People v. Hurlburt, Cr. 3535

• Decision Date: 18 December 1958
• Docket Number: Cr. 3535
• Citation: 333 P.2d 82,75 A.L.R.2d 500,166 Cal.App.2d 334
• Court: California Court of Appeals Court of Appeals
• Parties: , 75 A.L.R.2d 500 The PEOPLE of the State of California, Plaintiff and Respondent, v. George E. HURLBURT, Defendant and Appellant.

Page 82

333 P.2d 82

166 Cal.App.2d 334, 75 A.L.R.2d 500

The PEOPLE of the State of California, Plaintiff and Respondent, v. George E. HURLBURT, Defendant and Appellant.

Cr. 3535.

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

Dec. 18, 1958.

Hearing Denied Feb. 11, 1959.

Stanley Brooks, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

In a prosecution for a violation of section 288 of the Penal Code the trial court ruled that defense counsel could neither cross-examine the complaining witness nor introduce evidence on the question as to whether the witness had, in the past, made similar charges against other men, which charges the witness had admitted were false or were proved to be false. In our opinion such rulings were erroneous, and under the facts, prejudicial.

As is usual in such cases, the prosecution was forced to rely primarily on the testimony of the complaining witness to establish its case, while the defense, by necessity, was forced to rely almost entirely on the denials of the defendant. Thus, the credibility of the complaining witness was one of the basic issues presented to the jury.

The alleged victim, Maria, on November 23, 1957, the date of the charged offense, was nine years old. On that Saturday evening Maria's mother left Maria and several younger children with the defendant at his apartment for him to care for while the mother went out for the night. When the mother brought Maria and the other children to defendant's apartment, the defendant was in the kitchen of his residence having drinks with his newly married daughter, her husband, and a neighbor. Defendant frankly admitted that he had had several drinks that evening, but there is no evidence that he was intoxicated. Shortly after Maria's mother left, the daughter and her husband left on a date, intending to return home later that evening, and the neighbor returned to her home. Almost immediately thereafter three of the youngest children were put to bed in an upstairs bedroom by Maria and defendant. Maria then undressed, put on her nightgown, and went to bed. Defendant returned downstairs and prepared to retire on the sofa. Maria had difficulty getting to sleep and came downstairs to get something to eat and to watch television. In a short time the electricity went off. It is an admitted fact that there was an electrical failure in the area that night which lasted for some time.

When the lights went out Maria returned upstairs and went to sleep. Shortly after the lights went out a neighbor called at the defendant's apartment and borrowed a candle from defendant, remaining some time to talk to defendant. The defendant was downstairs when the witness arrived and gave her the candle.

Maria testified that while the lights were still out she was awakened by the defendant who was pulling up her nightgown, and that then the defendant committed the indecent acts upon her body which constitute the basis of the 288 charge. Maria also testified that while the defendant was committing these acts she told him that she had to go to the lavatory, that he desisted, and that when she returned from the bathroom he made no attempt to resume the acts, but returned downstairs in search of cigarettes.

The time intervals are not too clear from the testimony, but apparently before the acts are supposed to have occurred the adult daughter of defendant had telephoned stating that she and her husband would be right home. Apparently the lights went out about 10:40 and the defendant's daughter and her husband arrived home about 10:45 p.m. Maria admitted that when the daughter came home, Maria got up and kissed her and talked to her, and, although she was frightened by what had happened, she said nothing about it.

It also appears that Maria's mother came to defendant's apartment Sunday, and that she and Maria spent that day with defendant and spent Sunday night at his residence. Admittedly Maria, on Sunday, said nothing to her mother about what she claims had happened on Saturday evening. Complaint was first made on Monday morning when Maria and her mother returned to their home.

The defendant flatly denied the testimony of Maria and attempted to account for all of his time and actions on the night in question.

During the cross-examination of Maria counsel asked the witness whether she had not made prior false accusations of a similar nature against other men. The precise questions asked, the objections and the court rulings were as follows:

'Q. Maria, have you ever lied to your mother concerning a thing of this nature? A. No.

'Mr. Rudden [Prosecutor]: Incompetent, irrelevant and immaterial.

'The Court: Just a minute.

