People v. Smith

[163]

ADAMS, P. J.—This

appellant was charged with a violation of section 288 of the Penal Code, to wit, that he committed a lewd and lascivious act upon the body of a girl 4 years of age. He pleaded not guilty and not guilty by reason of insanity. A motion to arrest proceedings under section 1368 of the Penal Code was granted, but the court found defendant sane. After his conviction he made application to be adjudged a sexual psychopath (Welf. & Inst. Code, §§ 5500-5502), but same was denied. He appealed from the judgment of conviction and from an order denying a new trial, and now claims that same should be reversed upon three grounds, to wit: that the court improperly and prejudicially influenced the jury, that it erred in admitting statements made by defendant without proof of the corpus delicti, and that it was error to deny a hearing upon his petition to be declared a sexual psychopath.

The first contention is based upon an occurrence after the jury had been retired for several hours, and' the court had called them back to report. This colloquy followed:

‘ ‘ The Court : Have you jurors been able to reach a verdict ?

‘1 Tiie Foreman •. We have not been able to reach a verdict.

I ‘ The Court : What is the reason for it ?

“The Foreman: There is a certain disagreement upon it.

II The Court : What is the reason for the disagreement ?

“The Foreman: They feel they haven’t had enough evidence on it. They wanted some more particulars on it.

11 The Court : What seems to be the problem ?

“The Foreman: As far as the man’s guilt is concerned.

“The Court: It wasn’t a matter of his sanity or insanity, was it?

‘1 The Foreman : In certain cases, yes.

“The Court •. Didn’t you hear what the Court said to you 1o begin with, that you are simply trying the case, that there would be further proceedings in insanity? Do you remember that ?

1 ‘ The Foreman : That is what some didn’t.