People v. Lewis

DOOLING, J.

Appellant Lewis and one Soto were jointly tried before a jury and each convicted of statutory rape. (Pen. Code, § 261(1).) They were tried and convicted as aiders and abettors (Pen. Code, § 31), the actual act or acts of intercourse having been committed by C, a high school boy of the age of 18, with one B, a 16-year-old high school girl.

The evidence, disregarding conflicts, showed that Soto drove the appellant and the two young people to a secluded spot in the country where the two young people disrobed and engaged in the sexual act while appellant took several photographs of them.

Prior to this time C and Soto had discussed the taking of such photographs and C brought one M, a school girl of 14, to Soto as a possible participant. Soto took the two to the home of appellant where appellant showed two moving picture films depicting the sexual act and other obscenities. M after seeing these pictures refused to proceed and C then secured B who was also taken to appellant’s home and shown similar moving pictures.

Appellant himself testified that he did not know in advance that C and B were to engage in a sexual act or even that B was to disrobe or to be photographed, it being his understanding that he was only to take pictures of 0 in the nude ; and that when they arrived at the scene and both young people disrobed he was a passive bystander who made no suggestion as to any pose and only took such pictures as C suggested.

Appellant relies on the rule that mere knowledge that a crime is being committed and the failure to take any steps to prevent its commission do not, standing alone, amount to aiding and abetting.

(People

v.

Weber,

84 Cal.App.2d 126, 130 [190 P.2d 46];

People

v.

Hill,

77 Cal.App.2d 287, 293 [175 P.2d 45].) It may be conceded for the purpose of this opinion, without deciding the question, that if the only evidence was that defendant took pictures of the couple while engaged in the sexual act without any suggestion or prompting to them on his part he would not be guilty as a principal. Here however the jury had the further evidence that before the crime was committed appellant had shown moving pictures