People v. Goldberg

• Decision Date: 25 March 1952
• Docket Number: Cr. 2744
• Citation: 242 P.2d 116,110 Cal.App.2d 17
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. GOLDBERG.

Page 116

242 P.2d 116

110 Cal.App.2d 17

PEOPLE v. GOLDBERG.

Cr. 2744.

District Court of Appeal, First District, Division 1, California.

March 25, 1952.

Rehearing Denied April 9, 1952.

Hearing Denied April 24, 1952.

Paul Friedman, Clarence Desky, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., David K. Lener, Dep. Atty. Gen., for respondent.

PETERS, Presiding Justice.

Fred Goldberg was charged with two violations of section 288 of the Penal Code ¹, it being alleged that on August 9, 1950, he committed lewd and lascivious acts on Agnes, age eight, and on Patricia, age eleven. On the first trial the jury disagreed. On the second trial, the instant one, the jury returned a verdict of not guilty on the count relating to Agnes, but guilty on the count relating to Patricia, with a recommendation of leniency. Defendant was granted probation for five years on condition he be confined in the county jail for four months. He appeals from the order denying his motion for a new trial, and also purports to appeal from the judgment of conviction. Inasmuch as no judgment of conviction has been entered, the appeal therefrom must be dismissed.

The appellant teaches art in two junior high schools and in an art school. At the time of trial, he had been married to his present wife for thirteen and one-half years, had lived in San Francisco about three years, and in his then location about six months. The Goldbergs have a daughter, Marian, then age eight. Marian has two playmates, Agnes, also called 'Bonnie,' then eight years of age, and Patricia, then eleven and one-half years of age. The three children all live in the same neighborhood.

The evidence in support of the count relating to Agnes is slight, hazy and unconvincing. Inasmuch as the jury acquitted appellant of this charge, it is not necessary to refer to the evidence thereon.

Patricia's testimony was reasonably clear and coherent. She identified the defendant, and remembered the date the incidents occurred, namely, August 9, 1950. She testified that the three children had been playing at her home that morning; that about 12 o'clock they all went over to the Goldberg house; that appellant was there; that she remained there until sometime between 1:30 and 2 p. m.; that she was then dressed in pedal pushers with panties underneath; that during this period appellant twice, once while they were on a sofa and once while they were on a piano bench, put his hands underneath her clothes and onto her private parts. These two incidents occurred while the other two children were in and out of the living room-studio, a double room with an open door between, where the acts are alleged to have occurred. She also testified that while the other two girls were out of the room, and after the two acts above-described had occurred, appellant tried to kiss her and asked her to kiss him; that when she objected he said 'Sh'; that appellant then told her not to tell anyone what had happened. She stated that, prior to August 9th, although she had been a frequent visitor at the appellant's house, appellant had never before committed such acts.

On cross-examination Patricia testified that one of the acts occurred when the three girls and appellant were seated on a piano bench playing the piano, with Patricia seated on the bench between appellant's legs, and with the other girls one on each side. A piano bench of dark wood was introduced by appellant, he and his wife testifying that this was the only piano bench they ever owned, and the one in the house on August 9th. Patricia testified that it was not the bench then in the house. This was consistent with her testimony on the prior trial when she testified that the bench she remembered was of light wood, and larger than the one introduced by appellant. One of the attorneys for appellant, and a doctor, both family friends, testified that they had been in the Goldberg house many times before and after August 9th and had never seen any light-colored piano bench, but had seen the one introduced into evidence. The bench produced in court was too small to permit four persons to sit on it at one time. The piano was admittedly cream-colored.

Appellant denied committing any of the charged acts. His story is that on the morning of August 9th he taught school from 9 a. m. to 12 o'clock; that his wife worked; that their child, Marian, was left with a Mrs. Oppenheimer, who lived some distance from appellant's home; that he went from the art school to Mrs. Oppenheimer's, where he picked up Marian sometime after 12:30; and that he then took Marian home where he arrived at 1 or 1:05 p. m. Mrs. Goldberg also testified that Marian was at Mrs. Oppenheimer's that morning. Thus, appellant's story directly contradicts that of Patricia who had testified that Marian was playing with her and Agnes that morning, and that the three children went to the Goldberg home at about noon, and found Goldberg was then there. It should be mentioned that no school records were produced to corroborate appellant's story as to the hours he taught that day, nor were Mrs. Oppenheimer or Marian called as witnesses to corroborate appellant.

