People v. Massey

SHINN, P. J.

Paul George Horner appeals from judgments adjudging him guilty of several felonies and from an order denying his motion for a new trial.

The charges were (1) participating with one Mildred, a codefendant, in violation of section 288a of the Penal Code on June 15, 1954, (2) participating with said Mildred a co-defendant, in another violation of the section on the same day, (3) violation of the section committed with one Bonnie on the same day, and (4) conspiracy with said Mildred to commit violations of said section.

The case of Horner and his codefendant was tried upon testimony given at the preliminary examination and additional testimony received at the trial. Both defendants were convicted of the first three offenses charged and acquitted of the fourth. On behalf of Horner an opening brief was filed by Mr. Dunham, who represented Horner at the trial. He did not appear when the appeal was set for argument. In that brief the only ground urged for reversal was that there was “no competent or substantial evidence beyond a reasonable doubt to establish the crime.” And the entire argument of the point reads as follows: “With respect to the charges set forth in the aforementioned three Counts of the second case, the entire record of the Trial evidences conclusively that the essential elements of the crime alleged were not committed (Reporter’s Transcript, pp. 111-163; 178). Here again the attention of the Court is directed to the Case of

People

v. Kennedy, 21 Cal.App.2d 185 [69 P.2d 224].” At the time of the argument Horner was given leave to obtain new counsel and to file an additional brief. This has been

done;

a brief has been filed by Mr. Duffy.

As to charges 1 and 3 above, appellant on the stand admitted acts of physical contact which were elements of the

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offenses charged. Bonnie testified to similar acts committed by appellant as evidence of the commission of the second offense above mentioned. In addition there were photographs received in evidence taken at the time of the commission of the several acts charged. These were explained by the witnesses; the subjects of the pictures, appellant and Mildred, were identified and the acts were described. Understandably, it has not been suggested by the appellant that these pictures be brought up and considered as a part of the record on appeal. Defendant’s explanation on the stand was that the acts were committed for the sole purpose of obtaining the pictures, but this, even if true, would not necessarily have constituted a valid defense. There was ample evidence of physical contact as a means of committing the offenses, and even if the trial court could have believed it was not the purpose of the participants to gratify sexual desires, that was not a conclusion which the court was required to reach as the only reasonable deduction from the evidence. From the evidence given concerning the actions of the parties and the nature of the pictures we have no reason to doubt that the evidence justified the court in determining that the offenses charged had been committed. It does not appear from the record, as a matter of law, that defendant had no criminal intent.