People v. Lyons

• Decision Date: 20 November 1956
• Docket Number: Cr. 5795
• Citation: 47 Cal.2d 311,303 P.2d 329
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Leonard LYONS, Defendant and Appellant.

Page 329

303 P.2d 329

47 Cal.2d 311

The PEOPLE of the State of California, Plaintiff and Respondent, v. Leonard LYONS, Defendant and Appellant.

Cr. 5795.

Supreme Court of California, In Bank.

Nov. 20, 1956,

Rehearing Denied Dec. 19, 1956.

Matthews & Hill and John J. Hamilton, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James and Marvin Gross, Deputy Attys. Gen., for respondent.

SCHAUER, Justice.

Defendant was charged by information with two violations of section 288 of the Penal Code and with a prior conviction of robbery in New York in 1931 under the name Leonard Leibowitz. He pleaded not guilty and admitted the prior conviction. A jury found him guilty of the charged offenses. Defendant appeals from the ensuing judgment of conviction and from an order denying his motion for a new trial.

After decision by the District Court of Appeal, Second Appellate District, Division One, which reversed the judgment and order, this court granted a hearing to give consideration to an argument advanced by the People and hereinafter discussed. We have concluded that the opinion prepared for the District Court of Appeal by Mr. Presiding Justice White correctly disposes of the cause. Therefore, we adopt the opinion with appropriate deletions and additions indicated as follows: ¹

( ) Defendant and the two complaining witnesses (Linda and Cheryl) lived in the same general neighborhood. Linda, 9 years old, testified that on one occasion toward the end of July, 1954, about 1 o'clock in the afternoon, she went to defendant's home to call on his daughter Gail. Opening the door, defendant told Linda that his daughter was in the kitchen; after Linda had entered, defendant locked the doors. Upon finding that Gail was not in the kitchen, Linda was invited by defendant into the den, where she sat down on the couch to watch television. At that time defendant 'started to tickle me,' 'from the top of me and went down.' Then 'he pushed me down and he made me lay down and he got on top of me,' 'and he took my shorts and panties down.' Linda then testified that defendant then 'opened a part of his pants and then he lay on top of me,' 'and stuck his thing into mine' 'and he moved up and down.' Linda testified that during this time she made no outcry nor did she say anything to defendant.

Afterwards defendant told Linda that she had better not tell anyone about this. Linda did not tell her parents about the incident for five or six weeks, because 'I was afraid he was going to do something to me.'

About a week after the incident defendant called Linda on the telephone several days in succession telling her, 'I have got some candy for you, come over.' Linda refused the invitation.

( ) (T)he father of Linda corroborated the fact that Linda had informed him of the incident on the Friday after Labor Day of that year.

Cheryl, 11 years old, testified to substantially the same personal experiences as did Linda; that she went to defendant's home to visit Gail; that defendant told her that Gail was in the kitchen; that after Cheryl entered, defendant locked all the doors; that Gail was not in the house and that defendant invited Cheryl to enter the den and sit on the couch; that he tickled her from the head down, then asked her to lie down and pull her panties down; and that defendant then fondled her private parts; also, that he opened his trousers and Cheryl 'saw his thing.' Then defendant lay on top of Cheryl 'and he put his thing between my legs,' he moved around,' and 'he laid on me for a long time and then he got off, and said, 'I will be right back"; and that she then unlocked a door and left. Due to her fear of defendant, Cheryl postponed telling her parents until the same day on which Linda told hers. This complaint was corroborated by Cheryl's mother. ( )

Dr. Light, a qualified pediatrician, testified that he examined Linda on October 4, 1954, and found that her hymen was ruptured; his notations from a previous examination of April 29, 1953, disclosed that there was no reptured hymen at that time.

In his own behalf defendant took the witness stand and denied putting his private parts next to those of either of the complaining witnesses; and he further denied that Cheryl ever came to his home during June, when his daughter was not at home. Lillian Lyons, the wife of defendant, testified that her husband was never home alone on any Saturday from June until September of 1954 because it was their habit to go shopping together every Saturday.

Esther Appleton testified that she is the principal of the school attended by Linda; that she had talked with other teachers and pupils at the school and had written reports from teachers concerning Linda. Based on the foregoing the witness testified that Linda's reputation for truth and veracity was bad. On cross-examination of Mrs. Appleton she was questioned as follows:

'Q. (By Deputy District Attorney) Let me ask it this way: In your discussions with Mrs. Kirkham, did she tell you that this little girl was a liar? A. Yes.

'Q. More than one occasion? A. Yes, sir.

'Q. All right. How about Mr. Prenn? A. The name is Prenn.

'Q. Mr. Prenn. Mr. or Mrs.? A. Mr. Prenn.

'Q. And did he tell you that this little girl tells stories? A. Yes, sir; because we never use the word lie.'

Six witnesses testified that defendant's general reputation for chastity was 'good,' 'very good,' and 'above reproach.' Other witnesses were present and ready to testify but the court restricted the number to six on the ground that there being no rebuttal testimony on the issue of reputation, further evidence 'becomes cumulative definitely.'

In view of subsequent discussion it might here be noted that during the cross-examination of the complaining witness Cheryl, the following transpired:

'Q. And every time he put it between your legs; is that right? A. Yes, sir.

'Q. Well, he put it inside of you too, didn't he? A. No.

'Q. Never? A. No. * * *

'Q. Cheryl, when you were in the other court (Preliminary Examination), didn't you say, 'He put his in mine'? 'His private parts in mine and he left it there for about three minutes'? A. But mother had an examination at the doctor's office and the doctor said it didn't happen.

'Q. The doctor said it didn't happen? A. Yes.

'Q. That is all.'

As his first ground for a reversal appellant urges that the district attorney was guilty of prejudicial misconduct in alluding to appellant's prior conviction during the cross-examination of the latter's wife. She had testified that she never left home on Saturdays (the day of the week on which both offenses allegedly occurred) without her husband because that was the day on which they did their shopping. Then the following ensued:

'Q. (By Deputy District Attorney) And there is some reason, then, for your not leaving Mr. Leibowitz at your home on Saturday by himself? A. My husband's name is not Mr. Leibowitz, sir.

'Q. Oh, it is not Leibowitz? A. Not now.

'Q. You knew him back in 1931, didn't you? A. Yes.

'Q. You knew of his conviction back in New York under that name? A. Yes, sir.

'Q. His real name now is Lyons? A. His real name is Lyons now.

'Q. Was it something else before that? A. Pardon?

'Q. Was it something else before that? A. Leibowitz.

'Q. Before that it was Leibowitz? A. Yes.

'Q. I thought you just told us his name is not Leibowitz. A. Now, I said.

'Q. Oh, I see. However, in 1931 it was? A. Yes, sir; it was.'

With commendable fairness, the attorney general does not contend that the foregoing cross-examination was proper but asserts there was no actual prejudice or resultant miscarriage of justice (Cal.Const., art. VI, § 4 1/2). Respondent urges that while, at the time of the foregoing interrogations, appellant had not yet taken the witness stand, he ultimately became a witness in his own behalf, at which time the prior conviction was properly alluded to for the purpose of impeachment (Code Civ.Proc., § 2051).

It would be an impeachment of the legal learning of counsel for the People to intimate that he did not know the aforesaid questions to be improper, wholly unjustifiable and peculiarly calculated to prejudice the appellant before the jury. One has but to read the foregoing questions to observe in them the subtle insinuations that appellant had used names other than Leibowitz or his present name of Lyons. The prosecuting attorney may well be assumed to be a man of fair standing before the jury, and the members thereof may well have thought that he could prove the innuendo contained in the improper questions.

In the instant case, the evidence is in sharp conflict. All the material facts testified to by the witnesses for the prosecution were denied and controverted. There was creditable evidence to support appellant's alibi. No complaint was made by either of the victims for several weeks after the occurrence of the acts charged. Courts look with disfavor upon a complaint made long after the event in question (People v. Musumeci (1955), 133 Cal.App.2d 354, 364 (284 P.2d 168)). The general reputation of one of the complainants for truth and veracity was characterized as bad by her teachers at school, while the other complainant was impeached by showing that she changed her testimony given at the preliminary examination because thereafter her 'mother had an examination at the doctor's and the doctor said it didn't happen.'

Several witnesses testified that appellant's general reputation in the community where he lived was good. When consideration is given to the evidence in this case in its entirety it seems manifest that if the jury attached the slightest weight to the insinuating questions of the prosecution, and the innuendo therein contained, it would be sufficient to turn the scales.

It is true, as urged by respondent, that no objection to the foregoing questions was made at the trial, and the court was not requested to admonish the jury to disregard them. And it is contended...