People v. Spillard

PULLEN, P. J.

Appellant was convicted of violating section 288 of the Penal Code.

The motion for a new trial was denied, and appellant was committed to the state prison for the term prescribed by law. From the order denying the motion for a new trial and from the judgment of conviction defendant prosecuted this appeal.

Briefly the facts are that on a Saturday afternoon, either June 15, or June 22, 1935, the complaining witness, a little

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girl of about ten years of age, with four companions, two girls and two boys, ranging in ages from seven to thirteen years, went to a moving picture theater in Sacramento. They seated themselves in the last tier of seats in the balcony. Shortly after they arrived, according to the testimony of the complaining witness, the defendant, who sometimes acted as a watchman and peace officer for the theater, came into the balcony and seated himself upon the steps in the aisle immediately in front of and below the complaining witness, and there committed the acts charged in the information.

The only witnesses for the prosecution were the complaining witness and one of the boys in the party. The appellant was known to the children, and both of the witnesses for the prosecution testified as to his presence at the theater at the time-in question.

Owing to the fact no complaint was made until approximately two months after the commission of the alleged acts the witnesses are rather vague and uncertain as to the exact date, but it seems to have been quite clearly established that the acts, if committed, occurred on Saturday, June 15th, some time after the hour of 1 o ’clock. The complaining witness testified she left the theater before the film was completed and met her companions outside in the lobby. When asked by the boy who was called as a rebuttal witness, why she went out, she replied, “Mr. Spillard was bothering me.” In some way, not entirely clear in the record, an uncle of the complaining witness heard of the alleged misconduct on the part of Spillard and questioned the girl. She admitted the fact and then told her grandmother and grandfather with whom she was living at the time.

The defense of appellant was that of an alibi. He called two witnesses to establish that on the day and at the time alleged by the complaining witness he was in the theater, he was working on a PWA project. He also called several of his neighbors who testified he was a man of good repute in the community in which he lived.