People v. Herman, Cr. 4412

• Decision Date: 28 April 1950
• Docket Number: Cr. 4412
• Citation: 217 P.2d 440,97 Cal.App.2d 272
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. HERMAN.

Page 440

217 P.2d 440

97 Cal.App.2d 272

PEOPLE v. HERMAN.

Cr. 4412.

District Court of Appeal, Second District, Division 3, California.

April 28, 1950.

Morris Lavine, Los Angeles, for appellant.

Fred N. Howser, Attorney General, Gilbert Harelson, Deputy Attorney General, for respondent.

WOOD, Justice.

In a jury trial, defendant was convicted of two counts of the crime of incest, in that, he had sexual intercourse with his daughter on December 29, 1948, and on January 16, 1949. He appeals from 'the conviction, judgment and sentence and the denial of a Motion for an New Trial.'

Appellant asserts that the evidence is insufficient to support the verdicts. One of his arguments is that he is not the father of the prosecutrix.

Viola Marie Herman testified as follows: She became 16 years of age on May 14, 1948. She always knew the defendant as her father. She called him 'father,' and he called her 'daughter.' From the earliest time she could remember until she was 8 years old, he lived in the same house where she and her mother lived in Cleveland, Ohio. He left her and her mother when she (Viola) was 8 years old. When Viola was 9 years old, her mother divorced defendant and married Mr. Deubel. After the marriage Viola did not see Mr. Deubel for about 4 years--he was in the army. In 1946, when she was 14 years old, she and her mother went to live with Mr. Deubel, and Mr. Deubel adopted Viola, and at the time of the trial she had 'the name of Deubel.' In August, 1948, defendant telephoned to Viola in Cleveland and asked her to come to Los Angeles. He 'wired' an airplane ticket to her, and she arrived in Los Angeles on November 20, 1948. She went to live with defendant at his apartment, and she slept in a bed in the living room, and he slept on a couch in the dining room. There was an archway between those rooms. She had sexual intercourse with defendant on December 29, 1948, and on January 16, 1949. The latter act occurred on the couch in the dining room, and at that time her boy friend, one Dodd, was asleep in the bed in the living room. She had sexual intercourse with defendant 11 times and with Dodd 4 times. On February 7, 1949, at the request of defendant, she had sexual intercourse in the apartment with William Brown in the presence of defendant, and during that occurrence defendant took several pictures of her and Brown. (She identified 2 pictures, then shown to her, as 2 of those pictures. The pictures were received in evidence as People's exhibits 1 and 2.) For several hours prior to the time the pictures were taken, she and her father had been 'drinking,' and she had about 15 drinks. After the pictures were taken, she and the defendant were in 'the car,' and he had been hitting her and she 'jumped out and ran down the street.' While defendant had her up against a building trying to quiet her she kept screaming, and the police came and took her to juvenile hall.

A police officer, who investigated the case, testified that he asked the defendant why he had been fighting his daughter, and he replied that he and another man had been drinking with her and she decided to go to her home in Cleveland and they had an argument about going to the juvenile division; that he asked defendant if the girl, Viola, was his daughter, and the defendant replied, 'Yes, that is my daughter.' The officer also testified that defendant said that he never had sexual intercourse with Viola; that he (officer) showed two pictures (People's exhibits 1 and 2) to defendant and asked him if he had taken the pictures, and defendant replied that he had taken them to protect himself from any accusations made by his daughter regarding him; and that the defendant said the woman in the pictures was his daughter, Viola.

The judge of the juvenile court testified that at a pre-detention hearing in the juvenile court, pertaining to Viola, he asked the defendant if defendant was the father of Viola, and that defendant replied, 'Yes.' He also testified that on another occasion, when the defendant was requesting that the court grant Viola permission to marry Dodd, the defendant said he (defendant) was the father of Viola.

A deputy probation officer testified that defendant told her that he was the father of Viola. A police officer, who arrested defendant, testified that defendant said he (defendant) was the father of Viola.

Defendant testified in part as follows: He had been married to Viola's mother, and he separated from her in April, 1931, at Cleveland, and then he had gone to Washington, D. C., where he stayed 8 months. He went to Peoria, Illinois, on January 12, 1932, and there resumed marriage relationship with his wife. He had no sexual intercourse with his wife after April, 1931, and prior to January 12, 1932. He stayed in Peoria until July, 1932, and during that time his wife told him that she was going to give birth to a child, and she asked him if she could say that it was defendant's child. The child, Viola, was born about May 15, 1932. He allowed his name to be used for the child because he liked her monther. The mother and defendant agreed that they would never tell Viola who she 'really was.' Viola wrote several letters to defendant begging him to let her come to Los Angeles. After she had been with him and his second wife about 2 weeks, he returned home from work and found his second wife and Viola very much intoxicated. His second wife returned to her former home in Michigan, and he told Viola that he wanted her to return to Cleveland. She said that she did not want to go there and that if he did not keep her, she would tell 'them' that it was defendant who had had sexual relations with her and that it was not Dodd. He never had sexual intercourse with Viola. On February 7th, the day the pictures were taken, William Brown came to defendant's apartment and after Brown had been there about three hours with defendant and Viola the defendant went away and returned in about half an hour. When he returned and entered the apartment he saw Viola and Brown in bed having sexual intercourse, and he took 2 pictures of them, and he said, 'This will show that I haven't done anything to you, Viola, this is one thing you are not going to blame me for.' He then threw Brown out of the apartment. Later that night, while defendant and Viola were fighting in the street, they were arrested, and thereafter they were taken to juvenile hall.

The evidence was sufficient to support the finding of the jury that appellant is the father of Viola, the prosecutrix. Cf. People v. Schafer, 12 Cal.App.2d 5, 6, 54 P.2d 733; People v. Roberts, 82 Cal.App.2d 654, 187 P.2d 27.

Appellant also argues, regarding the alleged insufficiency of the evidence, that the testimony of the prosecutrix is inherently improbable. In this respect, he asserts that it is improbable that she would have sexual intercourse with appellant while her friend Dodd was in the next room. She testified that the act referred to occurred on January 16th about 7 a. m., that she, Dodd, and appellant had 'been up' during all of the two preceding nights drinking and bowling, that they had not slept during the two preceding days and nights, that at the time of said act Dodd had had 'a lot of drinks,' he was sleeping, he was 'out.' The testimony was not inherently improbable.

Appellant also argues that the evidence was insufficient because the prosecutrix was an accomplice and her testimony was uncorroborated. In People v. Pettis, 95 Cal.App.2d 790, at page 793, 213 P.2d 731, at page 733, wherein the defendant was convicted of incest in that he had sexual intercourse with his seventeen year old daughter, it was said: '[T]he complaining witness being under the age of consent (Penal Code, section 261, subd. 1) she was not at law an accomplice. It therefore follows that her testimony alone was legally sufficient to sustain the conviction of the act charged.' The prosecutrix herein, who was sixteen years of age, was not an accomplice and it was not necessary that her testimony be corroborated.

Appellant contends that the court erred in receiving in evidence the photographs of Brown and the prosecutrix which were taken by appellant. He argues that the photographs were ...