People v. Wertz

• Decision Date: 24 October 1956
• Docket Number: Cr. 2687
• Citation: 302 P.2d 613,145 Cal.App.2d 395
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Warren WERTZ, Defendant and Appellant.

Page 613

302 P.2d 613

145 Cal.App.2d 395

The PEOPLE of the State of California, Plaintiff and Respondent, v. Warren WERTZ, Defendant and Appellant.

Cr. 2687.

District Court of Appeal, Third District, California.

Oct. 24, 1956.

Mark A. Joseph, Modesto, for appellant.

Edmund G. Brown, Atty. Gen., by G. A. Strader, Deputy Atty. Gen., for respondent.

SCHOTTKY, Justice.

Appellant, a man of over 77 years of age, was charged by information with the crime of violating section 288a of the Penal Code, in two counts: Count I, charging that appellant committed the act denounced by said section with James Stingson, a boy of 15 years; and Count II, charging that appellant committed the act with Charles Hopkins, a boy of 16 years. Following appellant's plea of not guilty, the case was tried and at the conclusion of the evidence the court advised a verdict of not guilty as to Count I. The jury then found appellant not guilty as to Count I and guilty as to Count II. Thereafter, the court, after denying a motion to set aside the verdict and for a new trial, ordered that pronouncing of judgment be suspended and that appellant be placed on probation for a period of five years. Appellant has appealed, the notice of appeal stating that the appeal is 'from the judgment and verdict of conviction as to Count Two of the Information herein, and also from the order of the Court denying defendant's Motion for a New Trial as to Count Two of said Information.'

The factual situation as shown by the record may be briefly summarized as follows:

On the morning of January 6, 1956, two boys, James Stinson and Charles Hopkins, went together to the home of appellant Warren Wertz in the city of Modesto, Stanislaus County, California. Upon being admitted by appellant, they first went to the kitchen where the boys sat for a while, talked and flipped coins. James Stinson then went into the bedroom with appellant. At this time appellant was dressed only in a shirt and socks. Stinson and appellant undressed and while in the bedroom the appellant copulated the sexual organ of James Stinson with his (the appellant's) mouth. James then proceeded to dress and Charles Hopkins came into the bedroom. The appellant told Charles to take his clothes off, which he did, and appellant then committed the same act with Charles, while James Stinson, who testified to seeing the offense committed by appellant with Charles Hopkins, remained in the room.

Two police officers of the Modesto Police Department then arrived at appellant's residence and, after they knocked on the door for several minutes, the appellant appeared at the door clad only in a pair of pants. The appellant and the two youths were taken into custody.

Appellant's first contention is that Charles Hopkins, the participant with appellant in the commission of the offense charged in Count II, was an accomplice and that his testimony is not corroborated as is required by section 1111 of the Penal Code. Appellant bases his argument upon the contention that James Stinson was an accomplice in the commission of the offense involving Charles Hopkins and that therefore the testimony of Stinson could not be used to corroborate the testimony of Hopkins, who testified to all the details of the offense charged in Count II.

Admittedly, if Stinson must be considered an accomplice in the act committed by appellant with Charles Hopkins, appellant's conviction on Count II could not be upheld. However, there is no evidence in the record that would support, much less compel, a finding that James Stinson aided, abetted or even encouraged the commission of the act of perversion by appellant and Hopkins. Furthermore, the court instructed the jury fully and correctly on the law as to accomplices and specifically instructed the jury that:

'An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial. Whether or not any witness in this case was an accomplice as defined in these instructions is for the jury to determine from all the testimony and the circumstances as shown by the evidence.

'To render a person an accomplice, he or she must in some manner knowingly and with criminal intent aid, abet, assist, or participate in the criminal act. If you should find that any witness in this case so conducted himself in respect to any crime charged, you must find that he was an accomplice.'

What was said in the case of People v. McMahon, 116 Cal.App.2d 883, at page 887, 254 P.2d 903, 905, is quite applicable to the instant case:

'Defendant's second contention is predicated upon the action of the trial court in denying his motion to dismiss Counts 3 and 4. His argument in support of this contention proceeds upon the theory that since both of the boys involved in these counts were over the age of 14 years they were therefore accomplices, and since their testimony was not corroborated it was error for the court to deny his motion. Our examination of the record does not sustain such a contention. While each of the boys was an accomplice with respect to the particular act in which he participated the evidence does not disclose as a matter of law that he was an accomplice with respect to the acts perpetrated by defendant on the other. Both of the complaining witnesses were present at the time and place; each was the recipient of the same offer and proposition and each identified the defendant as the one who had picked them up in his car and made the propositions to them. The mere fact that each was an accomplice of the defendant with respect to the particular act engaged in by each did not in and of itself render him an accomplice as a matter of law as to the act charged against defendant with the other complaining witness. This was a question of fact to be determined by the jury and the court properly left that to the jury for its determination. People v. Griffin, 98 Cal.App.2d 1, 219 P.2d 519.'

Appellant next contends that the court erred in admitting the testimony of Raymond Schinn, a boy of 14 years of age, as to similar offenses committed by appellant with Charles Hopkins. This witness was called by the People and testified that he had known the appellant for approximately eight or nine months prior to the trial. About 3:30 o'clock one afternoon...