People v. Clark

ADAMS, P. J.

Clark was charged by information with a violation of section 288 of the Penal Code committed upon a girl aged 7 years “on or about” July 15, 1950. He was convicted by a jury. His appeal is from the judgment that followed, and an order denying a new trial.

Grounds relied upon by appellant are that the court erred in permitting the district attorney to make what appellant refers to as three opening statements; that the district attorney was guilty of prejudicial misconduct in his statements

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to the jury; that the court admitted irrelevant evidence, which was of an inflammatory nature; that the evidence was insufficient to sustain the conviction; and that the court erred in ruling on objections to the cross-examination of defendant’s character witness.

The evidence establishes that defendant, who was a dining car waiter, rented a room in the home of the parents of the child, whom he had known for several years. He occupied one of two bedrooms, while the girl Kathryn and her parents occupied the other when they were all at home. The mother was employed in Placerville and came home on weekends. The father was also employed, as a redcap, and left home at 5 a. m. each day, returning at 1 or 2 o’clock in the afternoon. For a time the child, Kathryn, was with her aunt in San Mateo, but from July 9th to 15th was left in the home of her parents, as defendant had a layover that week and asked that he be permitted to keep the child at her home. On July 15th, as the father was not returning home, he telephoned to one of his wife’s sisters, Mrs. Jordan, who lived near, to take care of the child that night. This she agreed to do, and, upon giving the child a bath that evening, found a “terrible looking yellow substance” on her panties. She immediately made an appointment with a doctor to whom she took Kathryn the following morning. He found that the child had a yellowish-brown discharge, concluded that she was infected with gonorrhea, and treated her with penicillin which brought about a cessation of the discharge. He testified that his estimate of the time of exposure of the child to gonorrhea was three or-four days, and possibly as little as two days. A physical examination of Clark on July 19th established that he, too, had gonorrhea. At the trial Kathryn testified that on the mornings that she was left alone in the house with Clark he got into bed with her, pulled down her pajamas and “bothered” her; that he touched her private parts with his, and with his mouth, which made her feel “funny”; and that he told her not to tell. An examination of several pairs of the child’s pajamas and panties revealed stains similar to those found on the panties worn by her on July 15th. Similar stains were found on underwear in defendant’s closet.