People v. Evans

• Decision Date: 09 July 1952
• Docket Number: Cr. 5308
• Citation: 246 P.2d 636,39 Cal.2d 242
• Parties: PEOPLE v. EVANS.
• Court: California Supreme Court

Page 636

246 P.2d 636

39 Cal.2d 242

PEOPLE v. EVANS.

Cr. 5308.

Supreme Court of California, in Bank.

July 9, 1952.

Rehearing Denied Aug. 7, 1952.

Popper & Burnstein, Fred B. Hart and Robert H. Kroninger, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondent.

CARTER, Justice.

Defendant, John W. Evans, Jr., was convicted of a violation of Section 288 of the Penal Code, and also of a violation of Section 288a of the same code. The court granted a new trial on the 288a count, but denied defendant's motion for a new trial on the 288 violation. A third count, charging assault with a deadly weapon, was dismissed prior to trial. Judgment was suspended and defendant was placed on probation on the condition that he serve a nine months' sentence in the county jail. After hearing, it was determined that the defendant was not a sexual psychopath. The appeal is from the order denying a new trial on the conviction under Section 288 of the Penal Code.

The principal contentions raised on this appeal are the insufficiency of the evidence so far as the element of identification is concerned and prejudicial errors alleged to have occurred during the course of the trial.

It clearly appears from the record that the complaining witness, a female child of 10 1/2 years, was accosted and molested in an Oakland public park about 6:00 p. m. on a Saturday evening (August 12, 1950) as she was leaving a swimming pool located there on her way home. According to her testimony, the man who accosted her pulled her behind a hill, disarranged her clothing and put his fingers in, and on, her private parts. She also complained that he exhibited his own sexual organs and attempted to force her to commit an unnatural act. She testified that he then drew a knife, telling her that she was to walk away and not look back or he would kill her. According to her story, the entire encounter took place in about five minutes. After leaving her assailant, the witness walked to a corner store where she first called the police who noted the time as 6:06 p. m. and then, a few minutes later, called her mother.

Identification of the Defendant:

Three days after the commission of the crime, the complaining witness was shown a picture of the defendant. This picture was on the top of a pile of pictures. She remembered having seen him some time prior to the day in question but was unable to remember where, or when, she had seen him. She admitted that she could have seen him almost any place. An hour after having been shown the defendant's picture, she was taken to a room where the defendant was alone. She testified that at the time of the offense her assailant was wearing tan khaki pants with a zipper fly, a belt with the initial 'W' on the puckle, and a yellow cable knit sweater with short sleeves. So far as the defendant's physical appearance was concerned, she testified that he was 5 11 tall, weighed 187 pounds, and was 21 years of age. On cross- examination she said he could not have been 5-10 tall, or 6 0 tall, but was 5 11 . (The defendant is 5 11 in height, 21 years of age, and, at the time of arrest, weighed 185 pounds.) The complaining witness testified that the man who accosted her had 'goo on his hair, you know, slicked down.' The record shows that the defendant owned khaki pants with a button fly, a yellow T shirt, a plain tan belt with no initial on the buckle; that he did not own, or have any reason to own, a buckle with the initial 'W' thereon; that he did own a belt buckle with the initials 'NMMI' (New Mexico Military Institute); that he wore no hair oil, nor did he own any. On the day in question, the defendant was wearing, together with khaki trousers and a yellow T shirt, the plain, uninitialed, web belt. He testified that the only time he wore the belt with the initials 'NMMI' was when he was dressed up at school. The defendant testified that the khaki trousers and yellow T shirt was a common manner of dress in the neighborhood. This is corroborated by two witnesses who testified that they had each seen a boy, not the defendant, similarly dressed, at the time of the crime, in that neighborhood, walking rapidly away from the park. These other boys were seen at about 6:10 and 6:30 p. m.

