People v. Lamb

• Decision Date: 14 December 1953
• Docket Number: Cr. 2903
• Citation: 264 P.2d 126,121 Cal.App.2d 838
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. LAMB.

Page 126

264 P.2d 126

121 Cal.App.2d 838

PEOPLE v. LAMB.

Cr. 2903.

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

Dec. 14, 1953.

Edmund G. Brown, Atty. Gen., Clarence A. Lin, Asst. Atty. Gen., Clayton R. Janssen, Jr., Deputy Gen., for respondent.

Ivan C. Sperbeck, Oakland, for appellant.

PETERS, Presiding Justice.

Defendant was charged with two counts of lewd and lascivious conduct alleged to have been committed upon children eight and six years old, respectively, in violation of section 288 of the Penal Code. The jury brought in verdicts of guilty on both counts. Defendant appeals from the judgment of conviction and from the order denying his motion for a new trial.

The information charged and the evidence produced by the prosecution showed that the offenses involved occurred on the afternoon of May 23, 1952, in the home of appellant in Oakland. The evidence produced by the prosecution also showed that in addition to the two offenses charged in the information alleged to have been committed against Alberta, then aged eight years and nine months, and Loretta, then aged six years and four months, the appellant, at the same time and place; committed similar lewd and lascivious acts upon Kathleen, sister of Loretta, then aged four years and ten months, and upon Patricia, sister of Alberta, and then aged five years and four months. All four girls were produced as prosecution witnesses. Patricia on voir dire was unable to qualify as a witness and was withdrawn. The other three girls qualified and were permitted to testify. The major contentions of appellant on this appeal are that the evidence is insufficient to sustain the judgments, and that the trial court committed prejudicial error in permitting these three young children to testify. It is also urged that the prosecuting attorney committed prejudicial misconduct in calling Patricia as a witness, and in making certain statements in his arguments to the jury.

There can be no doubt, if the three children who testified properly qualified, that their evidence supports the judgment. The three child witnesses all told substantially the same story, differing in some details, but substantially similar, as to the commission and the manner of the commission of the sexual acts constituting the operative elements of the crimes charged. There is no need to set forth these sordid facts in this opinion. Suffice it to say that these three girls, who live in the same general area as does appellant, testified that after school on May 23, 1952, they, together with Patricia, were playing on the railroad tracks adjoining appellant's property; that they went into his yard and ultimately into his house to play; that he invited the children to go upstairs to the bedroom; that there in the presence of all the children, and upon each child successively, he committed the first series of acts constituting violations of section 288 of the Penal Code; that a short time later, in the same bedroom, again in the presence of all the children, and again upon each child successively, he committed a second series of acts, different from the first, but also constituting violations of section 288 of the Penal Code. Alberta and Loretta also testified that, after these events, they took a bath in appellant's house and in his presence, and that appellant then told them an obscene story. The mother of Kathleen and Loretta testified that her daughters complained to her of appellant's conduct upon their arrival home on the very day the acts are alleged to have been committed. The mother of Alberta and Patricia did not testify to any complaint made by her daughters, but did testify, somewhat ambiguously, that on August 27, 1952, three months after the offenses are alleged to have occurred, and one month after the information was filed, which in one count charged an offense against her daughter Alberta, her two girls came to her and stated that they had been over to appellant's home.

Complaint was immediately made to the police, and officer Curran of the Oakland Police Department interviewed appellant in the city jail. Curran testified that on May 24, 1952, appellant denied that the four children, or any of them, had, on May 23, 1952, been in his home. But on May 26, 1952, in a second interview, appellant admitted that the four children had been in his home on May 23, 1952, and that some of them had taken a bath there.

