People v. Pollock

DORAN, J.

Appellant was charged by information with the violation of section 288 of the Penal Code and was convicted by the court, sitting without a jury. Appellant admitted a prior conviction of violation of the same section, for which he served a term of imprisonment in the State Prison. This appeal is taken from the judgment of conviction and from the order denying appellant’s motion for a new trial.

The prosecutrix is a nine year old girl. She testified that on the afternoon of February IS, 1943, she. accompanied appellant to his room in an apartment house and that appellant there pulled down her pants and placed his private parts “beside” hers. The testimony also clearly permits an inference that appellant then had a seminal emission in the presence of the child, catching the fluid in his handkerchief. Appellant was arrested in his room on the evening of the same day and the arresting officer testified at the trial. Appellant’s only defense appears to be that he was so drunk he did not remember what happened on the afternoon in question. Appellant testified in effect that he remembered being in his apartment or elsewhere up until about' noon and going out to eat about that time and that he remembered nothing more until he was awakened in his room by the arresting officers that night.

The sole ground of appeal is that the judgment is contrary to the law and the evidence. Appellant contends that the evidence fails to show satisfactorily that he touched the prosecutrix and in that connection attempts to stress certain testimony of the prosecutrix as to the distance she stood from appellant when the acts in question were said to have-been committed, which testimony, appellant argues, is “potent evidence that in truth and in fact she was not touched.” There is, however, testimony on the part of prosecutrix of equal or of even greater potency that she was in very close proximity to appellant when the alleged acts were committed. The question was one for the determination of the trial court in judging the facts of the case. It is not necessary to decide here whether the crime denounced by section 288 of the Penal Code is complete without any actual physical contact. In considering the evidence of the removal or pulling down of the

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child’s underclothing by appellant reference may be had to