People v. Guthrie

[721]

WOOD (Parker), J.

Defendants were charged with "violation of section 288a of the Penal Code. Defendant Guthrie pleaded guilty. Defendant Shickner was found guilty in a trial by a jury. Proceedings were suspended and probation was granted. Defendant appeals from the order denying his motion for a new trial.

Appellant contends that the court erred in refusing to give certain instructions requested by him.

The theory of the defense was that appellant was intoxicated and did not knowingly participate in the act. Two police officers arrested defendants about 3:20 a.m. on January 24,1952, in a room in a Turkish bathhouse. According to the testimony of the officers, there was no light in the room when they entered; they directed the beams of their flashlights on the bed, and for approximately 10 seconds they observed an act, which was in violation of section 288a, being committed by Guthrie on the- person of appellant, who was lying on the bed; the only clothing on appellant was a shirt; one of the officers turned the ceiling light on, and then the appellant sat up in bed. One of the officers testified that during the 10 seconds he did not see appellant’s face, did not know whether appellant was asleep or awake, and that appellant made no movement until the light went on; he (officer) asked appellant why he did not push the other fellow away, and appellant replied, “Well, I just didn’t”; appellant walked from the room to the office and got his clothes, and then he returned to the room and dressed. The officers testified further that appellant’s walk and speech seemed normal; his eyes were bloodshot; the officers were of the opinion that appellant had been drinking but he was not under the influence of intoxicating liquor.

Appellant testified that he had been drinking at a nearby café on the night of January 23d; he was drunk and he did not remember leaving the café or going to the bathhouse; he remembered someone telling him to get off the street; the next thing he remembered was the bright light of a flashlight in his face; he got up and the officers said that they (appellant and Guthrie) were under arrest; he did not recall any of the conversation with the officer (at the bathhouse) ; he remembered going down some steps and riding in a police ear; Guthrie was sitting next to him in the police car, and that was the first time he had ever seen Guthrie.