Appellant, as a witness on his own behalf, testified that he had been a railroad employee for 27 years, and had lived at the address where these acts are alleged to have taken place for some 18 years. He admitted that the four children had been in his home in May 23, 1952, but he denied committing any of the criminal acts testified to by the children and, in fact, testified that at no time while the children were in the house did he even go upstairs with them or know that they had gone upstairs. He denied that he had told officer Curran that the children had gone upstairs and had taken a bath. It was his testimony that on May 22, 1952, Alberta and some other children not here involved, had played in his yard and had come into the house to get some water, and, while there, that he had permitted them to play on his typewriter; that on May 23, 1952, Alberta, in the company of Loretta, Kathleen and Patricia, without permission, walked into his house, and asked permission to play in his yard, which he granted; that they played in the yard and basement for a while and again entered the house; that Loretta and Alberta got into an argument and started to slap each other; that Loretta told him that Alberta had taken some gum and candy from a cabinet and some money from appellant's wallet; that appellant ordered them to stop fighting and to get out and not to come back. Alberta admitted taking some money from the wallet but testified that this occurred after the events in the bedroom had been committed, and that appellant saw her take it and made no protest. The girls also testified that, in addition to the money taken by Alberta from the wallet, appellant, after committing the acts in the bedroom, gave each of them ten cents.

Appellant testified that the children then left, and that he then discovered the $5.50 was missing from his wallet. Alberta's testimony was that it was $1.25. At any rate the children left and bought some coca cola, candy, potato chips and ice cream with the money they had taken or received. Appellant then testified that the children returned to his home with their purchases and again entered his kitchen; that he charged Alberta with taking the money, but she replied that she had secured it from her own bank; that Alberta then asked permission, which he granted, to put the ice cream into his refrigerator; that the children went out on the back lawn to eat the candy, etc.; that Alberta returned to the house and got the ice cream; that the children then left.

The evidence is obviously sufficient, if admissible, to sustain the judgment Appellant stresses the difficulties of an accused in meeting such charges, and, after comparing the testimony of the three child witnesses, emphasizes some of the inconsistencies in their stories. He urges the possibility that the children had been coached in their testimony, and concludes that their stories are so fantastic as to be incredible and not entitled to belief. It is undoubtedly true that appellate courts will critically examine the record in cases involving charges of sex crimes against children, and will consider the fact that the prosecution's case depends upon the testimony of a child or children of tender years in determining the prejudicial nature of other errors. People v. Byrd, 88 Cal.App.2d 188, 198 P.2d 561; People v. Adams, 14 Cal.2d 154, 93 P.2d 146. But such cases usually depend upon the uncorroborated testimony of one child as to the commission of the acts. Here three children testified as to the acts that were committed. Although there are some variations and inconsistencies in their testimony, all three of the children testified as to the acts that were committed and how they were committed and all three stories are consistent and in some detail. Most of the arguments now made by appellant is the sufficiency of the evidence should have been and were urged in the argument to the jury. The appellate court cannot reweigh the evidence. The stories here, although involving unusual and perverted conduct, are not so fantastic as to be inherently improbable. Under such circumstances, the determination of the jury as to the credibility of the witnesses is conclusive on an appellate court. People v. McBride, 69 Cal.App.2d 331, 159 P.2d 59; People v. Mangus, 5 Cal.App.2d 353, 42 P.2d 681; People v. Hicks, 76 Cal.App.2d 142, 172 P.2d 565.

The next major contention of appellant is that the trial court abused its discretion in allowing the three child witnesses to testify, it being claimed that these witnesses failed to qualify under section 1880 of the Code of Civil Procedure. That section provides:

'The following persons cannot be witnesses: * * *

'2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. * * *'

This section lays down two qualifications that a child under ten must possess before such child can testify--(1) such child must be capable of receiving 'just impressions' at the time the facts testified to occurred, and (2) such child must be capable of 'relating them truly' at the time of trial. People v. Watrous, 7 Cal.App.2d 7, 45 P.2d 380. That case also held that there was a third related but independent requirement and that is that, 7 Cal.App.2d at page 10, 45 P.2d at page 381, 'there must be some understanding, before the oath is administered, of the nature and obligation thereof.' (See, generally, 18 Cal.L.Rev. 85.)

The trial judge, because of his ability to see how...