People v. Rinaldi

KOFORD, P. J.

Appellant was convicted of lewd and lascivious acts upon the body of a girl, Anna, who at that time was just under twelve years of age. The information charged the offense as occurring on or about January 14, 1927. No opening statement was made. The child was called to the stand as the first witness and after a few preliminary questions she was asked when was the last time that defendant had done anything to her. She first answered in the basement in January, 1927, and upon further questioning said that defendant had done nothing at that time. This testimony evidently referred to a time when her mother came into the basement and called her away, January 21, 1927. Then, after considerable questioning, her further answers disclosed that in December, 1926, in the basement of their house, defendant had committed acts which at most amounted to indecent exposure. She was then asked if anything happened after that time. She answered yes, in the house in the bedroom. When asked what happened in the bedroom, appellant’s counsel objected upon the ground that by offering the evidence which had already been admitted the district attorney had elected or at least the law had elected for him to rely upon the offense testified to as occurring in the basement in December. Thereupon the court asked the district attorney what act he elected and the district attorney replied that he was relying on an act that happened in the bedroom some time after Christmas, on or about January 14, 1927. The court then overruled the objection directing that the evidence be confined to the act elected until established before offering testimony of similar acts.

It is claimed that it was error for the court to allow the district attorney to elect a different offense than the one concerning which testimony was first offered because it is said that by the first evidence offered an election was made. Authorities are cited by appellant in support of the necessity of making an early election and in support of the contention that in the absence of a timely election the first offense proven is deemed to have been elected; but it is only

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by specious argument that these principles are made to appear applicable to the facts of this case. Here the election was promptly made upon the first objection and almost at the beginning of the direct testimony of the first witness, so that appellant was in no way misled. It amounted to no more than a variation in the order of proof. The evidence was ultimately admissible. This first evidence of defendant’s misconduct came in as a result of the difficulty of getting the child’s mind directed to the particular time and place of the crime relied upon without asking leading questions. We see no merit in this point and it is especially true that the defendant was not prejudiced by the ruling nor by the fact that evidence of this misconduct preceded the proof of the particular crime relied upon for conviction.