People v. Huston

McCOMB, J.

Defendant was convicted after trial by jury of violating section 288 of the Penal Code. This appeal is from the judgment and order denying his motion for a new trial.

The evidence being viewed most favorably to the people (respondent), the essential facts are:

In the spring of 1940 defendant on two separate occasions committed an act prohibited by section 288 of the Penal Code, to wit: He kissed the private parts of the prosecuting witness, a female of almost twelve years of age.

Defendant took the witness stand and specifically denied having committed any of the acts charged against him.

Defendant relies for reversal of the judgment, among others, on the following proposition:

The trial court committed prejudicial error in receiving the following evidence of defendant’s conduct on occasions when the prosecuting witness was not present:

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(a) Testimony of a child other than the prosecuting witness that as a forfeit for a game which he played with her she was required to kiss him;

(l) Testimony of a child other than the prosecuting witness as follows:

“A. He said, ‘Aren’t you cold?’ and I said, ‘Yes.’ And he said, ‘Well, what have you got on?’ 1 said, ‘I just have my unionsuit and dress.’ And he said, ‘What is your union-suit like?’ And I said, ‘It is like panties and a shirt, like.’ And lie said, ‘Let me see them.’ I said, ‘No.’ He told me to let him see them three times, and I said, ‘No’, and then I walked off.

“Q. Where did this happen?

“A. In the filling station.”

This proposition is tenable. The law is established in California that, in a prosecution for committing lewd and lascivious acts prohibited by section 288 of the Penal Code, evidence that defendant has perpetrated similar acts with a person or persons other than the prosecuting witness is inadmissible and, if received, is prejudicial error

(People