People v. Ernst, Cr. 4980

• Decision Date: 16 November 1953
• Docket Number: Cr. 4980
• Citation: 121 Cal.App.2d 287,263 P.2d 114
• Parties: PEOPLE v. ERNST.
• Court: California Court of Appeals Court of Appeals

Page 114

263 P.2d 114

121 Cal.App.2d 287

PEOPLE v. ERNST.

Cr. 4980.

District Court of Appeal, Second District, Division 2, California.

Nov. 16, 1953.

Rehearing Denied Nov. 30, 1953.

Hearing Denied Dec. 14, 1953.

Morris Lavine, Los Angeles, for appellant.

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

MOORE, Presiding Justice.

Appellant was convicted of violating section 288 of the Penal Code. ¹ After his motions for a new trial and arrest of judgment had been denied, proceedings were suspended and he was placed on probation for five years on terms, one of which required that he serve six months in the county jail. His grounds of appeal are the incompetency of the two child witnesses, the insufficiency of the evidence, errors in the court's rulings and instructions, disqualification of the judge and lack of jurisdiction.

About noon on January 31, 1952, appellant called at the home of Mrs. T and told her that since her daughter, referred to herein as 'X', was interested in taking dancing lessons, he desired to arrange for her to enroll in the school of Mrs. Todd who resided opposite to his home in Monterey Park, one block from Mrs. T's home. Such offer was politely rejected, X having already arranged for a visit to Mrs. Todd in the afternoon with her friend and schoolmate, Y. When X arrived at home from school, her mother had her accompany Y to the Todd home. On leaving Mrs Todd, the children found appellant seated in his truck in the street. He told X he was just going to call for her at her home and asked her to go into his house that he might comb her hair. Her mother had previously employed Mrs. Ernst to give X a permanent, at which time X first met appellant. After parking the truck in his driveway, the two children entered through the rear door of the home with appellant and were seated in the front room. After he had served them peppermint ice cream in a bowl, appellant directed X to go with him through the hallway into a small room and had Y remain where she was and look at a magazine. He had X sit on his lap and began to comb her hair. As he did so he placed his hand beneath her panties and rubbed her private parts for about a minute and asked her how she liked it. He then took X back to join Y and asked X whether she would like for him to comb Y's hair. After he had done so, the children departed. On the way home X told Y what had happened and immediately after arriving home she related her experience to her parents. Her father notified the police.

X was eight years old and Y was nine. The latter's testimony of the events outside the den was, in substance, the same as that of X. She added that (1) they were in appellant's home about twenty minutes, (2) as they were leaving, appellant called X back into the rear porch and talked to her out of Y's hearing, (3) while they were crossing the street, X was crying as she told about appellant's conduct.

The Children, Competent Witnesses.

Section 1880 of the Code of Civil Procedure forbids children under ten years of age to be witnesses if they 'appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.' That language imposes upon the trial judge in any case to determine whether a child under ten years is a competent witness. It means that if such child appears to the trial judge to have had the capacity to receive impressions and to relate them truthfully, he is a competent witness. Moreover, her testimony on the material issues indicates her competent intelligently to have received the impressions and intelligently to report them. And when the judge has heard the child testify in the matter, and 'has determined that it was a competent witness, such determination is not a matter of review any more than his ruling upon the capacity of any other witness.' People v. Harrison, 46 Cal.App.2d 779, 785, 117 P.2d 19, 22. The question as to the competency of a witness who has not reached his tenth year is addressed to the discretion of the trial court. People v. Goff, 100 Cal.App.2d 166, 170, 223 P.2d 27. In the Goff case, the prosecutrix was a child of five years. The court determined after her voir dire examination that she was qualified, and also after giving her testimony. It was held that there was no abuse of discretion. The competency of a child to testify is not determined entirely by its age but rather on its intelligence, its understanding of the meaning and solemnity of an oath. And when it exhibits the ability reasonably to state the facts and it thus qualifies, the trial court's finding will not be disturbed on appeal. People v. Manuel, 94 Cal.App.2d 20, 24, 209 P.2d 981. On a consideration of a court's finding of a child's competency, the entire record will be reviewed on appeal. People v. Arcia, 85 Cal.App.2d 127, 129, 192 P.2d 31; People v. Harrison, supra.

