People v. Terry, Cr. 2186

• Decision Date: 22 September 1950
• Docket Number: Cr. 2186
• Citation: 222 P.2d 95,99 Cal.App.2d 579
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. TERRY.

Page 95

222 P.2d 95

99 Cal.App.2d 579

PEOPLE v. TERRY.

Cr. 2186.

District Court of Appeal, Third District, California.

Sept. 22, 1950.

Charles F. Gray, Jr., Sacramento, for appellant.

Fred N. Howser, Attorney General, for respondent.

PEEK, Justice.

By an information defendant was charged with violation of section 288 of the Penal Code. Following his plea of not guilty the cause proceeded to trial before the court sitting without a jury. At the conclusion thereof defendant was found guilty and was sentenced to imprisonment for the term prescribed by law. He now appeals from said judgment of conviction.

Resolving, as we must, all conflicts in the evidence in favor of respondent and indulging in all reasonable and legitimate inferences in favor of respondent, the record may be summarized as follows:

Prior to the alleged offense the complaining witness, who was eight years of age, and her brother, aged five, visited the defendant at a cabin which was located only a few feet from the home of a greataunt where the children were staying. As they stood outside the cabin the defendant, grabbing the prosecutrix by the hand, took her inside the cabin where he committed the acts constituting the basis of the charge. Her testimony concerning what occurred outside the cabin and her actions upon leaving were corroborated by her five year old brother. Immediate complaint was made by her to her aunt and to her parents when they arrived home some time later. The defendant, when confronted by the child's parents and her aunt, denied he had molested the child. Testifying in his own behalf he gave testimony wholly different from that of the complaining witness and in addition stated that his first knowledge of any complaint was when he was accosted by the children's aunt and their parents. On cross-examination he admitted to a degree some of the acts as charged. However, on re-direct examination he stated that in his conversation with the police he had told them the same story he told in court but when a detective threatened him he changed his story, and that on the morning of his preliminary examination he had refused to sign a statement presented to him by the chief of police on the ground it was not true. Subsequently the testimony of the police officer as to the purported admissions and confessions of the defendant was stricken from the record.

We find no merit in any of the numerous contentions appellant has now raised on appeal.

He first contends that the committing magistrate failed to inform him of the charge and of his right to counsel. The record of the preliminary examination was not introduced in evidence at the time of the trial or is it now before this court. Moreover no objection upon this ground was raised by defendant's counsel at the time of the trial in the Superior Court. Furthermore it appears from a purported quotation from the transcript of the preliminary examination, contained in defendant's brief, that the court informed defendant '* * * of his rights * * *' that he was 'entitled to be represented by an attorney', that he indicated 'he didn't want to have an attorney', but that nevertheless 'the defendant is entitled to the services of an attorney and even though it inconveniences the court to continue it the continuance will be granted.' It further appears in the transcript before us that the defendant, on cross-examination, testified that he remembered that at the time he was arraigned on the preliminary examination he was advised of his rights and his right to counsel. Even if we could consider the alleged irregularities so complained of by defendant, see People v. O'Neill, 78 Cal.App.2d 888, 892, 179 P.2d 10, his own purported quotation from the transcript of the preliminary hearing refutes such contention.

His second contention is predicated in part upon his first--the lack of counsel at the preliminary hearing. It is well established that the right to counsel is a right which may be waived. In re Connor, 16 Cal.2d 701, 108 P.2d 10. Equally well established is the rule that the reviewing court is limited to the transcript on appeal. People v. Gonzales, 69 Cal.App. 609, 231 P. 1014. Again, even assuming the validity of the purported quotation from the transcript of the preliminary hearing as set forth in defendant's brief, such excerpt, rather than sustaining defendant's contention, supports his conviction, since it is there shown that after the magistrate had continued the hearing for one week in order to enable defendant to secure counsel, and when the case was finally called defendant indicated he was ready to continue without counsel.

Defendant's next contention, that the corpus delicti was not established, is essentially a reargument as to the weight of the evidence, which we assume was likewise made to the trial court. Its conclusion thereon will not be disturbed on appeal in the absence of some showing as to the falsity or inherent improbability thereof, neither of which appear in the case. As previously noted the testimony of the complaining witness was corroborated to a degree by her brother. Also there is the testimony of her parents and her aunt concerning the complaint which she made to them. It is the rule that to sustain a conviction of an adult of the crime denounced by section 288 of the Penal Code it is not necessary that the testimony of a complaining witness under the age of 14 years be corroborated, since children under that age are not deemed to be accomplices to the crime. People v. Showers, 90 Cal.App.2d 248, 253, 202 P.2d 814.

Defendant's next contention is predicated upon the alleged erroneous admission of testimony given by the chief of police concerning statements made...