People v. McMahon
| Decision Date | 24 March 1953 |
| Docket Number | Cr. 2384 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. McMAHON. |
George P. Kading, Chico, for appellant.
Edmund G. Brown, Atty. Gen., and Doris H. Maier, Deputy Atty. Gen., for respondent.
Defendant appeals from a judgment of conviction of the crime denounced by Section 288a of the Penal Code.
By an indictment found by the grand jury of Shasta County defendant was charged in Count 1 thereof with an assault with intent to commit the crime prohibited by that section; Count 2 charged a like offense--however this count was stricken prior to the trial, and counts 3 and 4 charged prior violations of the same section. Following the overruling of his demurrer and the denial of his motion to set aside the indictment the cause proceeded to trial, at the conclusion of which the jury found him guilty as to Count 1 and not guilty as to Counts 3 and 4. Thereafter a hearing was had by the court on its own motion under the provisions of the Welfare and Institutions Code, § 5500 et seq., relating to sexual psychopaths. The court determined that the defendant did not come within the provisions of that Code and he was sentenced to state prison for the term prescribed by law. However, the execution of the sentence was suspended and defendant granted probation for a term of ten years, the first six months of which to be spent in the Shasta county jail.
A detailed summary of the evidence appears unnecessary. Suffice it to say that the record shows that while a fifteen year old boy was hitchhiking from his school in Redding to his home near Central Valley he was accosted by defendant who offered to drive him home. During the course of the ride, which the defendant endeavored to prolong, he attempted to commit the acts denounced by said section 288a. The defendant continued in his attempt until threatened with physical violence by the boy whereupon defendant stopped the car and the boy got out. The boy immediately reported the incident to a deputy sheriff. In his report to the officer he identified with particularity the defendant and the car he was driving. Three days later he identified the defendant at the Redding police station. According to the under sheriff of Shasta county the defendant stated that on the evening of the alleged crime he was at a bar drinking, but when asked the name of the bar he was unable to recall the same, merely stating 'It's down that way', and when asked if he did not pick up a hitchhiker whom he took to Central Valley, the defendant replied, stating, 'The kid is lying, I have never seen that kid before * * *.' The defendant, testifying in his own behalf, denied that he ever knew or had even seen the boy prior to the date of the questioning at the police station. He further called witnesses in his own behalf to substantiate his alibi that he was with friends on the evening in question.
Five contentions are made by defendant. (1) That the trial court erred in permitting the joinder for the trial of three counts of the indictment; (2) that the trial court erred in denying his motion to dismiss counts 3 and 4; (3) that the district attorney was guilty of prejudicial misconduct (4) that the evidence was insufficient to support the verdict, and (5) that the court erred in giving an amended cautionary instruction.
His argument in support of his first contention is that the three counts in question do not contain a common element of substantial importance in their commission as required under the provisions of section 954 of the Penal Code. This, he says, is true since in Count 1 he was charged with an assault with the intent to commit the offense, while in Counts 3 and 4 he was charged with the commission of the offense prohibited by said section 288a. It seems unnecessary to labor this point since it is readily apparent that the offenses charged were of the same class and that the common element of substantial importance in each of the counts was the intent to violate said section 288a. It was not necessary that all of the charged offenses should have grown out of the same transaction or that they occurred on the same date or that they were perpetrated against the same person or that the evidence of one would prove the element of substantial importance in the others. In re Pearson, 30 Cal.2d 871, 186 P.2d 401.
Defendant's second contention is predicated upon the action of the trial court in denying his motion to dismiss Counts 3 and 4. His argument in support of this contention proceeds upon the theory that since both of the boys involved in these counts were over the age of fourteen years they were therefore accomplices, and since their testimony was not corroborated it was error for the court to deny his motion. Our examination of the record does not sustain such a contention. While each of the boys was an accomplice with respect to the particular act in which he participated the evidence does not disclose as a matter of law that he was an accomplice with respect to the acts perpetrated by defendant on the other. Both of the complaining witnesses were present at the time and place; each was the recipient of the same offer and proposition and each identified the defendant as the one who had picked them up in his car and made the propositions to them. The mere fact that each was an accomplice of the defendant with respect to the particular act engaged in by each did not in and of itself render him an accomplice as a matter of law as to the act charged against defendant with the other complaining witness. This was a question of fact to be determined by the jury and the court properly left that to the jury for its determination. People v. Griffin, 98 Cal.App.2d 1, 219 P.2d 519.
Defendant next contends that the district attorney was guilty of prejudicial misconduct (1) in calling attention to the failure of the accused to have his wife testify; (2) in calling attention to the Stroble case, and (3) in his language in referring to the defendant.
We find no merit to the first charge of misconduct. The reference by the district attorney to the defendant's failure to call his wife as a witness related solely to the alibi which defendant sought to establish concerning his whereabouts on the evening the offenses charged in Counts 3 and 4 were alleged to have occurred. After mentioning that she was the one person who could...
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