People v. Galeno

THE COURT. By an information filed in the Superior Court of Alameda County the defendant was charged with four violations of section 286 of the Penal Code, which punishes as a penal offense the infamous crime against nature.

The information contained four counts, the first three of them charging the act to have been committed with one Terrence Mullin, and the fourth specifying one Robert Edmundson as the participant. He was found guilty on counts 1 and 2; on count 3 he was convicted of an attempt to commit the offense, and, following the court’s instructions, was acquitted on the fourth count on the ground that Edmundson was an accomplice and his testimony incriminating the defendant was not corroborated. The defendant was sentenced to imprisonment on each of counts 1, 2 and 3, the terms to run concurrently. He appeals from the judgment, and makes two contentions, viz., that Terrence Mullin, the complaining witness, who testified in detail as to the occurrences in which he took part, and whose testimony was uncontradicted, was an accomplice, and, second, being an accomplice, the necessary corroboration of his testimony was not forthcoming.

As we are of the opinion that the testimony offered and received in corroboration was abundantly sufficient for its purpose it will not be necessary to consider or decide whether appellant’s first point is well taken.

The evidence in the ease shows that along in the middle of December, 1936, Terrence Mullin, then between 13 and 14 years of age, was engaged evenings in selling newspapers in the vicinity of Fortieth Street and San Pablo Avenue, Emeryville. On or about the 15th of that month the appellant, at about 7 or 8 o’clock in the evening, accosted Mullin and suggested that if he would go home with him he would give him some money. Mullin replied that he could not go until he had finished his newspaper selling, which would be about midnight. Appellant returned at that time and the two repaired to a dwelling house in which the former roomed and went to his bedroom. They were let into the house by one Lee Carpenter, who as a witness so testified. Mullin gave evidence as to what occurred in the room, and from it it is clear that the conduct forbidden by the section of the Penal [16]Code above referred to was engaged in. About the same hour on the following evening appellant again sought Mullin at Fortieth Street and San Pablo Avenue, and the proceeding of the previous evening was repeated. Again, two nights later, Mullin accompanied appellant to his room; and the evidence as to what occurred on this occasion shows but an unsuccessful attempt to commit the same offense. On each occasion appellant gave to Mullin a small sum of money.