People v. Giminiani

BARNARD, P. J.

The defendant was charged with rape and in second and third counts with violations of section 288 of the Penal Code. He was found guilty on all three counts and has appealed from the judgment and ■ from an order denying his motion for a new trial.

The first two counts involve a 10-year-old girl named Barbara and acts alleged to have taken place on April 13, 1940. The third count involves Barbara’s 8-year-old sister, Patricia, and acts alleged to have taken place on June 22, 1940.

The appellant is a brother of the wife of the next door neighbor of the parents of these two girls. The acts involved in all three counts are claimed to have taken place in a building at the rear of the neighbor’s lot. This building consisted of a two-car garage with two rooms at one end. In front was a wash room containing a laundry tray, and to the rear of that was a storeroom containing a bed. The appellant had often visited his sister’s home and was acquainted with these two girls.

There is evidence that on April 13, 1940, while the appellant and the two girls were in the back yard of his sister’s home, he suggested that they play hide and seek. The younger girl was “it” and was to count to 500 by 5’s while the others hid. Barbara testified that when her sister began to count she went through the wash room into the storeroom and hid behind the bed, that the appellant followed her into that room and lifted her upon the bed, that the acts involved in counts one and two then took place, and that appellant desisted when Patricia entered the wash room.

With reférence to the acts involved in the third count there is evidence that on June 22, 1940, the appellant was at his sister’s home and that his nephew and a brother of the two girls were washing his car. Patricia testified that on this occasion the appellant handed her a chamois and told her to

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wash it, that she went into the wash room and proceeded to wash it at the laundry tray, and that while she was doing this the appellant came in and committed the acts in question.

The appellant first contends that the verdicts are not supported by the evidence. It is virtually conceded that the evidence, if believed, is sufficient but it is argued that portions of the evidence given by the two girls are so inherently improbable that they could not be accepted as true, with the result that there is no substantial evidence to support the verdicts. In each instance, the testimony of the girls is corroborated