People v. Campbell

KINCAID, J. pro tem.

Appeal is taken by the defendant from the judgment and the order of the trial court denying his motion for a new trial following his conviction after trial by court of the offense of violation of section 288 of the Penal Code. No judgment was pronounced and probation was granted. The order appealed from and the judgment of conviction are attacked solely on the ground of the insufficiency of the evidence based upon the contention that the testimony of the complaining witness, a 9-year-old girl, is inherently improbable and not entitled to the credence necessary to uphold the conviction.

It seems unnecessary to render a detailed recital of the evidence in the case, it being sufficient to say that there is ample direct evidence to show the commission of acts by defendant on the person of the complaining witness falling within the provisions of section 288, Penal Code, which, if not incredible, furnish adequate support for the judgment and order denying new trial. There is no material disparity in the testimony of the complaining witness and the defendant as to the circumstances and incidents leading up to the acts complained of. Such evidence discloses that they were left alone together for some 12 or 13 minutes, they danced together, and were together at the davenport thereafter. Defendant concedes that the child was close to and directly in front of him while he was seated on the davenport, that she put her arms around his neck and he asked her if that was the way she hugged her boy

friend;

that she started hugging him a little harder at which, time he leaned back, throwing her off balance and causing her to fall over him on the davenport ; he lost his cigarette and in reaching for it bent Ms head

[800]

down into contact with her legs. The complaining witness stated that the acts occurred by use of force upon her. Defendant argues that her testimony was not only inherently improbable but that the commission by him of the acts of which complaint is made was physically impossible.

Corroboration of the child’s testimony is not a prerequisite to a finding of guilt.

(People

v.

Carlson,