People v. McCain

SHINN, P. J.

In a jury trial in which he was represented by private counsel, John William McCain was convicted of violation of section 288 of the Penal Code. His accuser was a boy 11 years of age. His testimony was that the offense was committed in a restroom of a church in Long Beach. After

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the verdict was returned, a probation officer’s report was ordered and physicians were appointed under section 5504 of the Welfare and Institutions Code to examine the defendant. Defendant made a motion for new trial, which was denied. Thereafter evidence was received and the court adjudged defendant to be a sexual psychopath and he was committed to Atascadero for observation and diagnosis for a period of not to exceed 90 days. It appears in the clerk’s minutes that the doctors who examined defendant in the present case had also examined him in another case in which, according to the record, defendant had been convicted of another offense of violation of section 288, and the written reports of the physicians in each ease were considered by the court in the present ease in reaching the conclusion that the defendant is a sexual psychopath within chapter 4 of part 1, division VI of the Welfare and Institutions Code. The appeal is noticed from the judgment and the order denying the motion for new trial and the order committing defendant for sexual psychopathy.

During the trial there were reciprocal motions for orders permitting pretrial discovery and inspection, both of which were granted and complied with.

The grounds on appeal are (1) insufficiency of the evidence to justify the verdict, (2) the court erred in its order for pretrial inspection of documents, in failing to instruct on circumstantial evidence and in its rulings on the admission of evidence. It is urged further that the court erred in refusing to indicate what its ruling would be if the defendant took the stand and should be asked whether he had suffered a prior felony conviction. We have concluded that the evidence was sufficient to justify the verdict and that none of the other points urged foi reversal is well founded.

With respect to the sufficiency of the evidence it is not contended that the boy was unintelligent or that his testimony was uncertain or contradictory in any material respect. He testified that while he was attending church service with his mother he asked to go to the washroom, on the way was accosted by defendant, who took him to a washroom in the pastor’s study and there committed acts upon his person which would constitute the offense charged. The boy ran away, returned to his mother, appeared greatly disturbed and upset and made a complaint to his mother. Later he identified a photograph of defendant, which was shown to him with a number of others by the police, and he identified him at the