People v. Huston, Cr. 5985

• Decision Date: 13 January 1958
• Docket Number: Cr. 5985
• Citation: 156 Cal.App.2d 670,320 P.2d 175
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lewis HUSTON, Defendant and Appellant.

Page 175

320 P.2d 175

156 Cal.App.2d 670

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lewis HUSTON, Defendant and Appellant.

Cr. 5985.

District Court of Appeal, Second District, Division 2, California.

Jan. 13, 1958.

Rehearing Denied Jan. 23, 1958.

Hearing Denied March 12, 1958.

Benjamin D. Brown, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Convicted of violation (1) of § 288, Penal Code, commission of lewd and lascivious acts upon a ten-year-old girl, and (2) of § 288a, Penal Code, cunnilingus (defined in 25 C.J.S., p. 28), defendant appeals from the judgment and the order denying his motion for a new trial. He was also charged with and admitted a prior conviction and imprisonment for violation of § 288. Appellant was adjudged a potential sexual psychopath and committed to Atascadero State Hospital for observation, with the result that the superintendent and medical director reported that he is a sexual psychopath who would not benefit by treatment in a state hospital and who is a menace to the health and safety of others. Probation was denied and defendant sentenced to prison for the term prescribed by law, the sentences to run concurrently.

Appellant attacks the summiciency of the evidence to support the conviction upon the ground that the testimony of the victim, the ten-year-old girl, is inherently improbable. This argument will not lie except where there exists 'either a physical impossibility that they [the witness' statements] are true, or their falsity [is] apparent without resorting to inferences or deductions.' People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758, 759. So far as physical impossibility is concerned, counsel would have us take judicial notice of matters that are best determined by the composite knowledge and experience of twelve jurors. That we cannot do. In other respects the argument invites us to weigh inferences in disregard of the rule of People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 780, which requires a court of review to "assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.' The testimony of the complaining witness in a case of this kind does not required corroboration. People v. Westek, 31 Cal.2d 469, 473, 190 P.2d 9; People v. Wilder, 151 Cal.App.2d 698, 312 P.2d 425. There appears to be no substantiality to the claim of insufficiency of the evidence.

It is argued that there was prejudicial error in the receipt of evidence of similar offenses committed upon another girl twelve years of age. This grows out of the fact that the amended information upon which defendant was tried charged three crimes relating to Bertha and a fourth count alleging violation of § 288, Penal Code, with respect to one Barbara. Defendant was acquitted of the last mentioned charge. The argument is: 'The defense could not object to the testimony when given because the witness was the prosecutrix of Count IV of the complaint. However, defendant was acquitted of Count IV. Thus the admission of the evidence became improper and prejudicial error.' If the evidence was not erroneously received it could not possibly become so through the jury's finding that it was not credible. Moreover, there was no objection to it when offered, and no subsequent motion to strike. What, if any, jury instruction was requested or given in that connection does not appear from the record. It is settled law that the fact of acquittal of another crime does not render proof of same inadmissible where it is otherwise competent. People v....