People v. Zuccaro

WARD, J.

Appellant was convicted of a felony, to-wit, violation of section 288 of the Penal Code, and, under a second count, with a misdemeanor, violation of section 702 of the Welfare and Institutions Code.

The facts are as follows: On the afternoon of September 1, 1940, while the mother of the child complainant was in Sacramento on a visit, her husband, appellant herein, stepfather of the child, clad only in a bathrobe over his undershirt, placed the child upon a bed, and, after removing her under garments, committed several of the acts denounced and penalized by the above sections of the Penal and the Welfare and Institutions Codes. The little girl testified to the commission of such acts and to her resistance. Appellant was unsuccessful in his obvious purpose.

At the outset it may be well to state that the present attorney for appellant technically neglected to afford his client adequate protection on appeal. The “statement of grounds of appeal” sets forth that appellant relies upon all the evidence in the case, statements, rulings, orders and in

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structions of the court, the report of the probation officer, etc.; it then requests the transcription of the record, but fails to specify “the grounds of the appeal and the points upon which the appellant relies.” (Rule II, sec. 7 of Rules for the Supreme Court and District Courts of Appeal.) Irrespective of such failure, the gravity of the alleged offense, when considered in connection with the main contention on appeal, induces us to give consideration to the appeal.

It is claimed that there was a failure to swear the complaining witness duly or at all. The record shows that “the witness was duly sworn,” and the transcript of evidence discloses that she had a definite recollection of the episode in question and the ability correctly to relate names, dates and details connected therewith. The record further shows that at the time of the trial she was eleven years old, and in a grade in the public school commonly reached at that age; that she attended Sunday school and knew that she should “not bear false witness against” her neighbor, and that she would be “punished if she did not tell the truth.”

Appellant contends that the deputy public defender was derelict in failing to inquire of a child witness called in his behalf whether she was not in the presence of the complainant ‘ ‘ all of the time ’ ’ on the date mentioned, and whether any offense had been committed by appellant. This witness testified that on the afternoon in question, she had played with the complaining witness in the latter’s room; that appellant was “around . . . dressed in his clothes.” While this testimony was favorable to appellant, further examination might have injured rather than benefited his cause.