People v. Garrett

PLUMMER, J.

The defendant in this action was tried upon an information containing two counts. Count 1 charged the commission of an offense prohibited by section 288 of the Penal Code. Count 2 charged the commission of an offense described in section 288 (a) of the Penal Code.

The defendant was convicted upon count 1, and found not guilty on count 2. From the order of the court denying his motion for new trial as to count 1, and the judgment of conviction entered on the verdict of guilty of said count, this appeal is prosecuted.

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During the course of the trial the defendant submitted to the court ten different proposals of instructions, only one of which was given. The prosecution submitted some fifteen or seventeen proposed instructions, which were given by the court. We have carefully examined the instructions, both given and refused, and with the exception of proposed instruction No. 4, presented by the defendant, we are of the opinion that the instructions given at the request of the People properly presented to the jury all of the directions necessary for their guidance in considering the testimony in the case. Proposed instruction No. 4, submitted by the defendant, was and is what is called a “cautionary” instruction. Nothing of the kind was given in this case. The child involved in this action was only ten years of age. The offense is alleged to have been committed in broad daylight, in a room where the doors were open, and in a house occupied by other people. All the testimony in the transcript has been carefully read and there is not a scintilla of corroborative evidence contained therein. There is considerable testimony indicating the previous good character of the defendant, some testimony indicating that the child in question was not wholly reliable.

During the course of the trial the child was placed on the stand in the forenoon and denied the commission of any offense prohibited by section 288,

supra.

After the noon adjournment the child was again placed upon the stand, and the following testimony was submitted:

“Q. Now, Yvonne, you testified this morning concerning the time that you were in Mr. Garrett’s room after June 11th, the day school was out. A. Yes. Q. Do you remember that? A. Yes. Q. Now, I want you to think of that time right now, and I will ask you this question: Did Mr. Garrett ever place his hands upon you at that time? A. Yes. Q. And where? A. In his room. Q. And where on you? A. My private parts. Q. And what did he do? ... Q. Now, what did he do with his hands? A. Just rubbed me. Q. Just rubbed you, did he? And this was at that time in his room, is that correct? A. Yes. Q. Now, you didn’t testify that this morning, did you? A. No. Q. And why was that? A. Well, I guess I was scared because I thought my father and mother would be here, and they weren’t. Q. You thought your father and mother would be here, is that right? A. Yes.