People v. Morgan, Cr. 5709

• Decision Date: 12 December 1956
• Docket Number: Cr. 5709
• Citation: 304 P.2d 138,146 Cal.App.2d 722
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Irvin Leon MORGAN and Thomas Draper, Defendants. Thomas Draper, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 138

304 P.2d 138

146 Cal.App.2d 722

The PEOPLE of the State of California, Plaintiff and Respondent, v. Irvin Leon MORGAN and Thomas Draper, Defendants Thomas Draper, Defendant and Appellant.

Cr. 5709.

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

Dec. 12, 1956.

Eugene V. McPherson, Joseph A. Armstrong, and Gladys Towles Root, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant Draper appeals from a judgment of conviction of the charge of commission of the infamous crime against nature, Pen.Code, § 286, upon his willing co-defendant Morgan. The crime was proved by an eye witness and defendant did not testify or offer any defense witnesses.

It is claimed that certain evidence was received in violation of the Cahan rule, People v. Cahan, 44 Cal.2d 434, 282 P.2d 905. Defendant and Morgan were taken in flagrante delicto by the police. They were transported forthwith to the police station, thence to Valley Hospital, where the police requested Dr. Nieremberg to make some slides for them. Neither defendant objected and the doctor took from appellant's private parts certain fecal matter from which he made some smears and slides that were introduced into evidence over defendant's objection that they were obtained by unlawful search and seizure.

Appellant relies upon Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, which condemned as brutal and violative of due process the forcible extraction of evidence from the stomach of one under arrest. That case is not apposite for there was nothing resembling brutality here and there was apparent consent to the examination of defendant's person. Upon the authority of the following cases it must be held that there was neither a violation of defendant's immunity to self-incrimination nor the making of an unreasonable search and seizure. People v. Haeussler, 41 Cal.2d 252, 257, 259, 260 P.2d 8; People v. Woods, 139 Cal.App.2d 515, 525, 293 P.2d 901; People v. Smith, 142 Cal.App.2d 287, 298 P.2d 540; People v. Robarge, 41 Cal.2d 628, 632-633, 262 P.2d 14. In the Smith case this court said in 142 Cal.App.2d at page 293, 298 P.2d at page 544: 'It is the duty of law-enforcing agencies, after such arrest, to explore every area suggested by the circumstances of the apprehension of the accused to the end that if the latter is probably guilty, the evidence will have been so assorted and systematized as to expedite judicial procedure, and if the evidence should not in the opinion of the People's counsel warrant a trial, the accused will be promptly discharged.'

Moreover, the evidence of the police officer who witnessed the crime was sufficient to sustain the conviction without the aid of the physical examination of the defendant or the smear made as a result of same. In such circumstances any evidence secured through an unlawful search will be disregarded and the judgment affirmed People v. Tarantino, 45 Cal.2d 590, 596-597, 290 P.2d 505; People v. Lujan, 141 Cal.App.2d 143, 296 P.2d 93.

It is urged that the evidence is insufficient to sustain the finding of guilt because it does not prove penetration as required by Penal Code, § 287. On the contrary, the testimony of the eye witness is sufficient for that purpose, although he said it would be impossible to state that he saw penetration; his description of what he saw left no room for a negative inference. See People v. Ramos, 125 Cal.App.2d 383, 270 P.2d 540. If that were not so, the circumstantial evidence afforded by Dr. Nieremberg's slides would suffice. People v. Singh, 93 Cal.App. 32, 35, 268 P. 958; People v. Barber, 3 Cal.App.2d 124, 125, 38 P.2d 798.

Appellant further complains that the court erred in not ordering a sexual psychopath proceeding, although he did not file the affidavit requisite to his initiation of such an inquiry. Apparently the probation officer had recommended one, for, on mention of his report, the court said: 'I think sex psychopathy in the case of the defendant Draper is just a...