People v. George

CASHIN, J.

Appellant was charged by indictment with the commission of a felony, to wit, violation of section 288 of the Penal Code. He was tried in the superior court of the city and county of San Francisco, convicted, and sentenced to imprisonment in a state prison, and has appealed from the judgment and the order of the court denying his motion for a new trial.

Appellant was accused of lewd and lascivious acts with a six’ year old girl named Etta Peterson. The offense was alleged to have been committed during the afternoon of April 9, 1924, in an outhouse situated on Hale Street, a half block from the residence of Etta Peterson, who resided with her parents, her grandmother Louise Francen, and her sister Annie Peterson, aged four years, on Holyoke Street, in the city of San Francisco. Appellant is a married man and had been residing with his wife and minor child in the city of San Francisco for about four years prior to the alleged offense. During the last two years of that period he had been in the employ of the United States as a mail-carrier, and his route of delivery covered the part of San Francisco in which the Peterson family resided. Previous to his employment by the government he had been in the military service of the United States for two years, having been discharged in 1920, and immediately thereafter married his present wife.

The testimony of the witnesses for the prosecution in its . case in chief—who were Minnie Peterson, the mother; Louise Francen, the grandmother; Katherine Eisenhart, a policewoman connected with the police department of San Francisco, and said Etta Peterson—was, in substance, that on the afternoon of April 9, 1924, Etta Peterson and her sister

[127]

Annie complained to their mother that a man had mistreated Etta that afternoon in an outhouse situated in the yard of an unoccupied^ dwelling-house, by placing his hands on her private parts; that on the Thursday following the mother and grandmother, in the presence of Etta and Annie, upon the arrival of appellant at the Peterson home in the course of his duties, charged the appellant with the offense, and the twq children then identified him as the offender. Appellant denied the charge. Thereafter, on April 12, 1924, the date of the -arrest of appellant, the witness Eisenhart, in the presence of Corporal Maher of the San Francisco police department, the mother, and the two children and appellant, asked the child Etta if appellant was the person who had taken her to the toilet. The child replied “Yes,” to which appellant made no reply. Louise Francen, the grandmother, testified that she visited with the child Annie the place of the alleged offense, and found on the floor a substance which she described as a “muss,” and the mother testified that on the bloomers worn by the child Etta on April 9, 1924, were found on April 10, 1924, certain stains. .No analysis of the substance found was made and no evidence adduced of its character other than as above stated. The child Etta testified, describing acts done by appellant, which, assuming her testimony to be true, constituted an offense under section 288 of the Penal Code; and further testified that after the acts described there remained on the floor of the toilet a substance, which she described. The child Annie was not called as a witness due to the fact of her tender age. No witnesses saw appellant with the children or the children or appellant at the toilet or within the lot in which the toilet is situated. Appellant at the trial denied the offense and called on his own behalf witnesses who testified that his reputation for morality had been good.