People v. Angier

MOORE, P. J.

Appellant was accused by information with a violation of section 288a of the Penal Code. He was tried by the court without a jury, was convicted and sentenced to San Quentin penitentiary. He appeals from the judgment of conviction and from an order denying his motion for a new trial. He maintains that the verdict and decision are contrary to law and against the evidence.

Abbreviating the lengthy and conflicting stories told by two little girls aged seven and five, whom we shall refer to as AC

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and YZ, it is sufficient to recite that they resided in the vicinity of appellant’s home and often played around his door; that appellant had a solarium above his garage which was reached by climbing a ladder and through an opening; that about the 30th day of July, 1940, the two children accompanied by AC’s sister entered the solarium to play. At the same time appellant was at work in the machine shop of one Johnson, whose premises adjoined those of appellant. The children soon became noisy at their play, whereupon appellant twice left his work, proceeded to the garage, climbed the ladder and requested them to leave. The testimony of AC is that upon appellant’s third call he stayed but a minute and that he “licked” her “potty” once as she stood near the aperture through which he projected his head in order to communicate with them. YZ testified in substance that appellant “kissed” AC’s “pee-wee”. AC’s younger sister, aged five, was definitely present on the first two calls made by appellant to the solarium but she was not called to the witness stand. There is no testimony that at any time did appellant enter into the sunroom where the children were at play. At each call he merely stood on the ladder so that his eyes were on a level with the solarium floor. The only proof of a copulation is contained in the foregoing, except that when asked as to the location of her “potty” AC pointed, whereupon the district attorney stated: “She is indicating the crotch”.

Appellant predicates his appeal upon the claim that the evidence is inadequate to uphold the conviction. He inveighs lengthily against the alleged inconsistencies and discrepancies in the testimonies of the two little girls. But these vices are such as naturally would occur in the narratives of little children concerning a sudden occurrence. However, in view of our construction of the statute the judgment should not prevail.