People v. Mason

California Court of Appeal Feb 1, 1955 No. Crim. 5230Published

Before: Fox

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Holding. The court held that the evidence was sufficient to support the conviction and that the trial court did not abuse its discretion in denying a new trial based on the presence of graffiti at the crime scene.

Issues

Whether the testimony of the police officer was inherently improbable and insufficient to support the verdict.
Whether the trial court erred by failing to sua sponte instruct the jury to disregard graffiti observed during a site inspection.

Disposition. affirmed

Quotations verified verbatim against the opinion

“To come within the rule of inherent improbability the testimony must be such that it is physically impossible for it to be true, or its falsity must be apparent without resort to inference or deduction.”

“it is the exclusive province of the trial judge and jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.”

“The trial court thus had an opportunity to consider the likely effect of this incident on the jury. Its decision is determinative on appeal in the absence of a clear abuse of discretion.”

[534]

FOX, J.

Defendants, Rodney 0. Owens and Alfred John Mason, were convicted of violating section 288a, Penal Code. Defendant Owens appeals from the ensuing judgment and order denying his motion for a new trial.

The incident here involved took place in a public rest room in the city of Los Angeles. Police officers Barlow and Houchen, at approximately 11 a. m. on the day in question, entered a room some 4 feet wide and 20 to 30 feet in length which extended the entire length of the building between the two rest rooms for women and men. From this space the officers could see into the men’s rest room by means of a number of peep holes in the wall and thus there observed the occurrences here related. From this vantage point Officer Barlow saw appellant enter the rest room and go into one of the toilets. Two or three minutes later Mason entered. There was no one else in the rest room. The officer then witnessed an act of oral copulation. Appellant denied participating in such an act. But the jury found him guilty and upon their verdict the judgment was entered.

Appellant’s first contention is that the evidence was insufficient to justify the verdict of guilty. He bases this argument on the theory that the testimony of Officer Barlow was inherently improbable. There is no basis in fact for such contention. The officer testified to having seen appellant arise from the commode in the stall where he had been seated, step forward, stop just outside of the partition separating the toilets, and half turn, being then at right angles to the witness so that he then saw appellant in profile from about his ankles to his neck. Appellant stood

erect;

his codefendant was on his knees. It was in this setting that the witness observed the illegal act.

To come within the rule of inherent improbability the testimony must be such that it is physically impossible for it to be true, or its falsity must be apparent without resort to inference or deduction.

(People

Frankfort,

114 Cal.App.2d 680, 700 [251 P.2d 401]

People v. Mason

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FOX, J.

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