Darlene Hatton, aged 15 years, testified that she had been swimming in the pool in the park in question, and that shortly before the time of the offense, the defendant had been outside the wire fence which enclosed the pool, a distance of approximately 16 feet, and had whistled at her. She testified that the man who whistled at her slick, shiny hair 'plastered' down, but she did not testify as to how he was dressed. She thought that it was either Thursday or Friday of the week following the offense (which had taken place on a Saturday) that the woman who owned a candy concession at the park had shown her the picture of the defendant and asked her if she had ever seen him before. A few hours after seeing the one picture that of defendant she was taken to a police line-up where she identified the defendant as the man whose picture she had seen and who had whistled at her the previous Saturday. She, too, testified that she had seen the defendant before the day in question 'once or twice' at the Dimond Pool (the one here involved) but could not remember when she had seen him.

Defendant's brother testified that he and defense counsel, walking together, met the complaining witness and her mother in the courthouse just prior to the commencement of the trial and the attorney, pointing to defendant's brother, asked the child if she were still 'sure that this is the man who did it', to which she replied that she was. At the trial the child denied having said so, but the mother admitted that the question had been asked and answered by the child, but said that the witness, Robert Evans, was not in her line of vision.

The complaining witness admitted having told the story to police officers and the prosecuting attorney about ten times. In describing the attack on her she used the term 'private parts' and explained that the police officers had told her to use it; at the preliminary hearing, she had used the words 'penis' and 'vulva' and said at the trial that she had learned the words in a book her mother had given her but she didn't remember bow long before he mother had given her the book.

Defendant's Alibi:

Defendant's story, which was corroborated by his grandmother and brother, showed that by had worked around his home, a distance of about nine or ten blocks from the park, until approximately 5:30 p. m. on that Saturday; that he then drove to the store for some groceries and there cashed a check; that he returned home at about 5:55 p. m. and was at dinner until 6:30 p. m. One of the employees of the grocery store corroborated the defendant's story that the check was cashed on the Saturday in question but did not know at what time it had been done. Defendant testified that he had been in school in New Mexico up until the first of June, 1950, and that he had remained at home from that time on. He testified that he had been in Dimond Park two or three times since his return from school; that he had not been there on the day in question; that he had been there within two or three weeks prior to August 12th.

Prejudicial Errors and Misconduct Occurring at the trial:

Three days after the crime was committed, defendant, at the telephoned request of the police, went to the police station. He testified that at the time of the call he had been working on his radio with a small two-inch pocket knife which he put in his pocket when he left home; that when he arrived at the station, he remembered he had it with him and being afraid of having it found on his person since he did not know with what he was charged and having heard the officers mention a knife, he stuck it under the arch of his shoe with the open blade inserted in the heel. The knife was found there by the officers who searched him. It was later returned to him and was never put in evidence by the prosecution although a witness was called to testify to the incident and it was referred to as being of the same type and description as that carried by the man who attacked the complaining witness, although no evidence was offered either describing the knife carried by him or which would indicate that the one found on defendant's person was in any way connected with the attack. The knife was referred to in both the opening statement of the prosecution and in its closing argument as being the same type of knife carried by the girl's attacker. The girl herself was unable to describe the knife.

In addition to references to the knife, one of the witnesses, Dagneau, was questioned as follows: 'Well now, at the time that the police officers received the information from you as to having seen this man as approximately 6:05, or thereabouts, they asked you whether or not he was about twenty years old, tall and very strong looking; brown hair, brown eyes, dark hair on his forearms, freckles on his face, brown shoes, sun tan pants and a yellow shirt, age about 20 or 21, height about five feet eleven, weight 185.' This was the exact description of the defendant who was sitting in the courtroom. There had been no direct evidence as to the freckles, dark hair on the forearms, color of the eyes, etc. The witness was then asked if this was the description of the man the police were seeking to which he answered 'Yes.' The entire description was repeated a few questions later, and could only have had the effect of informing the jury that the police were looking for the defendant, and not for the girl's attacker, at the time they questioned the witness, Dagneau. The witness later testified that defendant was not the man he had seen running from the park although the man he had seen was wearing a yellow shirt of some type.

Several instances...