People v. McCullough

[388]

YORK, P. J.

Appellant was charged in counts I and II of an indictment filed by the district attorney with violations of section 288 of the Penal Code on or about June 17, 1939, and in count III thereof with the crime of rape committed on or about July 1, 1939. Count I was dismissed upon motion of the district attorney and the information amended by changing the numbers of the remaining counts to I and II instead of II and III.

This is an appeal from the judgment of conviction rendered pursuant to the jury’s verdict finding appellant guilty as charged in both counts of the information as amended, as well as an appeal from the order by which his motion for a new trial was denied.

A reversal is urged primarily upon the ground of the insufficiency of the evidence to support the verdict, and a review of the record sustains such contention.

The testimony of the prosecutrix (a seven-year-old girl), which was elicited from her in answer to interrogatories both leading and suggestive to a marked degree, reveals that she lived at a certain address in Inglewood; that appellant lived on the same street two or three houses removed; that she had visited appellant’s home on a number of occasions prior to the time when the acts complained of were committed. She testified upon direct examination that the alleged act of rape occurred on the bed in a bedroom of appellant’s home quite a long time before the 4th of July, and that two or three days prior thereto, the alleged act in violation of section 288 of the Penal Code took place in appellant’s garage. However, from the testimony of prosecutrix on cross-examination, it appeared that the alleged act of rape took place on Saturday night, July 1, 1939. Prosecutrix was impeached by statements which she made at the preliminary hearing as to the manner in which the act of rape was accomplished. She further testified that she made no outcry at the time, nor complaint thereafter, but immediately afterward she went home and played “Chinese Puzzles’’ with her cousin, played out of doors with neighborhood boys and girls and later that same evening went back to appellant’s home accompanied by her brother, when she talked to Mrs. McCullough but did not see appellant.

[389]