People v. Smith

GRIFFIN, Acting P. J. Defendant was charged in one count of the information with committing incest with his daughter, Carolyn (aged 15) on August 31, 1955, in violation of section 285 of the Penal Code. And in count two he was charged with having committed lewd and lascivious acts with another daughter Linda (aged 13) on October 7, 1955, in yiolation of section 288 of the Penal Code. Defendant pleaded not guilty and waived a jury trial. He was found not guilty on count one, and guilty on count two. The court ordered a psychiatric examination of defendant and found he was not [746]a sexual psychopath. Defendant moved for a new trial and it was denied. He was sentenced to state’s prison, execution was suspended, and he was placed on probation for three years. This appeal followed.

The points raised are that the court erred in the reception of certain evidence; that the evidence was inshfficient to sustain the findings and that the court erred in not granting a new trial for these reasons.

Linda, in support of count two, testified generally that she lived with her father in Colton after her stepmother had left him; that on the weekend of October 7th to 9th she was at home alone with him and he asked her to bring him a drink to his bedroom where he was lying on the bed partially undressed; that subsequently he took off part of her clothing and started massaging her breasts and “sort of making love” to her by kissing her breasts and putting his arms around her; that he had done these things to her before and on one occasion came close to having sexual intercourse with her. She also testified that on one occasion she walked in on him when he was doing the same thing to her sister Carolyn.

The testimony of the prosecuting witness, given at the preliminary examination, was somewhat in conflict with her testimony at the trial in reference to the date and time of this claimed affair. She testified she subsequently reported these incidents to others because she was tired of living that kind of a life. She testified that when quite young she lived with her own mother and father in a nudist camp due to her mother’s poor health and before she died.

A girl friend of Carolyn’s, aged 15, then testified in chief for the prosecution that in October, 1955, she stayed all night at defendant’s home with Carolyn; that defendant fixed them a vodka drink; that she and Carolyn put on their robes and that defendant then told Carolyn to go in the bedroom and he would massage her legs because she was tired; that Carolyn did so and she followed her to the bedroom while defendant massaged Carolyn’s legs and body and suggested to the witness that he do the same for her; that she was on the bed and he pulled up her robe from the bottom, massaged her legs, and then unhooked her “bra”; that he started rubbing her back and then her breasts and she was told by him that it would develop her; that he suggested she come over often and have it done; that she then told him she had enough and accordingly went to her room to bed; that defendant thought they should be massaged again the next morning but they