People v. Smith

FOURT, J.

In an information in two counts, the defendant was charged in count I with unlawfully committing a lewd and lascivious act upon the body of a 5-year-old female child. In count II, the defendant was charged with a similar act as to the same child. The defendant pleaded not guilty and waived a jury trial. The court found him guilty as to the charge set forth in count II, and not guilty as to the charge set forth in count I. Three doctors were appointed by the court, under the provisions of section 5504, Welfare and Institutions Code, and the defendant was committed to

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Atascadero State Hospital for observation and diagnosis for a period of not to exceed 90 days. He was found to be not a sexual psychopath.

A motion for a new trial was denied. Imposition of sentence was suspended and defendant was granted five years probation upon specified conditions. The defendant now appeals from the order granting probation, and from the order denying his motion for a new trial.

The child, age 5, lived with her mother and father (defendant herein). No useful purpose would be served by relating all of the testimony or the substance of the testimony in this particular case. Suffice it to say that the evidence does disclose, among other things, that the defendant caused the child to pursue a vulgar and inexcusable course of conduct with reference to his private parts. The defendant told the child that the matter was a secret and that she should not tell her mother, but the child, in any event, did relate the story to her mother.

The child’s mother had put the youngster to bed about 9 o’clock p.m., on the date in question, and while the mother was in the living room, at about midnight, the child called for her to come to the bedroom. The child then complained to her mother about what had occurred. The defendant was “passed out” in the bedroom, and the mother went to a telephone in a market about two blocks away, and called one Betty Luttrell, and then returned to the apartment. About 5 o’clock a.m., Mrs. Smith asked the appellant if what the child had stated or complained of was true, and he answered, “If it is, I don’t remember.” The mother contacted the police shortly thereafter.

On February 22, 1957, at a police station, the appellant made some statements to the police. A policewoman who was there at the time testified in part as follows: