People v. Pierson, Cr. 3257

• Decision Date: 14 March 1957
• Docket Number: Cr. 3257
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Respondent, v. Charlie PIERSON, Defendant and Appellant.

Page 994

307 P.2d 994

149 Cal.App.2d 151

The PEOPLE of the State of California, Respondent, v. Charlie PIERSON, Defendant and Appellant.

Cr. 3257.

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

March 14, 1957.

J. Fred Haley, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., of the State of California, Clarence A. Linn, Asst. Atty. Gen., for respondent.

PETERS, Presiding Justice.

Defendant was charged with incest, statutory rape, and contributing to the delinquency of a minor. The last count was later dismissed by stipulation. The jury acquitted the defendant on the rape charge and convicted him on the incest charge. From the judgment entered on the verdict, and from the order denying his motion for a new trial, the defendant appeals.

There were several prior trials resulting in jury disagreements. On the present appeal Pierson challenges the sufficiency of the evidence, challenges one instruction, contends that the prosecuting attorney was guilty of prejudicial misconduct, and urges that he was not granted the speedy trial guaranteed to him by law.

The offense allegedly occurred on Saturday, April 30, 1955, in the home where the defendant lived with his family, including the prosecuting witness, his daughter Ruby, a child then 11 years of age. In the afternoon of that day the mother and father of Ruby left the house, leaving Ruby and the other children at home. Ruby was watching television in the living room. With her was a neighbor boy, her 7-year old brother, and two sisters, aged 10 and 4 years, respectively. Ruby's testimony, on direct examination, was reasonably clear and coherent. She testified that, after her father and mother had left the house, her father returned alone, went into the kitchen and beckoned to her to come to that room. She went out to the kitchen, and then her father went into the bathroom, called to her, and she followed. The bathroom door was partly open, and remained so, during the events about to be described. She testified that defendant stood her against the bathroom wall, pulled down her panties, zipped open his pants, and then 'put his private parts into mine.' In about 10 minutes defendant lifted the witness and sat her on the face bowl with her head against the mirror. She had grease on her hair and some of this came off on the mirror. She was holding the soap dish so hard that it broke.

The witness also testified that when her mother came home later that day the mother asked the witness about the grease on the mirror and the broken soap dish. The witness then denied any knowledge about them, but two days later told her mother all about what had happened.

The witness also testified that on some eight or nine prior occasions the defendant had forced her to have intercourse with him. The first time occurred at some indefinite time in the past when her mother was in the hospital. On that occasion the event had occurred in her mother's bed and she bled on the bed. She testified that the defendant had told her that he would kill her if she told anyone about these events.

On cross-examination some major inconsistencies between her direct examination and her testimony on prior trials were developed. She first said that she did not remember what time it was when her father returned to the house, but later testified that she had looked at the clock, and it was 3 p. m. She also said that her four-year old sister came into the bathroom while intercourse was occurring, and then left. All during the event the bathroom light was on and the door half open. After her father had finished with her she returned and watched television. She did not tell her brother or anyone else about what had occurred until she told her mother two days later.

She was uncertain whether her father had left the house after the events testified to, but in an earlier trial had testified that he did not leave the house. Also on an earlier trial she had testified that she had changed her story about her father staying at home after the intercourse, because her mother had told her that she was wrong.

On a prior trial she had testified that on the day she had told her mother about the events here involved, her mother started to talk to her about sex; that she got the idea about her father from talking with her mother and 'adopted all' her mother had then said On the present trial she could not recollect having so testified.

Although she had testified on direct examination that her father had had intercourse with her on eight or nine prior occasions, until she told her mother about the events of April 30, 1955, she had never told anyone about these occurrences. She admitted that on the day before she told her mother about the assault, she was 'angry' with her father, and had argued with him.

The 10-year old sister of Ruby, Barbara, testified that she and the other children were watching television on April 30, 1955, when her father returned to the house, and went into the kitchen; that Ruby then went into the kitchen; that she thereafter looked through the open door to the kitchen and did not see Ruby or her father; that sometime later Ruby appeared and again began to look at relevision; that then her father left the house, apparently to pick up her mother. On cross-examination she conceded that her view into the kitchen was not completely unobstructed.

Defendant's wife, who had once been convicted of an assault with a deadly weapon, testified that about a year before the alleged offense she had been required to go to the hospital; that when she left, there were clean sheetc on her bed; that when she returned the sheets were stained with what looked like blood.

She also testified that on the afternoon of April 30, 1955, her husband had taken her downtown; that shortly after 3 p.m. they had parted company upon his representation that he would be back in a few minutes; that he failed to return and she took a bus home, and when she got off the bus there was her husband, who rode her and a neighbor home. She immediately discovered the grease on the mirror and the broken soap dish, but no one seemed to know how they had occurred; that she had washed Ruby's hair the night before and there was grease on it. She was by no means clear as to how and when Ruby had first told her of the incident, but was certain that after she talked with Ruby she had called the police. She denied that she and her husband had quarreled prior to the report to the police. She admitted that before she had gone to the hospital she was bleeding from her private parts and was by no means positive that she might not have caused the stain she found when she returned.

A doctor testified that he examined Ruby on May 4, 1955, four days after the alleged offense occurred. He testified that Ruby's 'vagina was dilated or enlarged to a size that would indicate that something had dilated the vagina, that is, it was comparable to that of an adult woman'; that the condition he found usually resulted from sexual intercourse; that he found no spermatozoa; that it was 'very' possible to find spermatozoa within 4 or 5 days of intercourse, but it was 'very frequent' not to find spermatozoa after that length of time. The hymen was not intact.

Appellant admitted that he had left home with his wife on the afternoon of April 30, 1955, leaving the children, including Ruby, at home. He testified that he parted with his wife in downtown Oakland, agreeing to pick her up later; that he picked up 2 neighbors and drove them home and then picked up a boy named 'Sonny'; that with Sonny in the car he drove to his own home and went in, leaving Sonny in the automobile with the motor running; that he simply went into the house to urinate, which he did, and came out after being in the house not over 3 minutes. He denied that Ruby was in the kitchen or bathroom with him, and denied ever having had intercourse with her. After leaving the house he testified that he picked up his wife and returned home. It is of some significance that 'Sonny' was not produced as a witness by appellant, although, if appellant's story is true, Sonny could have furnished powerful corroboration.

He explained the stained sheets in the bed by testifying that about a year before the alleged offense his wife had gone to the hospital because of a miscarriage, and before she left home she had stained the sheets with her blood. He also claimed that in the week before the alleged offense he had had several arguments with his wife, who had threatened to 'fix' him, and had several arguments with Ruby. This was denied by his wife, but partly corroborated by Ruby. He claimed that he had broken the soap dish on the 29th of April.

On cross-examination the prosecuting attorney brought out numerous inconsistencies between appellant's story on the present trial and his testimony on the prior trials.

This is a fair summary of the basic evidence introduced. The three major witnesses against appellant were, of course, Ruby, the doctor, and appellant's wife. Appellant argues that Ruby's story was a fabrication dreamed up by his wife, and that the testimony of his wife and Ruby was inherently improbable. It is argued that it is inconceivable that even the most depraved person would commit an act of incest in a bathroom with the light on and the door open when there were several children watching television in an adjoining room. This was, of course, a jury question. We are not permitted to weigh the evidence. The jury saw and heard these witnesses. The jury, properly instructed, elected to believe the prosecution's witnesses and to disbelieve defendant. This was the jury's province and is not the function of...