While X and Y did not answer all questions on voir dire as philosophers might have done, yet they gave correct answers to many. The testimony of each of them was responsive and coherent. Because it demonstrates that each was intelligent enough to receive impressions and capable of intelligibly relating them, any deficiency shown in her voir dire examination will be overlooked. People v. Harrison, supra, 46 Cal.App.2d at page 785, 117 P.2d at pages 22, 23. The narrative of X that she first met appellant at his home; that he kissed her there on two prior occasions on a Saturday and a Tuesday; that he met her and Y as they left Mrs. Todd's and asked them into his home; that he served them with peppermint ice cream and took her into an adjoining room to comb her hair--her testimony of those and subsequent events all sound like the testimony of a witness of understanding and are such proof as to justify the determination of the trial court.

The foregoing observations relative to X's qualification as a witness are equally applicable to Y.

Evidence Sufficient.

As corroboration of X's testimony, in addition to that of Y, her mother testified than on reaching home about 5 p. m. her daughter was crying, shaking and upset. She heard her 'tell Y that he rubbed her.' Her father reported the incident to Sergeant Hoiten who called and quizzed X for half an hour in the presence of the mother. The father testified that on her arrival home she was 'more or less hysterical.' When he called on the police, Sergeant Hoiten and a stenographer returned with him. After the interrogation, X directed the officer and her father to the residence of appellant. Sergeant Hoiten testified that in the evening he called at appellant's home and found a half carton of peppermint ice cream in the ice box. In response to the imputation of the interest of the parents in the political aspirations of appellant for the city council, both Mr. and Mrs. T testified that they had never heard his name mentioned during the councilmanic campaign in which Mr. T favored the election of one Marria.

The foregoing is a summary of all the proof adopted by the court. Appellant himself testified to an alibi and was persuasively supported by a number of witnesses. He urges here the strength of that defense. But while a verdict favorable to him, by virtue of his alibi, would have been supportable according to the rules of appellate procedure, it was rejected by the jury and the trial court. In such event, this court is powerless to interfere on the ground of the insufficiency of the evidence. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778. Also, counsel argues that there was no substantial evidence that the defendant had touched the body of X 'with intent to arouse her passions or his passions * * * she had no knowledge regarding it and there was no statement that the place rubbed was the sexual organs.' But the testimony of the child was that he rubbed her private parts. That she had 'no knowledge regarding it' renders his act even more culpable. That he referred to the rubbing and not to the combing was answered by the verdict. That the prosecution was based upon X's report of the incident in appellant's home and not upon his political aspirations was the finding of the jury.

No Prejudicial Error in Rulings.

Appellant contends that he was prejudiced by the court's ruling which permitted the prosecution to 'bring out new matters not brought out on direct examination' and then impeaching appellant by proving the untruth of the new matters elicited by the cross examination. Of course appellant's thesis is fundamental and is sound. But it is not the complete story. On direct examination appellant told that he was an investigator for the State Legislature of corrupt police departments; that his home had been searched and his reports had been tampered with. It was clear to the prosecutor that from such proof it would be contended that the police department of Monterey Park abhorred such investigation and had framed appellant for the purpose of halting the investigation or of minimizing the effect of appellant's reports. Such fear or suspicion on the part of the presecutor was reasonable and is proof of his alertness to the pitfalls of a criminal trial. It was therefore timely and appropriate that appellant be asked whether he had made a written report of his investigation of Monterey Park's Police Department and whether Sergeant Hoiten's name was mentioned. Over objection he answered that it was. Had the inquiry on this point ceased with appellant's testimony that his home had been searched and his reports 'tampered with,' the deduction that a cruel, corrupt and dishonest police force feared an investigation could have been drawn. Such deduction was to be prevented only by pursuing the inquiry until some concrete basis could be found whereby to repel any such unfair conclusion. Consequently, after appellant testified that he had made an investigation of the Police Department of Monterey Park, it was only fair to allow the People...