People v. Hubbard

VAN DYKE, P. J. Appellant was convicted after a trial by jury of four counts of incest. He appeals from the judgment entered. He also purports to appeal from an order denying his motion for a new trial. The record discloses that no such motion was made. Therefore, the purported appeal therefrom is hereby dismissed.

Count One of the information accused appellant of incest with his daughter Alice on or about September 28, 1953, and Count Four charged him with a similar act with Alice on or about September 1, 1953. Count Two accused him of a similar act with his daughter Carolyn on or about September 22, 1953, and Count Three accused him of a similar act with Carolyn on or about September 10, 1953. At the time the acts were alleged to have occurred Carolyn was 20, Alice was 16.

On October 16, 1953, appellant entered a plea of not guilty on all four counts. His trial was set for December 7, 1953. He was released on bail. He failed to appear on the trial date, and his bail was forfeited. On March 18, 1955, he was apprehended and committed to jail to await trial. On March 25, 1955, he appeared in court and was informed of his legal rights. He waived counsel. Trial was set for May 2d, with the jury to be selected on April 22d. When the court convened for the purpose of selecting a jury, appellant was again advised of his legal rights and informed that he might give a list of the names and addresses of any persons he might desire to have subpoenaed as witnesses to the clerk. Thereafter, the case was called for trial as set. Appellant was not represented by counsel and acted in his own behalf. He was convicted as stated, and judgment was pronounced that he be confined for the term prescribed by law on each of the four counts, and that the four sentences were to run consecutively. Counsel was appointed by this court to represent appellant on his appeal and has filed briefs in support of various contentions advanced.

Alice lived with appellant and her stepmother at Willits in Mendocino County. She testified that she had sexual intercourse with her father over a course of several years and until he was charged with incest; that she had sexual intercourse with her father on September 28, 1953, which was the day her father was arrested and which was one of the days counted upon by the People in the accusation; and that she had engaged in a similar act abput a month previously, which would be about September 1, 1953, as charged. Carolyn testified that she came to live with her father and [126]stepmother in January of 1953 and that her father commenced having relations with her about four months after she arrived. She also said she had sexual intercourse with him about a week before she made the complaint against him, that is, about September 22, 1953; and about September 10, 1953. Both girls testified that they were made to watch while their father had intercourse with the other, and that these acts occurred during the Easter vacation while their stepmother was away. The stepmother testified that appellant often slept with Alice. Appellant took the stand in his own behalf and did not expressly by his testimony deny that he committed the acts with which he was charged.