People v. Manuel

THOMPSON, J.

The defendant was tried by a jury and convicted of lascivious acts upon a 5-year-old child, contrary to the provisions of section 288 of the Penal Code. He contends that the verdict and judgment are not supported by the evidence chiefly because the child was not competent to testify and because her evidence is inherently improbable. He also asserts that the court erred in receiving evidence of defendant’s failure to contradict a charge of guilt which was made within his hearing, and in giving to the jury an instruction on that subject.

The parents of the child lived with their family in the upper story of a cottage on Liberty Island in Solano County. The girl, who was called “Ann,” was 5 years of age, and apparently quite intelligent. The mother was a registered nurse. The father and Joe Jose were engaged with the defendant as partners in a farming enterprise on that island. The family and the other partners ate their meals together in a separate building near by, which was called the “kitchen.” The mother of the child did the cooking for all of them. In the two-story building where the parents lived there were two adjoining rooms on the lower floor. A mere partition of boards separated the two rooms. The defendant and Joe Jose slept in separate beds in one of the rooms on the ground floor. The other room was connected with their bedroom by a door, and was vacant. About 8 o’clock on the evening of May 22, 1948, Ann’s father asked her to go and tell the defendant to come to dinner. The child went to do

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so. After the child had been gone 10 minutes or more, the mother became anxious about her failure to promptly return and went from the kitchen to the defendant’s room in search of her. She found the door locked and she entered the adjoining room through a door from the garage. She found Ann in that vacant room near the door leading to the defendant’s bedroom, which was closed. The child was then putting on her panties. Her undershirt was on, and her sunsuit lay upon the floor. The mother immediately became suspicious and called to the defendant by name. He was then in the adjoining room. He promptly answered her. Within the hearing of the defendant she then asked Ann, “Who took off your clothes?” The child replied, “Isaac did it, Mommy.” The defendant did not deny that statement or reply to that charge. The mother admonished the defendant, and took the child away with her. She discussed the affair with her husband. The child told her parents that the defendant took off her clothes and placed her on a bed in his room and performed the lascivious acts with which he was subsequently charged. The mother, being a registered nurse, examined the child and found that her parts were inflamed. The parents took her to a physician in Rio Vista, who made a physical examination and took a “smear” for analysis. He promptly communicated with the probation officer regarding the affair. He did not testify as a witness at the trial. The following day the parents and the probation officer interviewed the defendant in the presence of the child, and told him exactly what the child had told them regarding his licentious conduct. He was then asked, “Do you think this little girl would tell a lie?” to which inquiry he merely bowed his head and made no reply. It is true that during that conversation the defendant said ‘11 did not do this thing. ’ ’ He said, ‘ ‘ She was the one that touched mine.” But subsequently he wrote a letter to the parents asking them to “Please excuse the thing that I have done.” He then asked them to take pity on him and to settle the matter between themselves and permit the farming partnership business to continue.