People v. Smith

HAHN, J.,

pro

tem.

Defendant appeals from a judgment of conviction of the crime denounced by section 288a of the

[346]

Penal Code of the state of California, with which he was charged by an information filed by the district attorney of Ventura County. The victim of the alleged unlawful conduct of the defendant was a lad of the age of seven years.

The grounds upon which the appellant urges a reversal of the judgment are, stated in brief, as follows:

1st. The alleged “confession” of Smith was not voluntary and should not have been admitted in evidence.

2d. The district attorney was guilty of misconduct highly prejudicial to the defendant.

3d. The trial court erred in ruling on the admission of evidence.

We do not deem it necessary to present a recital of the evidence relating to the offense, or the detailed testimony bearing on the question as to whether or not the confession was voluntary. We have carefully examined the voluminous transcript of the evidence adduced at the trial, and have concluded that there are no reversible errors appearing in the record. We will therefore briefly refer to such matters which we feel should be discussed in this opinion.

The defendant testified that while he was incarcerated in the city jail after his arrest, the father of the boy, who was the chief of police of the city of Oxnard, and in whose custody the defendant then was, promised he would not prosecute him for the offense if he would admit that he “did it.” Defendant also testified as to certain acts of physical violence visited upon him by the father of the boy and one of the police officers at the time of his arrest, and also while incarcerated in the city jail, which acts of violence so instilled him with fear as to induce him to make the alleged confession. The promises of immunity, as well as all of the acts of violence, except the attack made upon the defendant by the chief of police in the home of the chief of police prior to or at the time of defendant’s arrest, were all specifically denied by the chief of police and other police officers and persons present at the time the certain incidents were alleged to have occurred. All this evidence was presented before the jury, who were properly instructed by the court as to their power in weighing the evidence and determining whether or not the confession was made without any promises of immunity and voluntarily made without threat or duress. This court cannot, under the circumstances, disturb