'Mr. Rudden: And it is objected to for that reason.

'The Court: Yes, it is objectionable. The objection will be sustained and the answer will be stricken and the jury instructed to disregard the answer. * * *

'Q. Now, Maria, do you recall telling Betty and your mother some time ago concerning the identical same facts as these facts you have testified to?

'Mr. Rudden: Objected to as improper cross-examination, compound, complex and calling for the opinion and conclusion of the witness.

'The Court: Yes, I think I'll have to sustain the objection, counsel.

'Mr. Perasso [Defendant's counsel]: On what basis, your Honor?

'The Court: On all of the grounds. * * * The Court will sustain the objection on all the grounds offered. If you want to cross-examine the witness or impeach her you are certainly entitled to do that, but I do not think that the question is proper at all.

'Mr. Perasso: I will rephrase it.

'The Court: Or, if you want to establish a motive there is a way to do that too.

'Mr. Perasso: Q. Did you once before, Maria, accuse someone else of the very same thing?

'Mr. Rudden: Incompetent, irrelevant and immaterial.

'The Court: The objection will be sustained.

'Mr. Perasso: I won't pursue that at this moment.'

Later in the trial, upon further cross-examination of this witness, the defendant's counsel attempted to establish the fact that the complaining witness had prior knowledge of the nature of the charge to which she had testified. Objections were properly sustained to these questions, whereupon counsel made an offer of proof. The principal offer was to show that the complaining witness had prior knowledge of the nature of the offense in question, but counsel also offered to show that the witness had made similar charges in the past which had proved to be false. Thus, counsel offered to show that in the immediate past she had made an identical charge against Bud Calleen, whom her mother had 'been running around with or going with,' and 'she made the identical statement at a prior time against another person after which she said it was a lie.' The trial court sustained the prosecuting attorney's objection, stating 'I think you are entitled to proceed to attack the girl's reputation in other ways, but not by a particular act or anything of that sort.'

The sole point urged on this appeal is that it was error to exclude evidence of the fact that the complaining witness had made prior false accusations that other men had committed acts against her similar to those charged against the defendant. Respondent supports the ruling by contending that specific acts of wrongdoing may not be used to impeach a witness. This is undoubtedly the general rule, and is codified in this state. Section 2051 of the Code of Civil Procedure provides: 'A witness may be impeached by the party against whom he was called, * * * by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony unless he has previously received a full and unconditional pardon, based upon a certificate of rehabilitation.' The rule declared by this section is a sound one, but it is not absolute. In sex cases of various sorts, exceptions to its application have been recognized. As early as 1856 the California Supreme Court referred with approval to the language first used by Lord Hale many years before to the effect that no charge is more easily made and more difficult to disprove than a sex charge, particularly if made by a young child. The court said that 'In such cases the accused is almost defenceless.' People v. Benson, 6 Cal. 221, 223.

Of course, it has been the rule in this state for many years that it is reversible error to fail to instruct that because such charges are easy to make and hard to disprove the testimony of the prosecutrix must be carefully scrutinized. People v. Putnam, 20 Cal.2d 885, 129 P.2d 367; People v. Garrett, 27 Cal.App.2d 249, 81 P.2d 241. In fact, even qualifying the normal instruction by stating that, nevertheless if the jury believes that the defendant is guilty beyond a reasonable doubt a guilty verdict should be returned, is reversible error. People v. Lyons, 47 Cal.2d 311, 303 P.2d 329.

Several times the California courts have insisted that the defense be allowed the widest latitude in the cross-examination of the prosecutrix in such cases. People v. Baldwin, 117 Cal. 244, 49 P. 186; People v. Goldberg, 110 Cal.App.2d 17, 242 P.2d 116; People v. Vaughan, 131 Cal.App. 265, 21 P.2d 438.

These cases are cited not because they are direct authority on the issue here presented but because they indicate that the California courts have not been blind to the possibility that a prosecutrix may be untruthful in such cases, and that a defendant is practically powerless to defend against such a charge. Dean Wigmore felt so strongly about the problem that he recommended that the rule be, by statute if necessary, that the complaining witness, in all such cases, should be subjected to a...