People v. Bodey

California Court of Appeal Oct 22, 1928 No. Docket No. 1480.Published

Before: Sturtevant

AI Brief

AI-generated · verify before citing

Holding. The court held that the trial court did not err in failing to require an election between multiple acts testified to by the prosecutrix because the acts constituted a single transaction, and that other challenged jury instructions were either correct or non-prejudicial.

Issues

Whether the trial court erred by failing to require the prosecution to elect a specific act when multiple acts were testified to by the victim.
Whether the trial court's jury instructions regarding reasonable doubt and the applicability of instructions were erroneous or prejudicial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Every one of the acts testified to by the prosecutrix was, she testified, committed on the same afternoon, on the same couch, in the same basement, of the same house, by the same person on the same person.”

“The facts showed one transaction and all of the facts recited were of the res gestae.”

“there is nothing in the entire record on which we can base a conclusion that the defendant was in the least prejudiced by the instruction as given.”

[421]

STURTEVANT, J.

The defendant was convicted of violating section 288 of the Penal Code. He made a motion for a new trial, the motion was denied and he has appealed from the order and from the judgment of conviction.

We will discuss all of the points made by the defendant but not in the order stated in his brief.

When instructing the jury the trial court read to it a charge containing nineteen paragraphs. Among others were the following:

XI. “Testimony has been permitted by the court tending to prove other alleged acts of lewd and lascivious conduct of the defendant toward said Eleanor Torosian prior to the alleged act charged in the information. This evidence was permitted to be introduced for the purpose, and only for the purpose of proving lewd and lascivious disposition and tendency of the defendant to commit lewd and lascivious acts. This evidence is not introduced to prove distinct offenses and the defendant is not on trial for any such other alleged acts, other than are set forth in the information.

XII. “If from all the evidence you are satisfied to a moral certainty beyond a reasonable doubt that on or about the first day of May, 1927, in the City and County of San Francisco, the defendant John Ross Bodey did commit lewd and lascivious conduct upon and with the body and members of one Eleanor Torosian, then and there a female child of about ten years of age, as charged in the information, then it is your duty to return a verdict finding the defendant guilty.

XIII. “If from all the evidence you are satisfied to a moral certainty beyond a reasonable doubt that the defendant did not commit the alleged acts charged in the information, then it is your duty to return a verdict finding the defendant not guilty.

XIV. “If from all the evidence you entertain a reasonable doubt whether or not the defendant did commit the alleged acts charged in the information, then it is your duty to return a verdict finding the defendant not guilty.

XVIII. “The fact that the court has instructed you upon certain phrases of law is not to be deemed by you that the court necessarily feels that such instructions are

People v. Bodey

AI Brief

STURTEVANT, J.

More from California Court of Appeal

Related research

AI Brief