People v. Staggs

LILLIE, J.

By information the defendant was accused of having committed a lewd and lascivious act upon the body of his nephew, Craig, a child 9 years old. After a nonjury trial he was found guilty as charged; and his motion for new trial was denied. Following his return from the state hospital where he had been confined for observation as a probable sexual psychopath, defendant’s application for probation was denied and he was sentenced to state’s prison for the prescribed term.

Defendant has appealed from the judgment and order denying his motion for new trial. It is claimed that (1) the evidence is insufficient to support the judgment, (2) reversible error was committed in the admission of certain rebuttal testimony and (3) the court erred in denying a new trial and in refusing to admit the file of defendant’s divorce proceedings into evidence. We find no merit in these contentions.

On the evening in question the child concerned spent the night in appellant’s home. After he had gone to bed, appellant entered the bedroom and told him to disrobe. Acts denounced by sections 288a and 286 of the Penal Code were then committed. The victim’s aunt was in the front room “probably watching T.V.” while the events in question took place. The child subsequently remained in appellant’s house a week or longer; upon return to his home he complained to his mother who notified the police. Upon the trial, the child told of

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similar acts on other occasions, both in the bedroom and in the garage, and once while appellant was driving his car. Appellant’s defense to the principal charge was an alibi— he claimed to have been visiting with a female friend whom he sought out after a quarrel with his wife; later he went to his parking lot and slept in his truck.

„ Appellant challenges the credibility of the victim’s story, pointing to testimony in the record (produced by appellant) that the child’s reputation for veracity was bad; and additionally asserting that the acts as narrated by the child are so bizarre as to be inherently improbable. In this latter regard, he argues that the parties’ physical positions rendered impossible the commission of the acts described. None of these contentions have merit inasmuch as justifiable suspicion or unusual circumstances do not categorize evidence in prosecutions of this character as inherently improbable and unworthy of belief