People v. Harris

DESMOND, P. J.

A jury found defendant guilty of kidnaping and of violating section 288a of the Penal Code of California. He appeals from the judgment “and from the whole thereof” upon the grounds that the evidence offered at his trial was insufficient to sustain a judgment of eonvie

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tion and that the verdicts rendered by the jury were contrary to law and the evidence.

Examining the transcript we find that an attempt was made by appellant to establish an alibi which would be sufficient to protect him from adverse verdicts on the offenses which, according to the complaining witness, were committed between eight and ten o’clock of the night of August 31, 1943. He was unsuccessful in that attempt, the jury preferring to accept the testimony of the complaining witness, a boy of fifteen years named Henry, and his companion, William, of the same age. It appears from their testimony that they were employed by a catering company in the southern part of Los Angeles, and on the night in question, shortly after eight o ’clock, quitting time, they started to walk north on the west side of Central Avenue. When they arrived near 51st or 52nd Street they were hailed by the appellant who was seated in an automobile on the opposite side of Central Avenue. Both boys described the automobile to the jury as a “four door gray sedan,” Henry later saying that “It was a grayish, real light brown. It looked more like a grayish color, a light tan.” Upon rebuttal he testified that he recognized a car viewed by him in a parking lot during the trial, following testimony of appellant’s sister, Mrs. Murphy, as the same car he was in with the defendant on August 31, 1943. A photograph of this car was introduced in evidence showing it to be a two-door automobile. Mrs. Murphy had testified that it was her automobile, describing it to the jury as a ■ 1937 Pontiac two-door sedan, dark gray in color and carrying license number 67B591. This is the same number which William swore he copied on a piece of newspaper from the license tag of the car in which he saw appellant drive Henry away. He further testified that he showed that number to the police officer and that he saw appellant at the Newton Street police station about two hours later.

Henry testified that in the back of the car in which he was taken away he saw a red pocket handkerchief and a light socket, both of which articles were introduced in evidence. They were later identified by Mrs. Murphy as belonging to her. Toward the close of the trial Henry was asked to explain why he testified that he thought there were four doors on the automobile, and answered: “Because it is a long sedan, and I was riding in the front seat, and there was as much room in the back seat as there was in the front seat, but I never did get out of the back door, and I figured it to