People v. McFadden

KAUFMAN, P. J. Philip C. McFadden, in propria persona, appeals from a judgment rendered on a jury verdict finding him guilty of a violation of section 288a of the Penal Code, and from the order denying his motion for a new trial. The chief contentions on appeal relate to the sufficiency of the evidence, the admission of certain evidence, the competency of appellant’s attorney, and the instructions to the jury.

The appellant also raises certain objections relating to his treatment prior to the preliminary hearing and the regularity thereof. However, since the appellant failed to move to dismiss the information, these matters have been waived and cannot be raised on this appeal (Pen. Code, §§ 995, 996). The appellant also raises some extraneous matters relating to the voir dire examination of the jurors. How[214]ever, he did not request the inclusion of this portion of the proceedings in the record on appeal and it cannot be considered on this appeal.

Appellant’s major argument is that the evidence does not support the verdict and judgment. We do not deem it necessary to describe the facts in detail. Upon a careful scrutiny of the record, we think there is no question that the evidence is more than ample to sustain the finding of the jury.

Appellant’s argument is directed chiefly at the admission of the testimony of the eyewitness Poitras given at the preliminary hearing. The victim, a 15-year-old boy, testified at the trial that the offense occurred on March 31, 1960, when he spent the night in the appellant’s room and that Poitras was in the room the entire time but never touched him. Poitras testified at the preliminary examination that during the entire evening and night, he was present; first he sat in a chair beside the bed drinking and dozing; later he joined the appellant and the boy in the bed; he neither encouraged nor participated in any of the acts which took place. The appellant admitted being in the room with the boy all night, but denied doing anything to the boy and stated that Poitras was the perpetrator of the crime.

Poitras was served with a subpoena (on Monday, June 6, 1960) but did not appear at the trial which began on Thursday, June 9, 1960. The district attorney then instituted an immediate and conscientious investigation of the locations and establishments frequently visited by Poitras. Finally, over the objection of appellant’s counsel at the trial, the transcript of the above mentioned testimony at the preliminary hearing was read into evidence, including the cross-examination by appellant’s counsel. Section 686 of the Penal Code governs the admissibility of prior testimony where the witness is unavailable. The section provides: