants asked to have the charge reduced to that of contributing to the delinquency of a minor as an included offense, he denied the request saying 'I feel that they are not telling the truth, and they perjured themselves on the witness stand and committed another felony when they did that, and they are all sticking together when they do that.' The admission made by one of the defendants was somewhat confirmed by equivocal testimony of his mother. After testifying that she was in the office of the police chief the next morning, she was asked whether she had then said to her son ...