People v. Moore

• Decision Date: 03 October 1961
• Docket Number: Cr. 1484
• Citation: 196 Cal.App.2d 91,16 Cal.Rptr. 294
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert L. MOORE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 294

16 Cal.Rptr. 294

196 Cal.App.2d 91

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert L. MOORE, Defendant and Appellant.

Cr. 1484.

District Court of Appeal, Fourth District, California.

Oct. 3, 1961.

Hearing Denied Nov. 29, 1961.

Thomas Whelan, San Diego, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and George W. Kell, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice.

The defendant, appellant herein, was charged with, tried by a jury for and convicted of the offense of abduction of a woman for defilement, i. e., a violation of Section 265 of the Penal Code; was sentenced to imprisonment in the State prison; and appeals from the judgment entered accordingly.

The contentions on appeal are: (1) that the evidence is insufficient to sustain the verdict; (2) the court erred in failing to give certain instructions on its own motion; and (3) the district attorney was guilty of prejudicial misconduct.

The defendant was a police officer. On the night of September 27, 1960, while off duty, he went to the Bar-B-Q Queen Cafe and Bar, where an unmarried colored woman named Loydell Wilks, age 20, was working as a waitress. The defendant ordered a beer; inquired of the proporietor: 'Could you get me a colored girl'; was given a negative answer; retorted with the further inquiry: 'What about your waitress'; and again was given a negative answer. At this time Miss Wilks passed by and defendant attempted to get her to go with him, but she refused. Thereupon he asked her for her 'health card'; she opened her purse and the defendant noticed a welfare identification card therein. After looking at the welfare card, the defendant told the proprietor and Miss Wilks that they were in 'hot water'; that it was illegal for Miss Wilks to work because she was 'on welfare'; and that he would have to run them down to jail. He showed Miss Wilks his badge and told her to go with him, which she did, believing she was going to jail and that she should not resist arrest. They got into the defendant's automobile. Upon inquiry, the defendant found that Miss Wilks was unmarried; that she had three children, one of which was a baby, for whom she was receiving aid; and that the children were being cared for by her sister. Then, as related by Miss Wilks in her testimony, the defendant said: 'He had to see my baby because it was so young, he wanted to show why I was away from it at that time in the morning.' Following this, they drove to the sister's home; Miss Wilks got her baby; returned to the car; and was told by the defendant that he wanted to go to her home to see if she had someone staying with her. After entering her home, the defendant looked about the house; inquired of Miss Wilks how many men she had had in the last six months; asked her if she wanted to go to jail; said: 'You know I have arrested you'; ordered her to take off her clothes; and when she complied, placed her on the bed and had intercourse with her. Miss Wilks testified that she left the cafe with the defendant and submitted to him in her home because she was afraid. The defendant had told her that she was in 'hot water'; was 'in up to her neck'; was arrested; and her children would be taken from her. When the defendant finished he said to Miss Wilks: 'You don't have to say anything about this. I don't even know your name,' and then left. Shortly thereafter the proprietor of the cafe came to the home; Miss Wilks told him what happened; he telephoned the police; and the next day she was interviewed by them.

In the course of an investigation that ensued, the defendant stated that he was so drunk on the night in question that he did not remember what occurred. He was able to account for his actions only up to shortly after 10 o'clock which was before he had gone to the Bar-B-Q Queen Cafe, or the Wilks home. However, the next day he told the officers that he did remember a little more about what happened; that he went to the Bar-B-Q Queen Cafe; that he and the woman left at her suggestion; that he went to her house and engaged in an act of sexual intercourse with her; and that he then left and went home.

The defendant testified that he had been to a number of bars on the night in question; that he had been drinking; that he went to the Bar-B-Q Queen Cafe where he had a beer and jokingly asked the proprietor: '[H]ow about fixing me up with that girl'; that he asked Miss Wilks if she had a health card and had been cleared by the vice squad but did not talk to her about the welfare card; that she asked to be taken home; that they picked up the baby, and then went to her home; that he was invited in; sat on the couch; was given a drink of beer; and went to sleep or passed out; that when he woke up he was fully clothed, as was Miss Wilks; that he then went home; and that he did not 'honestly' know whether he had sexual intercourse with her.

Sufficiency of the Evidence.

