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District Court of Appeal, Second District, Division 1, California.


Cr. 3525.

Decided: March 18, 1942

Gladys Towles Root and Eugene V. McPherson, both of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Bayard Rhone, Deputy Atty. Gen., for respondent.

Appellant was charged in an information with a violation of section 288 of the Penal Code. He was arraigned on May 22, 1941, entered his plea of “not guilty” to the charge and trial was set for August 5th. On June 6th, he moved to strike the information under section 995 of the Penal Code “on account of the insufficiency of the preliminary transcript.” On June 11th such motion was denied and an amended information was filed adding count 2 charging “contributing to delinquency, a misdemeanor,” whereupon appellant was rearraigned and entered his plea of “not guilty, as charged in each count of the amended information.”

The jury returned its verdict finding appellant guilty of a violation of section 288 of the Penal Code, as charged in count 1 of the amended information, and “not guilty” of contributing, as charged in count 2 thereof. Thereafter, appellant's motions for new trial and in arrest of judgment, as well as his application for probation, were denied, sentence was pronounced and judgment of conviction was entered.

This appeal is taken from the judgment of conviction and from the order by which appellant's motion for a new trial was denied.

It is contended by appellant that while the complaining witness, who was a boy twelve years of age, testified at the preliminary hearing that his private parts had been touched by appellant, his testimony clearly showed that he did not understand the meaning of the words “private parts,” and therefore it was an abuse of discretion on the part of the trial court to deny appellant's motion to strike the information under section 995 of the Penal Code. It is further contended that the evidence is insufficient to support the verdict for the reason that it shows at most a mere casual touching of the boy while riding in appellant's automobile, and that the testimony of the boy given at the trial is glaringly inconsistent with that given by him at the preliminary hearing with regard to the number of times he was touched by appellant, these varying from four to ten times.

From the testimony of the complaining witness given at the preliminary examination, a transcript of which is before this court, it appears that he met appellant in Westlake Park in the City of Los Angeles on Wednesday of Holy Week in 1941, which was April 9th; that appellant asked him if he would like a job distributing bills and he said that he would. Appellant thereupon told him to be at the park the next morning at 10 o'clock. They met at the time and place agreed upon, the complaining witness testifying that appellant told him that “we should go now, because he (appellant) said he had to go home and change clothes and then he had to go to the printer's to get the bills because they weren't ready * * * so he went and got in his car and went to his house. * * * Well, we got out of the car and went up into his apartment, and he got––he changed clothes. And on the way over to his house, that is, he kept feeling my private parts.” When asked “Where are your private parts?” the boy indicated the front of his crotch and the rear and stated that appellant “kept feeling me here (indicating) and between the crotch (indicating).” In answer to the question, “Will you tell us now, Harry, just what part of your body this defendant touched in the apartment when you said he felt you?” the boy replied, “my private parts.” On cross–examination, the attorney for the defense questioned the boy with regard to how many times appellant “placed his hand upon, touched or patted the boy's leg,” the words “private parts” not being used by said attorney during this examination of the boy. After appellant and the boy left the apartment, the latter testified “we walked down the hall and opened the front door and then he went to the car, and I said, ‘Get another boy. I'm just through with you’.” The boy immediately proceeded to his home and reported the incident to his mother.

At the trial of appellant in the Superior Court, the complaining witness testified that after they got in the automobile appellant “kept putting his hand on my leg.” At the suggestion of the attorney for the defense, the boy was asked to stand up and show where appellant touched him, at which time the court made the following statement for the record: “Well, that is pretty close to the groin, I would say, on the front of the leg, though, right directly on the front of the leg opposite the groin. That is the left leg.” The witness then testified that appellant touched him more than once during the ride, and when asked to describe how, he replied: “Well, he kept feeling me in the same place, only higher up here more toward the groin. Q. Did he at any time touch your private parts? A. He did.” It further appears that when they reached the apartment, appellant asked the boy if he would like to see his private parts, and the boy told him “No.” Upon cross–examination, the witness testified that appellant touched him only once while they were in the apartment.

The testimony of the complaining witness at the preliminary hearing of appellant, hereinbefore recited, clearly indicates that there was reasonable or probable cause to commit appellant, and that there was no error on the part of the trial court in denying appellant's motion to strike the information under section 995 of the Penal Code.

While it is true that the record discloses some inconsistencies between the testimony given by the complaining witness at the preliminary examination and that given by him during the trial of the cause, nevertheless, the evidence considered as a whole definitely indicated that appellant was guilty of the offense charged against him.

It is further claimed by appellant that the court erred in failing to give the cautionary instruction requested by him, “You are instructed to view with great care and caution the testimony of a child of immature years.”

Subdivision 2 of section 1880, Code of Civil Procedure, provides that children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, cannot be witnesses. The witness in this case was twelve and a half years of age at the time he testified, and he narrated his version of what took place in a clear and concise manner. In view of the record in this case, it cannot be said that the complaining witness was a child of immature years.

Appellant's final point, that the acquittal of the second count of the information constituted an acquittal of count 1, is without merit. Section 954 of the Penal Code provides that “A verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count.” See, also, People v. Stangler, 18 Cal.2d 688, 696, 117 P.2d 321, 325.

For the reasons stated, the judgment and order appealed from are, and each of them is, affirmed.

YORK, Presiding Justice.

DORAN and WHITE, JJ., concurred.

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