Appellant next testified that when he arrived near his home Patricia and Agnes were playing in the street; that they waved and called to Marian, and asked if they could come in and play with her; that they all went into the house and he prepared lunch; that he and Marian ate, and then the three girls went into Marian's room to play; that he washed the dishes, did some other household chores, and then went into the studio-living room to paint; that the room has a large bay window facing the street; that after painting for a short time he started to play the piano; that the three girls then came into the room, clustered around the piano and started to play on it; that he suggested that Patricia be allowed to play alone; that the and Patricia were seated on the piano stool when his daughter, Marian, started to tickle him and the other girls did likewise; that he tickled them back on their arms and sides, and they all had a little tussle. They all were laughing and having a good time. He was positive that at no time was he alone in the room with Patricia, denied that he and any of the children were at any time that day on the sofa, denied trying to kiss the prosecutrix, and denied committing the charged acts.

Goldberg and Patricia agree that sometime between 1:30 and 2 p. m. Patricia observed her father arriving home, and that Patricia then left the Goldberg house. Appellant testified that when Patricia left she was smiling and happy, and there is no evidence to the contrary.

The mother of Patricia testified that her daughter came home about 1:30 p. m. and immediately told her of the events in question; that her husband was then home and Patricia then told the story to her father; that they talked it over and Patricia started to cry; that they then had lunch and then Patricia and her father took a nap; that that night, after dinner, they decided to and did call the police; that Patricia told her story to the police. A police officer testified that this call came in about 7:30 p. m.; that he and another officer went out to talk to Patricia and her family; that after hearing the story they arrested appellant; and that the next day the other officer called on Agnes and secured the information that forms that count of that charge.

The evidence is uncontradicted that Agnes and Patricia before August 9th had been frequent visitors at the appellant's home, and that since that date they continue to play with Marian, but do not now visit her home.

Appellant makes a series of contentions. In his opening brief he does not cite one case in support of these contentions. He has not filed a reply brief, but in a letter to this court after argument cites one authority. He does not directly attack the sufficiency of the evidence. It must be conceded that this is a close case on the evidence. This is indicated by the fact that one jury disagreed, and that the present jury recommended leniency.

In these sex cases, because of the nature of the charged acts, it is seldom that direct corroborating evidence can be produced by either side, and the case must usually rise or fall on the credibility of the prosecuting witness and of the accused. That is peculiarly a jury question. If Patricia's story is true, appellant is guilty of the offense charged and should be punished. If appellant's story is true, he is innocent. The jury saw these two witnesses. It was properly instructed that such charges are difficult to disprove, and that the testimony of young girls who testify to such acts should be examined with care. In spite of these admonitions, it has found that Patricia told the truth and that appellant did not. This finding is binding on an appellate court. The evidence is sufficient to sustain the conviction.

Appellant charges that the jury was coerced into bringing in a guilty verdict. The record shows that the case was given the jury at 11:17 a. m. At 4:55 p. m. it returned to the courtroom and the following occurred:

'The Court: Who is the foreman? I understand you have not reached an agreement. The Foreman: We are unable to reach an agreement on either of the two charges.

'The Court: Without indicating which way you stand, could you give me the division by number only? The Foreman: Yes, 8 to 4 on one--4 to 8 on the other. I take that back. On the second, with Agnes----

'The Court: Well, I don't want to know which way. The Foreman: On the second one it was 10-2 for and on the other was 8-4 against. A Juror: No, 11-1.

'The Court: Well, I think maybe you ought to go back and deliberate a little more. I am not interested in how you stand, and I don't want to know how you stand insofar as which way is 'for.' I just want to know the division as to numbers. I understand that in one case it is 11-1, and in another case it is 10-2, is that...