People v. Rayol

FOX, J. pro tem.—

Defendant was charged by an information with a violation of section 288a of the Penal Code. A jury trial resulted in a verdict of guilty. She appeals from the order denying her motion for a new trial.

At about six o’clock in the evening of October 19, 1943, defendant went to a certain cafe and cocktail bar in the city of Los Angeles. When she went there she had twenty-five dollars. During the evening she spent it all but one dollar, buying drinks for herself and the service men who came up to the bar. She left there in a taxi at twelve o’clock with an Army officer whose face she had slapped earlier in the evening because he had said something dirty to her. One of the waitresses testified that she observed defendant sitting at the end of the bar from 9 ;30 until 12:00 o’clock and that she con

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stantly had a drink in front of her. It was stipulated that two other employees, if called as witnesses, would testify that they observed defendant before the place closed and that she was “very drunk." She was taken by the Army officer to his hotel room. There, police officers who had followed them to the hotel, observed from an adjoining roof the Army officer commit upon the person of defendant the acts outlawed by section 288a, Penal Code. Defendant testified she had a faint memory of leaving the bar but no recollection of meeting the Army officer nor of slapping his face while at the bar. Aside from a hazy memory of some men dressing her and being in a car, she said she remembered nothing that occurred from the time she left the bar until she awoke in Lincoln Heights jail.

Defendant’s position is that she was completely unaware of the acts committed on her by the Army officer—that she was not a conscious, willing, participant in the acts which occurred in his hotel room. This theory of defendant’s ease was presented to the jury in an instruction that they should find defendant not guilty unless they were convinced by the evidence beyond a reasonable doubt that the defendant “knowingly" participated in the unlawful act. But, defendant argues, the jury had to depend entirely on circumstantial evidence to determine whether or not she “knowingly" participated in the act and they were inadequately instructed on this phase of the case. This contention is well taken.

The following instructions as to circumstantial evidence were given: “There are two classes of evidence recognized and admitted in courts of justice, upon either of which juries may lawfully find an accused guilty of crime. One is direct evidence, which is the direct testimony of any eyewitness to a transaction, and the other is circumstantial evidence, which includes all evidence other than that of an eyewitness. Such evidence may consist of any acts, declarations or circumstances admitted in evidence tending to prove the crime charged or tending to connect the defendant with the commission of the crime.