People v. Cogar

PIERCE, J.

This is an appeal from an order denying a motion for a new trial and from a judgment entered upon a jury’s verdict which found appellant guilty of violation of Penal Code section 261, subdivision 1 (statutory rape), violation of Penal Code section 286 (sodomy) and violation of Penal Code section 288 (child molestation). Appellant, however, limits his argument to the alleged insufficiency of the evidence to support the verdict on the counts charging sodomy and child molestation. Our review of the record convinces us the evidence was abundantly sufficient on all three counts.

The victim is the 12-year-old stepdaughter of appellant. She testified to a total of 20 acts of sexual intercourse with appellant, the first of which she stated was with the approval of her mother. (The evidence indicates other acts also.) Five of these acts, she said, had occurred in Hornbrook, Siskiyou County, the county of venue. She testified to other incidents in Yreka when she voluntarily would go into the front room of the home and get into bed with her stepfather.

One act, the next to the last apparently, occurred in the family home in September 1961, commencing with an act of normal intercourse, but climaxed by the act of sodomy.

Appellant admitted this act of sexual intercourse both in testifying in his own behalf at the trial and in a statement previously given to a police officer. He fixed the approximate date as being three weeks before he was arrested. This is the act relied upon to prove the count of statutory rape.

A physician, Dr. Martin, who had examined the child Octo

[511]

her 3, 1961, found sperm in her vaginal tract, indicating an act of sexual intercourse within two or three days before the date of his examination. The child denied any act of sexual intercourse other than with appellant.

Appellant in testifying denied the act of sodomy, but admitted he had confessed to the act to Undersheriff James Berrian, his statement having been taken by a stenographic reporter and transcribed. It was read in evidence. In the statement appellant described the act in detail without any leading whatever by the questioning officer. Appellant’s explanation at the trial of the assertedly erroneous self-accusation was that when the transcript of the statement was read back to him: “I was mixed up and I didn’t have my glasses with me, and I couldn’t hardly read the stuff.”