People v. Owen

California Court of Appeal Mar 30, 1945 No. Crim. 2331Published

Before: Ward

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Holding. The court held that the evidence was sufficient to support a conviction for lewd and lascivious conduct under Penal Code section 288 and that the trial court did not err in its evidentiary rulings or its instructions regarding the defendant's failure to testify.

Issues

Whether the evidence was sufficient to support a conviction for lewd and lascivious conduct.
Whether evidence of the defendant's conduct on prior visits was admissible to show intent and disposition.
Whether the trial court's instruction regarding the defendant's failure to testify was proper.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is not the accomplishment but the intent of the party that is the basis of the commission of the acts condemned in Penal Code, section 288.”

“Evidence tending to show intent may be introduced, as in this case, by reference to the conduct of the defendant on other recent visits of the same children.”

“The trial judge did no more than inform the jury of the right given them by the Constitution, that is, he told them that they were entitled to consider defendant’s failure to testify, not that they must do so.”

WARD, J.

This is an appeal from a judgment and order denying a motion for a new trial following defendant’s conviction by a jury of lewd and lascivious conduct as set forth in Penal Code, section 288.

The complainant, a female child of the age of eleven years, and her sister, aged ten, visited defendant’s “shack” in the city of Richmond on an afternoon in the early part of July, 1944, upon the invitation of two girl friends to “play house.” The defendant worked nights and slept in the daytime. On the occasion of their first visit, the defendant asked the sisters to sit on the bed with him, gave the older a drink of wine, and put his arms around the younger and felt her legs. Upon the discovery of a flea bite, which had begun “to be a big sore,” on her buttock, he treated it with mercurochrome and applied a tape. As the children were leaving defendant told them to take some money that was on his dresser and to come again. When the children returned the next day, they again sat on the bed with defendant. At this time he put his arms

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around the younger child and kissed her. Again he gave them money. Upon their third visit, the children sat on the bed with him, and after fondling the older child, defendant succeeded in getting her under the covers with him, used cold cream on parts of her body and committed acts with intent as outlined in section 288. The child became frightened and said she had to go home. Again, upon his suggestion, the children took money from the top of the dresser and were invited to return. The mother of the children learned of the source of the money.

On appeal defendant argues that the evidence was insufficient to support the verdict. He states- that the contact, if any, between himself and the child “was but for a fleeting moment,’’ and that had he intended to gratify his lust or passions or those of the child, he would not have desisted when she expressed a desire to go home. To support his theory that this evidence is insufficient defendant cites

People

Angier,

44 Cal.App.2d 417 [112 P.2d 659], Unless the facts in all essential details are identical the Angier case is not a precedent that need be followed in every case involving sex perversion or lascivious conduct with children. (Pen. Code, §§ 288, 288a.) The facts in the present case differ materially, both in the nature of the offense committed and in the series of acts preliminary thereto.

People v. Owen

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WARD, J.

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