People v. Terry

PEEK, J.

By an information defendant was charged with violation of section 288 of the Penal Code. Following his plea of not guilty the cause proceeded to trial before the court sitting without a jury. At the conclusion thereof defendant was found guilty and was sentenced to imprisonment for the term prescribed by law. He now appeals from said judgment of conviction.

Resolving, as we must, all conflicts in the evidence in favor of respondent and indulging in all reasonable and legitimate inferences in favor of respondent, the record may be summarized as follows:

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Prior to the alleged offense the complaining witness, who was 8 years of age, and her brother, aged 5, visited the defendant at a cabin which was located only a few feet from the home of a great-annt where the children were staying. As they stood outside the cabin the defendant, grabbing the prosecutrix by the hand, took her inside the cabin where he committed the acts constituting the basis of the charge. Her testimony concerning what occurred outside the cabin and her actions upon leaving were corroborated by her 5-year-old brother. Immediate complaint was made by her to her aunt and to her parents when they arrived home some time later. The defendant, when confronted by the child’s parents and her aunt, denied he had molested the child. Testifying in his own behalf he gave testimony wholly different from that of the complaining witness and in addition stated that his first knowledge of any complaint was when he was accosted by the children’s aunt and their parents. On cross-examination he admitted to a degree some of the acts as charged. However, on redirect examination he stated that in his conversation with the police he had told them the same story he told in court but when a detective threatened him he changed his story, and that on the morning of his preliminary examination he had refused to sign a statement presented to him by the chief of police on the ground it was not true. Subsequently the testimony of the police officer as to the purported admissions and confessions of the- defendant was stricken from the record.

We find no merit in any of the numerous contentions appellant has now raised on appeal.

He first contends that the committing magistrate failed to inform him of the charge and of his right to counsel. The record of the preliminary examination was not introduced in evidence at the time of the trial or is it now before this court. Moreover no objection upon this ground was raised by defendant’s counsel at the time of the trial in the superior court. Furthermore it appears from a purported quotation from the transcript of the preliminary examination, contained in defendant’s brief, that the court informed defendant . . of his rights ...” that he was “entitled to be represented by an attorney,” that he indicated “he didn’t want to have an attorney,” but that nevertheless “the defendant is entitled to the services of an attorney and even though it inconveniences the court to continue it the continuance will be