People v. Kearney

THE COURT.

In an information filed by the District Attorney of Los Angeles County the defendant Kearney was charged in separate counts with (1) violation of section 288 of the Penal Code, on March 22, 1941, (2) violation of the same statute, on March 13, 1941, and (3) rape, committed on the latter date. In each instance the alleged victim was a ten-year-old girl. Prior to submission of the case the third count (rape) was dismissed upon motion of the district attorney. The jury found defendant guilty on the remaining two counts charging violation of section 288,

supra.

Upon motion a new trial was granted, however, on count one. Judgment was entered on count two sentencing defendant to the state penitentiary, but execution thereof was suspended and defendant has been placed on probation for a period of five years upon condition that he spend one year thereof in the county jail, the court recommending that the year be served on the honor farm. This is an appeal from the judgment and the order denying a new trial on count two.

Defendant urges that the story related by the prosecutrix “is so inherently improbable” as to require a reversal of the judgment. Examination of the record refutes the contention. Minor inaccuracies and uncertainties in the testimony of the prosecutrix do not serve to destroy her credibility as a witness or render her story unbelievable. On the contrary, a reading of the record indicates that a child of such tender years could have related the story with such detail and consistency only if she had actually undergone an impressionable experience such as that narrated by the prosecutrix and which led to defendant’s conviction on count two. In our narrative we shall refer only to those portions of the testimony addressed to the latter count, for there is nothing so inherently improbable about any portion of the story of the prosecutrix, regardless of the count to which it. is addressed, that would tend to suggest improbability as to the part relating to count two, upon which defendant stands convicted. We turn now to the evidence addressed to the latter count.

The prosecutrix lived with her parents in property belong

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ing to defendant and situated across the street from defendant’s home. On the afternoon of March 13, 1941, the mother of the prosecutrix and the wife of defendant were engaged in a telephone conversation, during the course of which it was mutually agreed that the prosecutrix might visit with the Kearneys as had been her custom on prior occasions. According to the prosecutrix, she arrived at defendant’s home shortly after 1:00 p.m., at which time the defendant was in the kitchen. Defendant’s wife was also present. The wife and prosecutrix read a newspaper together in the kitchen. Shortly thereafter, a woman called and defendant’s wife accompanied her into the living room and closed the door, leaving prosecutrix and defendant alone in the kitchen. After a brief conversation with the prosecutrix, defendant opened the door that leads to the bathroom and then perpetrated an act, detailed by her, that unquestionably constituted a violation of section 288,