People v. McGhee, Cr. 2964

• Decision Date: 26 February 1954
• Docket Number: Cr. 2964
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. McGHEE.

Page 874

266 P.2d 874

123 Cal.App.2d 542

PEOPLE v. McGHEE.

Cr. 2964.

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

Feb. 26, 1954.

Hearing Denied March 25, 1954.

James Martin MacInnis, Nicholas Alaga, Harry P. Glassman, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., of State of Cal., David K. Lener, Deputy Atty. Gen., for respondent.

DOOLING, Justice.

The appellant was convicted of the crime of pimping. He appeals from the judgment and the order denying his motion for new trial. The only substantial evidence introduced against appellant came from the complaining witness. Appellant, a Negro, operated a hotel in San Francisco. The complaining witness, Claire Strange, a white woman, went to live in this hotel some time in December, 1962, with one Bailey, a Negro. They represented themselves as husband and wife. They left the hotel in January, 1953.

Miss Strange testified that while in the hotel she was called to the lobby on 15 or 20 occasions by a buzzer in her room and informed by appellant that there was a customer in one of the ground floor rooms. On each occasion she found in the room indicated a man with whom she engaged in an act of prostitution. She gave appellant in each instance the money that she received from the customer and in each instance he later gave back to her one-half of it. No part of this summarized testimony was corroborated.

Appellant denied that any transaction of the sort testified to by the complaining witness had occurred. He also testified that he had ejected Miss Strange and Bailey from his hotel in January, 1953, because he learned that they were using narcotics. A police officer, called by the prosecution, testified that he had interviewed appellant and that appellant in that conversation had flatly denied receiving any money from the complaining witness and also denied any knowledge of any act of prostitution engaged in by Miss Strange.

Miss Strange testified that another woman, also a prostitute, had been present at certain conversations between Miss Strange and appellant. Appellant produced this woman and she denied even knowing Miss Strange, denied that she was present at any such conversation and denied that she was a prostitute.

At the time of appellant's alleged offense Miss Strange was under 18 years of age and defendant was tried before the Juvenile Court Judge.

Appellant requested a cautionary instruction in the classic pattern, that a charge of this character is easily made and difficult to disprove even if the defendant is innocent, that from the nature of the case the complaining witness and defendant usually are the only witnesses, and therefore the jury should examine the testimony of the complaining witness with caution. The refusal of this instruction is assigned as error.

The rule requiring the giving of such a cautionary instruction in cases involving sex-offenses, based on Sir Matthew Hale's comment, finds its origin in this state in People v. Benson, 6 Cal. 221. After some earlier hesitation, People v. Anthony, 185 Cal. 152, 196 P. 47, our Supreme Court has now adopted the view that such an instruction should be given in cases involving sex-offenses. See People v. Adams, 14 Cal.2d 154, 163-164, 93 P.2d 146, and its discussion of People v. Anthony, supra. The rule, originally limited to forcible rape cases, has latterly been applied to all character of sex-offenses, lewd acts with a child of the same sex, People v. Lucas, 16 Cal.2d 178, 105 P.2d 102, 130 A.L.R. 1485; People v. Putnam, 20 Cal.2d 885, 129 P.2d 367; lewd acts with a child of the opposite sex, People v. Adams, supra, 14 Cal.2d 154, 93 P.2d 146; statutory rape and incest, People v. Rankins, 66 Cal.App.2d 956, 153 P.2d 399; assault with intent to commit rape, People v. Nye, 38 Cal.2d 34, 237 P.2d 1. The Supreme Court has refused to extend it to cases which are not concerned with sex-offenses. People v. McCracken, 39 Cal.2d 336, 349-350, 246 P.2d 913.

The attorney general points out that no case can be found in which the cautionary instruction was required to be given where the charge was pimping. Before the first case which held that it should be given in cases involving violations of Penal Code,...