
    [Crim. No. 460.
    Second Appellate District.
    February 7, 1916.]
    THE PEOPLE, Respondent, v. WILSON P. HARLAN, Appellant.
    Criminal Law—Sexual Offenses—Evidence—Proof of Similar Offenses.—In eases involving sexual offenses, such as adultery, rape, and the commission of lewd and lascivious acts upon the body of a child, evidence of similar offenses committed between the parties, both prior and subsequent to that with which a defendant is charged, may, if not too remote, be introduced after the prosecution has selected some particular act of a date certain, and has elected. to rely on proof of such act for a conviction of the defendant, and has introduced evidence tending to support the selection.
    Id.—Commission of Lewd Act upon Child—Similar Offenses— Prejudicial Error.—In a prosecution for the commission of a lewd and lascivious act upon the body of a girl twelve years of age, it is error to permit the state to offer evidence as to acts constituting a similar offense alleged to have been committed on a date subsequent to that alleged in the information, where there was not at the time of the introduction of such evidence any evidence whatever adduced tending to show the commission of the offense alleged in the information.
    Id.—Time of Election of Offenses.—In a prosecution where the district attorney is at liberty to prove one of several different offenses under the indictment, he should, at least as early as the commencement of the trial, inform the defense upon proof of what specific offense he intends to rely, and if he does not, the first evidence which would tend in any degree to prove an offense shall be deemed a selection, and unless the precise offense is proven, the defendant is entitled to an acquittal.
    Id.—Evidence Showing Commission of Other Offenses—Purpose— Erroneous Instruction.—An instruction advising the jury that other lewd and lascivious acts had been shown by the evidence to have been committed by the defendant, and that such evidence was introduced for the purpose of proving the illicit relations of the defendant with the prosecuting witness, is error.
    APPEAL from a judgment of the Superior Court of Imperial County, and from an order denying a new trial. Franklin J. Cole, Judge.
    The facts are stated in the opinion of the court.
    H. L. Welch, and Duke Stone, for Appellant.
    U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General, for Respondent.
   SHAW, J.

Defendant was, by information filed charging him therewith, convicted of the offense defined in section 288 of the Penal Code and sentenced to prison for a term of five years.

He prosecutes this appeal from the judgment and order of court denying his motion for a new trial.

As stated in the information, the act constituting the crime occurred on April 3,1915. As usual in such cases, the verdict is based upon the uncorroborated testimony of the prosecutrix, a girl twelve years of age, who was the step-daughter of defendant.

Notwithstanding defendánt was charged with an alleged act committed on April 3d, the district attorney, as he might do, in presenting the case first proved the commission of a similar act claimed to have been committed on April 17th. After presenting in full detail the occurrences of April 17th, he then directed the attention of the witness to alleged acts of defendant constituting the same offense committed on April 3d; whereupon defendant’s counsel demanded that the district attorney make an election as to which particular act (that committed on April 3d or that committed on April 17th) he relied upon for a conviction of defendant, to which the trial judge replied: “I don’t consider that it is necessary to, under the information on file, make any election as to the different offenses, if more than one was committed there.” Therefore, however, and after much colloquy between counsel and the court, all in the presence of the jury, the court made a ruling stating: “It will be necessary to proceed to prove the corpus delicti in regard to the alleged offense that occurred on the third day of April,” but overruled defendant’s motion to strike out all evidence as to the offense alleged to have been committed on April 17th, proof of which, as stated, had theretofore been made. The prosecution then proceeded to question the witness as to what occurred on April 3d, the answers to which tended to prove the commission of the crime alleged as of that date; and also offered evidence as to several other acts alleged to have been committed with her by defendant. After completing the examination of the prosecutrix, and with all this evidence as to the several offenses before the jury, the district attorney then stated that he elected to rely for the conviction of defendant upon the evidence touching the commission of the offense on April 3d. In cases involving sexual offenses, such as adultery, rape, and the offense with which defendant is charged, the law seems to be well settled that evidence of similar offenses committed between the parties, both prior and subsequent to that with which a defendant is charged, may, if not too remote, be introduced. But, as stated in People v. Koller, 142 Cal. 621, [76 Pac. 500], “they are never admissible as independent substantive offenses, upon any of which a conviction can be had, and evidence of them is only admissible after the prosecution has selected some particular act of a date certain, and has elected to rely on proof of such act for a conviction of the defendant, and has introduced evidence tending to support the selection (Italics ours.) Measured by this rule, it was clearly error for the court to permit the prosecution to offer evidence as to acts constituting a similar offense alleged to have been committed on April 17th, as corroborating proof of the offense with which defendant was charged as having committed on April 3d, there being at the time no evidence whatever adduced tending to prove the commission of such last mentioned offense ; and hence it was likewise error for the court to deny the motion made by defendant that such evidence be stricken out. In People v. Williams, 133 Cal. 165, [65 Pac. 323], Justice Temple of the supreme court, in discussing a question similar to that here involved, said: “I think the prosecuting officer, when he commences the trial of a case of this class, where he is at liberty to prove one of several different offenses under the indictment, should, at least as early as the commencement of the trial, inform the defense upon proof of what specific offense he intends to rely, and if he does not, the first evidence which would tend in any degree to prove an offense shall be deemed a selection, and unless that precise offense is proven, the defendant is entitled to an acquittal.” Applying this rule, the prosecution should be deemed to have selected the act claimed, as shown by the prosecutrix, to have been committed April 17th, as that upon which to rely for a conviction of defendant. However this may be, it was at least but fair to the defendant, since the district attorney, notwithstanding the date specified in the information, might have selected either the alleged act committed on April 17th or that committed on April 3d, in proof of both of which he offered evidence, that the court should, at the stage of the proceedings when demanded by defendant, have required the prosecution to make an election between said acts.

The court stated to the jury in one of the instructions given, that “evidence of other acts of lewd' and lascivious conduct of the defendant toward-, prior to and subsequent to t'he acts relied upon for a conviction herein, have been shown in evidence. This evidence is introduced for the purpose of proving the illicit relations of the defendant with-, and the lewd and lascivious disposition of the defendant, and his proneness to commit a crime of the particular nature involved.” The effect of the first part of this instruction was for the court to invade the province of the jury by stating

that other lewd and lascivious acts had been shown by the evidence to have been committed by defendant, and this, notwithstanding the fact that her uncorroborated statements with reference thereto were denied by defendant. It was for the jury, not the court, to determine whether or not such alleged facts had been shown by the evidence. Moreover, the evidence was not introduced for the purpose, as stated, of proving illicit relations of the defendant with-, but merely to show, if it did show, a disposition and tendency on his part to commit lascivious acts with the'prosecutrix, thus rendering it probable that he had, on April 3d, committed the offense with which he was charged, and for no other purpose. (People v. Mathews, 139 Cal. 527, [73 Pac. 416].) While these errors may he technical, nevertheless, considering the entire evidence, together with the fact that at least a part of the uncorroborated story of the prosecutrix seems incredible, we are of the opinion that they are not mitigated by section iy2 of article VI of the constitution.

The judgment and order are, therefore, reversed.

Conrey, P. J., and James, J., concurred.  