People v. Boud

WOOD (Parker), J.

Defendant Boud and one O’Hara were charged with violation of section 286 of the Penal Code (sodomy). In an amended information, 0 ’Hara was charged with violation of said section 286 and with violation of section 288a of the Penal Code. He pleaded guilty to the charge of violation of section 288a. In the trial of Boud, a jury was waived. He was adjudged guilty. Probation

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was granted and proceedings were suspended. Boud appeals from the order granting probation.

Appellant contends that the conviction is against the law and the evidence in that the corpus delicti was not established; the evidence did not, beyond a reasonable doubt, establish penetration; the evidence disclosed that the defendant was an unconscious victim of any attempted act of sodomy; and the law should be construed as making the aggressive, active participant the violator of the law.

O’Hara, called as a witness by the People, testified that he was in the Navy; on September 20, 1954, after 2 a. m., he was walking on a street in Long Beach on his way back to his ship, and the defendant, who was alone in a large automobile, asked him if he was going to the landing and if he wanted a lift to the landing; 0 ’Hara got into the automobile, and defendant drove to a place outside a naval base and stopped the automobile. In his further testimony he related facts which, if believed, were sufficient to prove that defendant violated said section 286 as alleged. It is not necessary to state the details as related by him. On cross-examination, he said that during the night, prior to getting into defendant’s automobile, he (O’Hara) had been in several bars, had several drinks of intoxicating liquor, was “pretty groggy,” was in a daze of intoxication, and was drunk; that it was possible there was no penetration.

Officer Samuelson testified that on September 20, 1954, about 2:45 a. m., he and Officer Wolfe, who were in an automobile, saw defendant and O’Hara riding in a 1952 Cadillac automobile; the officers kept the automobile under observation ; about 2:50 a. m. the automobile stopped near a barracks ; the officers parked their automobile about 35 feet back of the Cadillac; there was another automobile between the officers’ automobile and the Cadillac; he (Samuelson) approached the Cadillac on the right side thereof, and Officer Wolfe approached it on the left side; as they approached the automobile they were in a crouched position; he (Samuelson) flashed a light into the front seat and saw defendant and 0 ’Hara lying in the front seat on their left sides, with their heads toward the left door; O’Hara’s pants were down around his knees; defendant’s pants were down to the thigh area; O’Hara was up against defendant; when the light flashed into the car O’Hara moved back, and the witness (Samuelson) saw the penis of O’Hara as it came out of the rectum of defendant; when the witness flashed the light he saw that