People v. Hobbs

JONES, J. pro tem.

The defendant in this action stands charged by an amended information with a violation of section 288 of the Penal Code committed against a 12-year-old school child. He is also charged with prior convictions of grand theft in Missouri and burglary in Idaho. Both prior convictions were admitted but a plea of not guilty was entered

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to the principal charge. The jury returned a verdict of guilty, and defendant has appealed from the judgment and from the order denying his motion for a new trial.

The only ground urged for a reversal of the judgment is that the evidence is insufficient to sustain the verdict. Appellant contends that the acts committed by him do not come within the purview of said section 288 and that no offense was committed.

Section 288 provides that: “Any person who shall wilfully and lewdly commit any

lewd

or

lascivious

act including any of the acts constituting other crimes provided for in part one of this code

upon

or

with

the body, or any part or member thereof, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of

such person

or of

such child

shall be guilty of a felony. ...” (Italics added.)

The act is alleged to have, been committed on the 8th day of June, 1951. The defendant contends that his actions as disclosed by the record were neither lewd nor lascivious, his contention being that at all times he conducted himself only in a fatherly manner toward the child.

On June 8th, he met the girl by appointment in front of a café about one and one-half blocks from her home. According to his version his object was to take her to school. He was driving a yellow pickup truck at the time. Upon meeting him the girl climbed into the cab of the pickup and they drove to a spot about a block from the school where he stopped and parked. He then changed places with her on the seat of the truck. The child testified: “Q. And when the truck was stopped, what happened if anything? A. Well, he started kissing me. Q. And by ‘he’ who do you mean? A. Roy Hobbs. Q. Go ahead. What else happened there? A. Well he just started kissing me and this truck driver came by and he yelled something in the window, and at that time we were laying in the seat. Q. Pardon? A. We were laying in the seat at that time. Q. You say you were laying down in the seat. Do you mean both of you? A. Yes sir. Q. You say some truck driver came by, is that right? -A. Yes sir. Q. And what were you doing during this time ? A. I was kissing him back. ... Q. Do you remember him saying anything to you about loving you or going away with you, while you were on the truck ? A. Yes sir, I do. Q. What did he say, if anything? A. He just told me he loved me, but he didn’t mention anything about running away. Q. He didn’t say anything