In considering the sufficiency of the evidence to support a verdict, the Appellate Court determines only whether there is any substantial evidence in the record, either direct or indirect, contradicted or uncontradicted, which justifies the conclusion reached. People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Kessler, 62 Cal.App.2d 817, 821, 145 P.2d 656. The facts heretofore noted fully support the verdict in this case. The defendant directs our attention to some of the conflicts in the evidence, particularly that raised by the testimony of the proprietor of the Bar-B-Q Queen Cafe to the effect that Miss Wilks told him the defendant had intercourse with her in the automobile, whereas she testified that the act of intercourse took place in her bedroom. This state of the record is used as the basis for an attack upon the credibility of the testimony given by Miss Wilks. Questions involving credibility of witnesses, the weight to be given their testimony, and the effect of conflicts therein or with other testimony are subjects for determination by the trier of fact and not by the Appellate Court. People v. Ashley, 42 Cal.2d 246, 266, 267 P.2d 271; People v. Newland, supra, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Mickalian, 114 Cal.App.2d 11, 13, 249 P.2d 358. The contention that the verdict is not supported by the evidence is without merit. Failure to Give Instructions.

It is contended that the trial court erred in failing to give certain instructions on its own motion. The trial attorney for the defendant, who is not his attorney on appeal, offered or requested no instructions on the defendant's behalf. The general applicable rule is stated in People v. Warren, 16 Cal.2d 103, 116-117, 104 P.2d 1024, 1031 where the court said:

"It is the duty of a court in criminal cases to give, of its own motion, instructions on the general principles of law pertinent to such cases, where they are not proposed or presented in writing by the parties themselves." See also People v. Yrigoyen, 45 Cal.2d 46, 49, 286 P.2d 1; People v. Buffum, 40 Cal.2d 709, 724, 256 P.2d 317.

Particular complaint is made of the fact that the court did not give an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances relied upon not only must be entirely consistent with the theory of guilt, but must be inconsistent with any other rational conclusion. In support of his position the defendant cites the case of People v. Bender, 27 Cal.2d 164, 174-175, 163 P.2d 8, 15, where the evidence of guilt was 'entirely' circumstantial; where it was contended that 'the trial court of its own motion should have given an instruction embodying the principle (as stated in 8 Cal.Jur. 371, § 405) 'that, to justify a conviction, the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion''; where the Supreme Court declared that such an instruction should be given in 'every criminal case wherein circumstantial evidence is received', and 'in a criminal case where circumstantial evidence is substantially relied upon for proof of guilt' (Emphasis added); but found that the failure to give such an instruction in the case under review did not constitute prejudicial error. Also cited is People v. Yrigoyen, supra, 45 Cal.2d 46, 49, 50, 286 P.2d 1, 3, reversing a judgment of conviction because the instruction in question had not been given, where the only evidence on the issue of criminal knowledge was circumstantial, but the court observed: 'Cases holding that the instruction need not be given, even upon request, where circumstantial evidence is only incidental or corrorative are not, of course, applicable here.'

Although varied language has been used to express the applicable principle of law, it generally is accepted that if proof of a significant element of the charge depends upon circumstantial evidence the instruction in question should be given. People v. Yrigoyen, supra, 45 Cal.2d 46, 49, 286 P.2d 1; People v. Zerillo, 36 Cal.2d 222, 233, 223 P.2d 223; People v. Bender, supra, 27 Cal.2d 164, 174, 163 P.2d 8; People v. Candiotto, 128 Cal.App.2d 347, 357, 275 P.2d 500--overruled in other particulars by People v. Gould, 54 Cal.2d 621, 630, 7 Cal.Rptr. 273, 354 P.2d 865; People v. Tholke, 75 Cal.App.2d 857, 861, 171 P.2d 904; People v. Rayol, 65 Cal.App.2d 462, 464, 466, 150 P.2d 812; People v. Hatchett, 63 Cal.App.2d 144, 152, 146 P.2d 469; People v. Holden, 13 Cal.App. 354, 359, 109 P. 495. However, the rule is subject to the limitation that if the circumstantial evidence in the case is merely 'incidental' or 'corroborative', the instruction need not be given. People v. Jerman, 29 Cal.2d 189, 197, 173 P.2d 805; People v. Lapara, 181 Cal. 66, 70, 183 P. 545; People v. Bernal, 174 Cal.App.2d 777, 783, 345 P.2d 140; People v. Barkoff, 163 Cal.App.2d 639, 644, 329 P.2d 1005; ...