People v. Milo

WHITE, J.

In an information filed by the District Attorney of Los Angeles County, defendant was accused of the crime of violation of section 288a of the Penal Code in that he participated in the act of copulating with his mouth the penis of a 15-year-old boy. The information also charged the defendant with a prior conviction of a felony in the State of Oregon, for which it was alleged he served a term of imprisonment in the state prison.

The defendant pleaded not guilty, denied the prior conviction, waived a jury, and trial was had before the court, resulting in his being found guilty of the offense charged and that the prior conviction charged against him was true. From the judgment of conviction defendant prosecutes this appeal.

At the trial the boy testified that he met the defendant “out on the street right in front of the bus station” as he was about to board a bus in the city of Los Angeles to return to his home in Kingsburg, California. That the defendant took hold of his arm, saying, “You had better come with me”; that they walked along together for a few minutes when they came to a bridge, at which point the defendant “threw me down”

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upon the ground. That thereupon defendant started to “bother me,” placing his hands upon the body and penis of the boy.

As to what then transpired, the witness testified as follows:

‘ ‘ Q. Did he put your penis in his mouth ? A. Yes.

‘ ‘ Q. Inside, is that right

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A. Almost.

“Q. What do you mean ‘.almost’ ? A. He started to.

“Q. Well, did any part of your penis get past his lips, inside of his mouth? A. No.

“Q. Did his lips get around the top of your penis? A. Yes, at one time.”

That at this time a policeman arrived on the scene.

Police Officer J. P. Turner testified that about 8:30 or 8:45 o’clock on the evening in question, with the aid of his automobile lights he saw the defendant and the boy at a viaduct located near the Pacific Electric bus terminal in the city of Los Angeles. That when he came upon them the boy was “lying on his back on the bridge timbers, that is the base of the viaduct, near the ground. His pants were down around his knees and the defendant was sitting crossways on the bridge timbers with his head down between the Sewell boy’s legs and as the lights of our car hit him I observed that the defendant had Sewell’s penis in his mouth and as soon as the lights hit him why they both jumped up and started pulling their pants up. The defendant’s pants were also down.”