People v. Garrow

FLEMING, J.

Gerald Edward Garrow was convicted of lewd .conduct with a child (Pen. Code, § 288) and of burglary in the first degree (Pen. Code, § 459), and sentenced to prison on the burglary conviction. He has appealed from a denial of his motion for a new trial, but since that is not an appealable order (Pen. Code, § 1237), we have treated his appeal as one from the judgment.

(People

v. Nunn, 223 Cal.App.2d 658, 659, n. 1 [35 Cal.Rptr. 884].)

Defendant's contentions on appeal are that statements by him after his arrest were received in evidence without a proper hearing on voluntariness, and without a showing that at the time of their making he had been advised of his constitutional rights.

Facts

On February 14, 1964, Debra Ann, a 9-year-old child, returned home from school during the noon hour because she had forgotten her lunch money. Her house was locked, and she was unable to find the key normally concealed in the back yard. After a period of indecision she saw Garrow in the fropt yard, who offered to help her get into the house. Garrow opened a sliding window at the back of the house, and Debra climbed in through the window. Calling through the window, Garrow asked.Debra for a glass of water. She opened a sliding glass door, and he entered the house, drank the glass of water,

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put his hand over Debra’s mouth, pushed her into the bedroom, opened a pocket knife, and commanded Debra to take her clothes off. After she complied, he molested her sexually, tied her up, and left the premises.

Within a few minutes Debra made her way to a neighbor’s house, and the police were summoned. After she gave the police a description of her assailant, Garrow was picked up about 1:15 p.m. 2 blocks from the scene of the attack. He said he was a magazine salesman and had been soliciting in the area during the morning. He denied approaching or entering Debra’s house. Garrow was returned to the scene, and Debra asked to identify him, which she did. He was then arrested and taken to the sheriff’s station.

Considerable technical evidence was introduced against Gar-row at the trial. A police technician testified that fingerprints on the sliding door at the rear of the house were Garrow’s. Dog hairs on Garrow’s clothing were similar to hairs from the dog in the house. Red and blue fibers from Garrow’s jacket were similar to fibers removed from the surface of the bed in the bedroom. Garrow’s knife blade had deposits of copper, synthetic fiber, and plastic, similar to the composition of a telephone wire which had been cut at the scene of the crime.