People v. Sutton, Cr. 4406

• Decision Date: 17 February 1964
• Docket Number: Cr. 4406
• Citation: 37 Cal.Rptr. 23,224 Cal.App.2d 708
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Hunter SUTTON, Defendant and Appellant.

Page 23

37 Cal.Rptr. 23

224 Cal.App.2d 708

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Hunter SUTTON, Defendant and Appellant.

Cr. 4406.

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

Feb. 17, 1964.

As Corrected on Denial of Rehearing March 12, 1964.

Hearing Denied May 13, 1964.

Roger Golla, Benicia (under appointment of the District Court of Appeal), for appellant.

Stanley Mosk, Atty. Gen., Edward P. O'Brien, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

BRAY, Presiding Justice.

Defendant appeals from judgment of conviction, after jury trial, of violation of section 285, Penal Code, incest, ¹ and from the order denying new trial. ²

QUESTION PRESENTED.

Was the failure to give a cautionary instruction, when none was requested by defendant, prejudicial?

EVIDENCE.

Janice Sutton, the complaining witness and the daughter of the defendant, testified that on August 23, 1960, she accompanied defendant, her father, in a Chevrolet automobile, to check on a which truck owned by defendant. The truck was kept in a wrecking yard outside Crescent City, California. Defendant left her in the car and got out to find the owner of the wrecking yard. Unable to do so, he returned to the car and drove further down the highway. He turned off onto a side road and parked the car. He sat there for a few minutes and then told her to remove her underthings, which she did. He thereupon committed an act of sexual intercourse with her. She told no one of this incident or of other such acts because 'Well, I was afraid of my father, in the first place, and, in the second place, he told me if I ever told my Mom that she would never love me any more and that we would both have to leave.' She recalled the exact date of the incident, as well as the dates of other such incidents, because she kept a diary and on those days when she had intercourse with her father she entered a small letter on the top of the page to so indicate. On cross-examination, she testified that she did not keep her diary regularly and some of the entries were made at later dates and from memory. At the time of the incident charged she was 13. At the time of the trial she was 16.

There was testimony by other members of the family, as well as by Janice, that defendant had had intercourse with Janice on several other occasions. Mingus Sutton, her half-brother, testified that he saw an act of intercourse take place between Janice and defendant while they were staying in a cabin in Oregon, and that he had seen other acts of intercourse while at their home in Crescent City. He admitted that he had been estranged from his father after December 12, 1960. Mingus' age is not given. However, he testified that in 1957 he was 17, so at the time he appeared in court he would be appropriately 23. Mingus complained to his father in December of 1959 about the latter having intercourse with Janice and his father threatened to blow Mingus' brains out if he told anyone. Mingus left home soon after that. Dennis Sutton, Janice's brother (15 or 16 at date of trial) corroborated Mingus' testimony that Janice had slept with defendant in Oregon, and further testified that he had seen an act of intercourse between Janice and the defendant take place in their home. He corroborated Janice's testimony that defendant's truck was kept at the wrecking yard near Crescent City. He testified his father had given him quite a few beatings, had threatened him with a hammer on one occasion, had hit him was a stump of a tree, and had taken his car away from him after his father's return from Missouri. Mrs. Sutton was not living with defendant and the children at the times related in the testimony. She remained in Crescent City where she had a job.

Defendant took the stand and denied that he had ever had intercourse with his daughter. He further testified that on returning home after a long absence, he attempted to discipline his daughter shortly before she accused him of the offense, at which time she threatened to get even with him. (Prosecutrix admitted that after defendant's return from a prolonged absence there was a certain amount of disharmony in the house, including punishments which she felt to be unjustly inflicted.) Defendant admitted going to the cabin in Oregon, but denied that Mingus could have seen any act of intercourse there because the partitions between the rooms reached the ceiling, not, as Mingus had testified, about 11 inches short of the ceiling. On rebuttal, pictures of the cabin were introduced showing that the partition did not reach the ceiling.

CAUTIONARY INSTRUCTION.

That it is well settled that in sex cases the failure to give the classic cautionary instruction is error, even when none is requested by the defendant, is conceded.

[D]efendant urges that the court erred in failing to give a cautionary instruction to the effect that, in prosecutions for sex offenses, accusations are easily made and difficult to disprove, and that the testimony of the prosecuting witnesses should be carefully examined. Even if such an instruction is not requested, as here, it is incumbent upon the court to give one on its own motion. People v. Nye, 38 Cal.2d 34, 40, 237 P.2d 1; People v. Willis, 129 Cal.App.2d 330, 336, 276 P.2d 853.' (People v Wein (1958) 50 Cal.2d 383, 406, 326 P.2d 457, 470.)

In People v. Nye (1951) 38 Cal.2d 34, 237 P.2d 1, a prosecution for rape, the Supreme Court, per Traynor, J., elaborated the principle (p. 40, 237 P.2d p. 4): 'A conviction is permitted on the uncorroborated testimony of the prosecuting witness. Although protection of the public makes it necessary to allow convictions on such testimony, since the offense is usually committed in secret, the usual defense can only be a denial that the offense was committed by the defendant or in the case of forcible rape that the prosecuting witness voluntarily consented to the sexual act. Whether the prosecuting witness is a child or a mature person, the verdict will usually turn on whether the jury believes the defendant's or the victim's version of the occurrence, and there is the same danger of misinterpreting the defendant's acts as well as the danger of spite, blackmail, vindictiveness, private vengeance, neurotic fabrication or fanciful imagination.'

As stated in People v. McGhee (1954) 123 Cal.App.2d 542, 544, 266 P.2d 874, 876: 'The reasons given for requiring the cautionary instruction in cases involving sex-offenses, particularly where the testimony of the complaining witness is uncorroborated, as here, are (1) the fact that the only available direct witnesses are ordinarily the complaining witness and the defendant, and hence the charge is easy to make and difficult to disprove; (2) cases involving sex-crimes generally arouse passion and prejudice in the minds of decedent people, including jurors; (3) the ease with which the charge can be made to satisfy spite, vengeance, vindictiveness and other base motives. [Citations.]'

The issue on this appeal is whether the error in the court failing to give the cautionary instruction, sua sponte, is prejudicial. That such is not necessarily prejudicial is shown by a number of cases. In People v. Nye, supra, 38 Cal.2d 34, 237 P.2d 1, the error was held nonprejudicial under the circumstances of that case. There the court said (p. 40, 237 P.2d p. 5): 'The circumstances of each case determine whether failure to give the instruction was prejudicial.'

In the following cases the courts felt that the circumstances of the particular case were such that it was not believed that the jury would have rejected the testimony of the prosecutrix had the cautionary instruction been given. (People v. Nye, supra, 38 Cal.2d 34, 237 P.2d 1 (assault with intent to commit rape); People v. Wein, supra, 50 Cal.2d 383, 326 P.2d 457 (several counts of rape over a period of time); People v. Lucas (1940) 16 Cal.2d 178, 182, 105 P.2d 102, 130 A.L.R. 1485 (contributing to the delinquency of a minor.)) In the latter case the court said (p. 182, 105 P.2d p. 104, 130 A.L.R. 1485): 'The authorities are legion to the effect that before a judgment may be reversed because of error it must appear from the record that it was prejudicial and caused substantial injury and that a different result would have been probable if the error had not occurred.' See also People v. Moore (1961) 196 Cal.App.2d 91, 101, 16 Cal.Rptr. 294 (abduction of a woman for defilement); People v. Whipple (1961) 192 Cal.App.2d 179, 188, 13 Cal.Rptr. 378 (pimping); People v. House (1958) 157 Cal.App.2d 151, 156, 320 P.2d 542 (assault with intent to commit rape); People v. Willis (1954) 129 Cal.App.2d 330, 336, 276 P.2d 853 (unnatural sex acts). In that case we listed four cases in addition to those mentioned herein, where the failure to give the instruction was held not to be prejudicial. In People v. Roberts (1942) 50 Cal.App.2d 558, 568, 123 P.2d 628 (statutory rape and lewd conduct with a child), the court refers to 10 prior cases in which...