People v. Horner

Decision Date08 December 1955
Docket NumberCr. 5381
Citation290 P.2d 902,137 Cal.App.2d 615
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Paul George HORNER et al., Defendants, Paul George Horner, Betty Butler and Jean Lewis, Defendants and Appellants.

Paul K. Duffy, Los Angeles, for appellant Horner.

Alexander H. Schullman and Abe Mutchnik, Los Angeles, for appellant Butler.

Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Paul George Horner, Harry Jackson Legge, Betty Butler and Jean Lewis were charged with the offense of pandering, § 266i Pen.Code, for procuring for Bonnie, a female, a place as an inmate in a house of prostitution and, separately, of conspiring to commit the crime of pandering by procuring for said Bonnie a place as an inmate of a house of prostitution. Horner was separately charged with rape of said Bonnie, a female, 16 years of age; the defendants waived trial by jury and the case was submitted on testimony taken at the preliminary hearing and additional evidence taken at the trial. Defendants were found guilty as charged. Horner was sentenced to state prison upon the conviction of pandering and conspiracy to commit pandering, the sentences to run concurrently, and upon a conviction of rape, to the county jail, the sentence to run concurrently with the other two sentences. Horner and Betty Butler made motions for new trial which were denied. They appeal from the judgments and the orders.

Pursuant to leave granted at the time of the argument when Horner's attorney failed to appear, new counsel was engaged and a supplemental brief has been filed by Mr. Duffy.

We will consider first the appeal of Horner and the conviction of rape. Bonnie's age was established by competent evidence at 16 years. She testified that she had been employed by appellant and had had sexual intercourse with him 6 or 7 times during the preceding two years. Phillip Barnes, Los Angeles city police officer, testified to a conversation had with Horner at the police station in which Horner stated that Bonnie had worked for him, he loaned her $5; that she allowed him to have intercourse with her as a courtesy for the loan of the money; thereafter there were 3 or 4 similar occasions. Horner testified that Bonnie had worked for him and that he had known her for about a year and one-half. He denied having had intercourse with her.

It is contended that the information charged the commission of the offense on or about July 7, 1954 and that there was no evidence that the act took place on or about that date or on any other specific date. The prosecutrix testified that she probably saw appellant on or about July 7, 1954; she had intercourse with him 6 or 7 times over a period of two years and one of the times may have been on July 7. Appellant admitted having been with her on that date. His defense was that he had never had intercourse with her. In view of his denial, the date July 7, or any other specific date, was of no significance. 'Under the generally accepted rule in criminal law a variance is not regarded as material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense.' People v. Williams, 27 Cal.2d 220, 226, 163 P.2d 692, 695. In addition to the testimony of the prosecutrix and the testimony as to Horner's admissions to Officer Barnes, there was evidence of the close relationship between Bonnie and appellant, to be hereinafter related, which rendered it highly improbable that there was any truth in appellant's denials. From the entire evidence the trial court was fully justified in finding that the offense was committed on or about July 7, 1954.

The following is a summary of the evidence addressed to the charges of pandering and conspiracy to commit pandering. Bonnie testified that she asked Horner to help her and Legge, her paramour, raise money in order that they might get married. Horner called a person be addressed as 'Jean' and asked her to call some of her friends in an effort to help Bonnie and Legge. Later, after a second telephone call, Horner told Bonnie that Jean Lewis had suggested that she might go out to 'Betty's' to work and make some money. The 'Betty' was defendant Betty Butler. The matter discussed was that Bonnie would work as a prostitute and receive $10 or more per customer. Horner drove Bonnie to a drive-in restaurant where they waited until Betty Butler came. Bonnie was driven by Butler to the latter's home. Butler made a telephone call, a man came in, was introduced to Bonnie, Butler directed Bonnie where to take him; they went into a bedroom, had an act of sexual intercourse and the man paid Bonnie $20. Two other men came in, another woman in the house took one of the men to a bedroom and Bonnie took the other. She spent the night in the bedroom with the man and engaged in sexual intercourse; Butler gave her $15. The following morning Bonnie told Horner of these occurrences. She asked Horner to arrange with Jean for her to return to Butler's which Horner promised to do. Later Horner told her she could not return that night because all the girls who worked for Butler were there. The next day Bonnie asked Horner to arrange for her to return to Butler's. Horner called Jean who came to Horner's apartment with a woman known as 'Connie.' Horner told Bonnie that Connie would pick her up, which she did, and drove her to the Butler house where she engaged in intercourse with another man. Another witness, Bonita Holetz, an employee of Horner's, testified to having heard Jean make an arrangement with Betty for a little girl to go to work. Connie Armstrong testified to a statement made either by or in the presence of Horner to Bonnie that she should go to work at Betty's in prostitution. Police officers visited the Butler house, forced a door open and found Bonnie and another girl there; forcing open another door they found a man and a woman on a bed in compromising attire. The officers had extensive conversations with Butler in which she admitted two previous arrests by one of the officers and asked him not to arrest the girls. Another officer testified she told him she was going to send Bonnie home, that it was no kind of a place for her. Horner testified that he knew that Bonnie had been in trouble, was on probation and was only 16 years old. He had introduced her to Harry Legge. Horner admitted on the stand there was a discussion with Legge and Bonnie as to Bonnie's working as a prostitute in the home of Betty Butler; there was a discussion about his calling Jean Lewis to contact Butler; shortly thereafter there was a conversation between himself, Jean, Legge and Bonnie concerning Bonnie's working for Butler; that Bonnie told him that she had earned $35 and asked him to arrange with Butler for her to work another night. Upon cross-examination Horner admitted that he had discussed with Jean Lewis something to the effect that the latter would ask Butler to provide work for Bonnie. He testified that he had never met Butler.

Officer Kalkiewicz of the Juvenile Division testified that he talked with Horner who admitted that Legge and Bonnie were present at his residence one...

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3 cases
  • People v. Cox
    • United States
    • California Court of Appeals Court of Appeals
    • 29 de fevereiro de 1968
    ...a general denial as to the commission of the crime, the date of the alleged offense was of no significance, citing People v. Horner (1955) 137 Cal.App.2d 615, 290 P.2d 902. In the Horner case, no alibi was involved, and therefore we believe that the language in that case relied on by the Pe......
  • Ghafari v. Municipal Court
    • United States
    • California Court of Appeals Court of Appeals
    • 14 de dezembro de 1978
    ...it was not in issue and was not considered. (In re Martin (1963) 221 Cal.App.2d 14, 34 Cal.Rptr. 299; see also People v. Horner (1955) 137 Cal.App.2d 615, 621, fn. 1, 290 P.2d 902 (mentioning enactment of the section).) The issues raised herein are of first impression. Section 650a is overb......
  • Frederick v. Curtright
    • United States
    • California Court of Appeals Court of Appeals
    • 8 de dezembro de 1955

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