People v. Kennedy, Cr. 3109

Decision Date20 June 1955
Docket NumberCr. 3109
Citation284 P.2d 898,133 Cal.App.2d 693
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Thomas G. KENNEDY, Defendant and Appellant.

Kenneth C. Zwerin, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., William M. Bennett, Deputy Atty. Gen., for respondents.

NOURSE, Presiding Justice.

Defendant was tried to a jury on an information charging a violation of Section 288a of the Penal Code. The jury, following an instruction that it was a lesser and included offense found the defendant guilty of a violation of Section 702 of the Welfare and Institutions Code (contributing to the delinquency of a minor). The evidence overwhelmingly supported the verdict. That relating to the crime charged was of doubtful sufficiency. The trial court instructed in jury that Section 702 stated a minor offense to that denounced in Section 288a of the Penal Code and that the jury could find defendant guilty of that offense. The verdict of guilty of the minor offense followed. This instruction causes the whole attack on the judgment.

The error begins with the information. It charges a violation of Section 288a alone. Under this charge evidence of a violation of Section 702 was not admissible and was not proof of the crime charged. If a violation of Section 702 was to be tried it should have been charged in the information.

Hence, the instruction that the jury could find defendant guilty of the minor offense of contributing was error because a violation of Section 702 was only possible if the other party was a minor. This is so because of the provisions of Section 1159 of the Penal Code which reads 'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.' It cannot be said that the 'lesser' offense was 'necessarily' included in the crime charged because here the lesser offense of contributing was applicable only in the event that the victim was a minor of less than twenty-one years of age, an element not required for the crime charged.

Having acquitted the defendant on the only charge made in the information (violation of Section 288a, Penal Code), the jury was without power to convict him of a violation of Section 702 of the Welfare Code.

Support for these views is found in People v. Greer, 30 Cal.2d...

To continue reading

Request your trial
8 cases
  • People v. Morris
    • United States
    • California Court of Appeals Court of Appeals
    • 29 October 1965
    ...is not an included offense. In such case the superior court would be without jurisdiction to try the misdemeanor. (People v. Kennedy, 133 Cal.App.2d 693, 284 P.2d 898.) The fact that one offense is a misdemeanor and the other a felony has been mentioned as a basis for two separate prosecuti......
  • People v. Winchell
    • United States
    • California Court of Appeals Court of Appeals
    • 16 February 1967
    ...61; Justice Whelan, dissenting in People v. Morris (1965) 237 Cal.App.2d 773, 777, at p. 786, 47 Cal.Rptr. 253; People v. Kennedy (1955) 133 Cal.App.2d 693, 694, 284 P.2d 898; and comment, 10 U.C.L.A.L.Rev. 870, 871, fn. 6 and 906, fn. 215.) The American Law Institute, Proposed Official Dra......
  • People v. Troyn
    • United States
    • California Court of Appeals Court of Appeals
    • 14 August 1964
    ...to the delinquency of a minor. His argument receives some prima facie semblance of merit from the opinion in People v. Kennedy, 133 Cal.App.2d 693, 284 P.2d 898. There the defendant was charged with violation of section 288a of the Penal Code without reference to the age of the victim, but ......
  • People v. Mayes
    • United States
    • California Court of Appeals Court of Appeals
    • 15 May 1968
    ...trial to show that he had committed that offense' (In re Hess, 45 Cal.2d 171, 174--175, 288 P.2d 5, 7). (See also People v. Kennedy, 133 Cal.App.2d 693, 694, 284 P.2d 898.) I would reverse the 1 Penal Code section 195 provides:'Homicide is excusable in the following cases:'* * *de'2. When c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT