People v. Malloy

• Decision Date: 18 January 1962
• Docket Number: Cr. 3959
• Citation: 199 Cal.App.2d 219,18 Cal.Rptr. 545
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Piaintiff and Respondent, v. James Walter MALLOY, Defendant and Appellant.

Page 545

18 Cal.Rptr. 545

199 Cal.App.2d 219

The PEOPLE of the State of California, Piaintiff and Respondent, v. James Walter MALLOY, Defendant and Appellant.

Cr. 3959.

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

Jan. 18, 1962.

Hearing Denied March 14, 1962.

Charles O. Morgan, Jr., George R. Moscone, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, John L. Burton, Deputy Attys. Gen., for respondent.

SULLIVAN, Justice.

Defendant was charged in an information with three separate counts of violating section 288 of the Penal Code (lewd and lascivious acts) and with three separate counts of violating section 702 of the Welfare and Institutions Code (contributing to delinquency of a minor). Each of the six counts charged his criminal acts with a different boy. A jury found defendant guilty as charged on all six counts. He has appealed from the judgment of conviction and from the order denying his motion for a new trial.

Defendant contends here that (1) prejudicial error was committed in the cross-examination of his character witnesses; (2) evidence of defendant's prior similar misconduct with one other than the prosecuting witnesses was erroneously admitted; (3) the denial of defendant's request to exclude certain persons from the preliminary hearing was prejudicial error; and (1) restriction of defendant's cross-examination of a prosecuting witness at the preliminary hearing constituted prejudicial error. In addition, we raised the question whether under the evidence, the Superior Court of the City and County of San Francisco had jurisdiction of some of the offenses charged. We have concluded that none of the defendant's contentions have merit, that the superior court did have jurisdiction, and that the judgment and the order denying motion for new trial should be affirmed.

Since the defendant does not question the sufficiency of the evidence to support the judgment, our recital of the facts will not detail the sordid and degrading acts of the defendant beyond the limit necessary for a proper consideration of the issues before us.

The record, considered in the light of the familiar principles governing the scope of our review, reveals evidence of the following facts pertaining to two separate incidents or series of incidents, the first occurring in September 1958 (charged in count one) and the second in January 1960 (charged in counts two to six, inclusive).

The defendant was a municipal playground director. In September 1958, while so employed at one of the playgrounds, upon the pretense that there was a ball on the roof of the playground clubhouse, the defendant requested the prosecuting witness, a boy 12 years old, to get it for him. The boy who had known the defendant for about four years, proceeded, along with the defendant, to an upstairs room adjacent to the roof. He started to go out on the roof when the defendant grabbed him, took down the boy's pants and underpants, as well as his own, and started rubbing the boy's private parts with one hand and his own with the other. The defendant had an emission. The boy testified that the defendant had touched him in the area of his private parts on approximately ten other occasions.

On January 16, 1960, the defendant while still employed as a playground director at the same playground, took five other boys for a week-end to his cabin at the Russian River. The boys were 12 and 13 years of age. They had all known the defendant for some time as a result of visiting the playground. The defendant and the five boys met at the playground on the weekend in question and from there he drove them in his car, to his cabin near Guerneville. No other persons accompanied them.

Upon their arrival the defendant purchased liquor at a nearby town and thereafter gave four of the boys whiskey and beer which they drank at the cabin. Defendant and the boys played 'strip poker' under rules which required losers to remove their pants and underpants and, at defendant's suggestion, to perform certain lewd acts, not necessary to be here described, in order to get back into the game. Another game was played which required the loser to have ice cubes placed on his private parts by the other boys, while the loser lay supine on a table. There was testimony that such games had been engaged in before at the cabin in the defendant's presence and that the defendant had provided whiskey and beer.

The party stayed at the cabin overnight. The defendant occupied the same bed with two of the boys and during the night placed his hands on their private parts. ¹ The next morning during a game involving wrestling and capture, the defendant pulled down the underpants of a third boy and started to rub his privates. ²

The jurisdiction of the Superior Court of the City and County of San Francisco.

