People v. Adams

THOMPSON, J.

The defendant was convicted on three counts under section 288 of the Penal Code, of lascivious conduct toward three minor girls. From this judgment and the order denying motion for new trial he has appealed. It is contended the evidence fails to support the several verdicts which were returned as to each count, and that the court erred in refusing to give an instruction which was based on the provisions of section 288a of the Penal Code.

The evidence adequately supports the judgment of conviction of the first and second counts of the information. There is satisfactory evidence of the defendant’s lascivious conduct toward each of the girls involved in these first two

[745]

counts. These girls were respectively nine and ten years of age, and possessed ordinary intelligence. Their testimony does not appear to have been unreasonable nor to have been prompted by anyone. Under three counts the defendant was found guilty of similar lewd acts toward the three little girls on different occasions within the period of a few days, perpetrated by the defendant in the course of the playing of games of hide-and-seek. The stories of these girls are similar and are without substantial conflict. There can be little doubt of the intention with which these acts were performed for the reason that each of the girls testified to at least two different occasions when the defendant exercised improper conduct toward each of them. The testimony of one infant child of alleged licentious acts, perpetrated on one occasion, and given under circumstances indicating that she had been prompted by her parents or teacher or others, might be subject to doubt, particularly if the story is inherently improbable. But when three children testify to similar acts on different occasions, and there is no indication that their stories have been prompted by others, the evidence of intentional lewd conduct is very convincing. Moreover, there are some corroborating circumstances in the present case. The defendant was fifty-four years of age. His wife and children lived in Nevada. For about six months prior to the alleged offenses he was living in the household of Mr. and Mrs. Hittenberger in Sacramento. The improper conduct occurred in the Hittenberger home while the owners thereof were absent. Nor were the Hittenberger children present on any of these occasions. The three children who were involved in these affairs were induced to play hide-and-seek with the defendant in and about the Hittenberger home when the owners were absent. The income of Mr. Adams was very slight. He had no means with which to bring his family from Nevada, yet he admitted unusual interest in these three girls by taking them to the state fair and spending some $14 for their entertainment. He was seen by the teacher of one of the girls in their company at the fair. This led to an investigation and to his subsequent arrest. The effort of the defendant to establish a former good reputation was a failure. While both Mr. and Mrs. Hittenberger testified that he had always treated their children with due consideration, neither of them had