People v. Murnahan

California Court of Appeal Nov 25, 1916 No. Crim. No. 348.Published

Before: Burnett

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Holding. The court held that the evidence was sufficient to support the conviction, the prosecution was not required to elect between counts under Penal Code section 954, and the trial court did not err in its evidentiary or instructional rulings.

Issues

Whether the evidence was sufficient to support the verdict of lewd and lascivious conduct.
Whether the prosecution was required to elect between different offenses charged in separate counts.
Whether the trial court erred in refusing to strike testimony regarding gifts given to the victim.
Whether the trial court erred in modifying a jury instruction regarding the defendant's testimony.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence is ample to support the verdict.”

“The prosecution is not required to elect between the different offenses or counts set forth in the indictment or information”

“The jury were fully and correctly instructed as to every phase of the case, and there is no doubt the defendant had a fair and impartial trial.”

Synopsis

The facts are stated in the opinion of the court.

[212]

BURNETT, J.

The appeal is from the judgment of conviction on three separate counts for lewd and lascivious conduct with a child of the age of ten years.

We find no merit whatever in the appeal. The evidence is ample to support the verdict. It is true it consists largely of the testimony of the girl herself, and we discover therein nothing incredible or improbable. We do not know of any legal objection to the action of the jury in accepting and basing their verdict upon the child’s recital of the despicable treatment of her by appellant. We forbear to quote her statements as their publication would serve no useful purpose.

The people were not required to make an election. In fact, the information charged that three different offenses were committed at different times on the same day and the evidence supported the averments. The course pursued' was justified by section 954 of the Penal Code as amended in 1915, [Stats. 1915, p. 744], providing that “the indictment or in-, formation may charge two or more different offenses connected together in their commission, ... or two or more different offenses of the same class of crimes or offenses, under separate counts. . . . The prosecution is not required to elect between the different offenses or counts set forth in the indictment or information, but the defendant may be convicted of any number of the offenses charged, and each offense upon which the defendant is convicted must be stated in the verdict.” The election of which appellant speaks is required when one act is charged and evidence is admitted of two or more similar offenses. There was no occasion here for the invocation of such principle.

There was no error in the refusal of the court to strike out the testimony of the girl that “I can’t remember whether he gave me candy or gum.” She was attempting to relate all that occurred between her and appellant at the time of the commission of one of the offenses. Any donation by him would certainly be a significant circumstance tending to indicate appellant’s ulterior purpose. The case of

People

Mathews,

139 Cal. 527, [73 Pac. 416], is entirely different. Therein the defendant was not permitted to show that he made gifts to his victim. The decision was really based upon the ground that it was not proper cross-examination. It was

People v. Murnahan

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Synopsis

BURNETT, J.

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