People v. Haxby

• Decision Date: 21 June 1962
• Docket Number: Cr. 7801
• Citation: 204 Cal.App.2d 791,22 Cal.Rptr. 803
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Harold HAXBY, Jr., Defendant and Appellant.

Page 803

22 Cal.Rptr. 803

204 Cal.App.2d 791

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Harold HAXBY, Jr., Defendant and Appellant.

Cr. 7801.

District Court of Appeal, Second District, Division 4, California.

June 21, 1962.

Rehearing Denied July 16, 1962.

Hearing Denied Aug. 15, 1962.

Leon Mayer, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Herbert Davis, Deputy Atty. Gen., for plaintiff and respondent.

BURKE, Presiding Justice.

By information defendant was charged in four counts with violations of section 288 of the Penal Code. Counts I and II alleged violations upon Claudia, a neighborhood girl, and Counts III and IV alleged violations upon Joyce, one of defendant's daughters. A jury trial having been duly waived, defendant was found guilty by the court on Counts I and II and not guilty on Counts III and IV. He appeals from the 'judgment of conviction,' the order denying a new trial and the order finding him a probable sexual psychopath.

Penal Code section 1237, subdivision 1, permits an appeal from a final 'judgment of conviction.' The criminal proceedings in the instant case were suspended pursuant to the trial court's order committing defendant to Atascadero State Hospital as a probable sexual psychopath and in accordance with the provisions of the Welfare and Institutions Code, section 5501. Hence no final judgment of conviction was entered and the appeal from such purported judgment (none existing) must be dismissed. (People v. Niendorf, 197 A.C.A. 622, 624, 17 Cal.Rptr. 467; People v. Bales, 180 Cal.App.2d 16, 18, 4 Cal.Rptr. 205.) Defendant's appeal from the order denying a new trial, however, is proper. (Pen.Code, § 1237, subd. 2.)

The state's principal witness, Claudia, was ten years old at the time of the trial. She lived across the street from defendant's residence. She frequently played in the Haxby home with the Haxby children of which there are four. Most of her time was spent with Joyce, one of the defendant's daughters.

Claudia testified defendant had committed certain acts upon her which would violate section 288 of the Penal Code. These acts were stated to have been committed on four or five occasions in defendant's bedroom, with Claudia and Joyce both being present and with defendant committing the same actions with each child. The People introduced no evidence regarding the acts concerning Joyce and defendant was found not guilty of these counts. The charges related to acts occurring in August 1959 and July 1960. Claudia was very indefinite as to when the acts actually occurred and finally stated they were sometime before Halloween of 1960. Claudia's first mention of defendant's conduct was in early 1961 at least three and one-half months from the date of the last occurrence and some sixteen or seventeen months after the first act charged.

On appeal defendant first contends that he was unduly restricted by the court in the cross-examination of Claudia upon whose uncorroborated testimony defendant was found guilty.

One of the questions to which objection was sustained, of which defendant complains, was as to whether Claudia enjoyed what defendant was doing to her. There was no showing of materiality of this question and no offer of proof by defendant in connection therewith, and under such circumstances there was no error in sustaining the objection to this question.

In another question defense counsel asked Claudia what she had heard from other children about sex, to which objection was sustained. Just prior to this question being asked Claudia had been asked the source of her naming the male sexual organ 'the lone ranger' and she related a joke she had heard at school in which it was so called and in which the female sexual organ was referred to as 'the canyon.' It was at this point that defense counsel inquired as to whether she had heard some girls talking about matters involving sex, to which she replied in the affirmative. He then asked her what she had heard, to which question an objection was sustained. Here, again, no offer of proof was made as to the materiality of the question, and under ordinary circumstances the sustaining of the objection would be within the wide discretion allowed the court in deciding such matters. However, a close reading of the entire transcript reveals a very unusual set of circumstances which points up the wisdom of the basic rules of law applicable here.

While the law reposes a wide discretion in the trial judge in dealing with the latitude of cross-examination in these cases (People v. Garcia, 174 Cal.App.2d 525, 533, 344 P.2d 855), where the testimony of a young child alone is sufficient to sustain a conviction the law requires the trial judge to allow a great deal of leeway in cross-examination. (Wigmore on Evidence, 3d ed., vol. 3, pp. 459-460; People v. Hurlburt, 166 Cal.App.2d 334, 338, 333 P.2d 82, 75 A.L.R.2d 500.)

In the instant case the evidence reveals that these charges against defendant were brought to light as a result of a conversation between Claudia and the daughter of a next door neighbor of defendant. Claudia was spending Halloween night with the neighbor family. The girls were discussing dating and Claudia had told the neighbor girl that she used to date Mr. Haxby, the defendant. These particular neighbors were the ones who apparently instigated an investigation into the conduct of defendant. When defense counsel sought to inquire into the circumstances under which these charges came to light, the court sustained objections to such questions. In the investigation both Claudia and defendant's daughter, Joyce, told the police and also a school official that the acts, described by Claudia at the trial, had taken place when the two children were present together with defendant in his bedroom.

Mrs. Haxby, defendant's wife, testified that she was brought to the district attorney's office and confronted with the story and was importuned to sign the complaint against her husband, being told that he was an ill person and that it would be better for him if she were to sign the complaint. Finally, she stated, she was told if she did not sign it the investigating police sergeant would do so. Mrs. Haxby testified at the trial that she was 'overwhelmed' by the facts 'represented...