People v. Wagner

NOURSE, P. J.

Defendant was charged in two separate informations with a violation of section 702 of the Welfare and Institutions Code in relation to two boys aged fifteen and sixteen. By consent the two actions were consolidated for trial to a jury and in both cases a verdict of guilty was returned. Motions for a new trial were denied and the defendant has appealed from the judgments. Though separate clerk’s transcripts have been filed, numbered 2272 and 2273 both cases have been briefed and argued as one, and the evidence and rulings are all treated as applicable equally to both cases. Technically our opinion will apply to case number 2272 but it will cover the judgment in case number 2273 as well. The basis of the charge in each ease is that defendant took the two boys on separate occasions to an auto court in Marin County where they stayed over night and where defendant induced the boys to drink intoxicating liquor and endeavored to commit with them certain immoral acts.

The two boys were students in the Piedmont High School in Oakland. The defendant was a frequent visitor at the school and showed an interest in the boys during their par

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ticipation in school athletics. He was a member and frequent visitor of the Athens Athletic Club in Oakland and the San Francisco Yacht Club at Belvedere, Marin County. He helped organize, or was interested in, a group of boys known as the “Sea Scouts,” of which the complaining witnesses were both members, and had formed the practice of taking members of the group individually to Marin County for participation in boating and rowing. Each of the boys testified that on specified dates the defendant drove them to Marin County where he had engaged accommodations at an auto court for the night, that he served them with drinks of intoxicating liquor, and that while they occupied the same bed the immoral practices were carried on. Prior to his trial the defendant admitted to the district attorney that he had frequently given intoxicating liquor to boys who were minors, but denied commission of the acts charged in the information. The district attorney testified to this conversation, and this is assigned as one of the errors of the trial. Assignment of two other errors is made—the insufficiency of the evidence, and the misconduct of the district attorney.

On the question of the sufficiency of the evidence no extended argument is necessary. The appellant does not contend that the evidence of the two boys is not sufficient to sustain the verdicts. His contention is that both were contradicted as to the respective dates when the offenses were alleged to have been committed. Testimony was offered by appellant, including records of the Athens Club and of the Yacht Club, tending to impeach that of the two boys relating to the dates when they were in the company of appellant. In rebuttal the State offered evidence from which the jury could have inferred that the records of the Yacht Club had been altered for appellant’s benefit. It also fully discredited the testimony of appellant’s witnesses. We have therefore nothing more than the ordinary conflict between the stories of the respective witnesses. The jury elected to give credit to those called by the State, and that ends the controversy so far as this appeal is concerned. (2 Cal.Jur. 921.)