People v. Phillips

ADAMS, P. J.

In an information filed by the District Attorney of Sacramento County defendant was charged in count one of deriving support and maintenance, in whole or in part, from the earnings and proceeds of a prostitute, knowing that such earnings and proceeds were derived from acts of prostitution; and, in count two, of soliciting for a prostitute.

At the conclusion of the trial the first» count was dismissed. Defendant was convicted on the second count.

On this appeal it is contended first that the trial court should have instructed the jury to disregard all testimony relating to the first count, particularly the evidence tending to prove receipt by defendant of compensation for

soliciting;

and, second, that the evidence is insufficient to prove “soliciting” by defendant for a “prostitute.”

The evidence shows that one Evelyn Fulford, who previously had been a waitress in Pasadena, had been living with defendant in Sacramento for a month or so prior to the 14th day of October, 1944. On the evening of October 14th she and defendant were driving about in Sacramento in defendant’s car. Two soldiers stationed at Mather Field, who had started to “hitch hike” back to the Field from Sacramento, saw defendant’s car stop a block ahead of them. As they approached this car Mrs. Fulford got out of it and appeared to be searching for something. She asked the two soldiers to help

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her find the heel of her shoe. They engaged in the search without results, and in the meantime told Mrs. Fulford and defendant that they were trying to get to Mather Field, whereupon the latter offered to take them there. After they had entered the car and driven a few blocks Mrs. Fulford told the soldiers that she would have sexual intercourse with them for $5 each. One of them remarked that “that would be a good deal,” whereupon defendant Phillips stated that they “would not regret it, that she was a good clean girl.” The car was then parked and one of the soldiers, a sergeant, first had intercourse with Mrs. Fulford in the back seat of the car, while the other soldier, a private, stood with defendant outside and at the back of the automobile. The sergeant gave Mrs. Fulford some money, amounting to three or four dollars, which she gave to defendant, stating that he was her banker. The private then entered the car with Mrs. Fulford, where they had intercourse, while the sergeant and defendant stood outside and talked. During this conversation defendant stated that he had met Mrs. Fulford some three weeks previously; that she had been in “some sort of a jamb,” and that he had helped her out of it; that she had told him she wanted to make a little quick money and he was helping her. After the other soldier got out of the car, the four of them reentered it and drove to a cafe where they picked up two sailors to whom the same proposition was made. The six of them then returned in defendant’s car to the same spot where the previous acts had been committed. They had been there but a few minutes, and one of the sailors was about to have intercourse with Mrs. Fulford, when two members of the military police drove up. One of these men testified that when he arrived at the scene Mrs. Fulford was lying in the back seat of defendant’s car and defendant was at the wheel; that defendant started to drive off, but was stopped within two or three blocks, whereupon the whole party, excepting the sergeant, who had run away, was taken to the police station. There the private demanded of defendant the return of his five dollars, and after some argument defendant returned it to him. There was also testimony that defendant, when arrested, had on his person something less than $10; also that a towel was found in defendant’s ear which the sergeant testified he had used after his act of intercourse, which towel was subsequently given to and accepted by defendant.