After the oral argument before us, counsel for both parties, upon our request, submitted supplementary memoranda directed to the question whether under the evidence, the Superior Court of the City and County of San Francisco had territorial jurisdiction of the offenses charged in counts two to six inclusive of the information.

Count two charged that 'defendant did in the City and County of San Francisco, State of California, on or about the 17th day of January, 1960' commit a lewd and lascivious act upon a certain male child in violation of section 288 of the Penal Code. Under the evidence and by reference to the boy named in count two, the act which is the subject of this charge was committed during the above mentioned wrestling and capture incident at defendant's cabin in Sonoma County on the Sunday morning following the group's arrival there. Count three charges a separate violation of section 288 in connection with another boy as having been committed in the City and County of San Francisco on January 16, 1960. It is similarly ascertainable that the act which is the subject of count three was committed at the cabin on the night of arrival while the defendant occupied the same bed with the boy mentioned. Counts four to six charge separate violations of section 702 of the Welfare and Institutions Code (contributing to the delinquency of a minor) each count naming a different one of the remaining three boys and charging in effect that the defendant 'in the City and County of San Francisco, State of California, on or about the 16th day of January 1960' did commit certain acts in violation of said statute. ³ Under the evidence and by reference to the boy respectively named in the count, the acts charged were the drinking and games occurring at the cabin in Sonoma County on the night of arrival and, for count six only, the defendant's placing his hands on the private parts of the boy mentioned while occupying the same bed at the cabin.

Section 777 of the Penal Code provides, in relevant part, that '* * * except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed.'

Section 781 of said code also provides: 'When a public offense is committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory.'

Under the latter section the county in which preliminary arrangements for the commission of a crime are made, is a proper county in which to prosecute the completed offense, although the acts performed there did not constitute an essential element of the crime. (People v. Abbott, 47 Cal.2d 362, 370, 303 P.2d 730; People v. Anderson, 90 Cal.App.2d 326, 330, 202 P.2d 1044; People v. Anderson, 3 Cal.App.2d 521, 523, 40 P.2d 270; People v. Ortez, 120 Cal.App.2d 469, 472, 261 P.2d 325; People v. Duffy 110 Cal.App. 631, 636-637, 294 P. 496.) Upon the foregoing authorities the Superior Court of the City and County of San Francisco, where the defendant gathered together the group of boys, and from which he took them to his cabin, had jurisdiction of the offenses charged under both section 288 of the Penal Code and section 702 of the Welfare and Institutions Code. The foregoing evidence is sufficient to support the implied finding of the jury that the defendant had organized the week-end at his cabin for the purpose of engaging in his sordid and depraved conduct with the boys. This inference is justified by the fact that such conduct was commenced almost immediately upon his arrival and was pursued with substantial continuity thereafter. It is fortified by the fact that he had done the same thing on previous trips to the cabin. It was not unreasonable for the jury to infer that the defendant's intent and object were the same on this occasion as on previous ones and that his collecting the boys in San Francisco and driving them to the cabin were preliminary arrangements for his sordid scheme.

Cross-examination of defendant's character witnesses.

Appellant complains of three kinds of questions asked by the prosecutor, over defendant's objection, during the cross-examination of appellant's character witnesses: (1) Whether the witness had heard it reported: that the defendant had touched the private parts of at least one boy at the playground; that the defendant had taken children on more than one occasion to his cabin and there given them whiskey and beer, played strip poker, placed ice cubes on their private parts, and engaged in an identified indecent act involving such parts of the body; that defendant had masturbated boys while in bed in the cabin; that defendant was accused of indecent familiarities with boys at another playground; (2) Whether the witness' opinion of the defendant's reputation for morality would change if the witness had heard any of the above reports about the defendant; (3) Whether the witness, a...