People v. McCurdy

HART, J.

The defendant was convicted in the superior court of the county of Sacramento under an information charging him with the commission of lewd and lascivious acts upon and with the body of a female child under the age of fourteen years. (Pen. Code, see. 288.)

He made a motion for a new trial, which was denied, and he prosecutes this appeal from the judgment of conviction and the order denying him a trial

de now.

The sole point upon which the defendant relies for a reversal is that the evidence is insufficient to support the verdict. The specific contention is that, conceding it to be true that the accused did all the acts which the prosecutrix testified that he committed upon her body, such acts were not of a nature to bring the defendant’s conduct in committing them within the purview or the condemnation of section 288 of the Penal Code.

The crime charged was committed in the month of May, 1922, at which time the prosecutrix was approximately two months over the age of thirteen years, and resided in North Sacramento, in Sacramento County. She testified that, on a Saturday early in the month of May, 1922, she was a passenger on the autostage running between the city of Sacramento and North Sacramento, and on her way to her home; that there were in that stage at the same time other passengers, of whom several were women; that the defendant, who then was a perfect stranger to her, boarded the stage near a railroad station known as Ben Ali, and took a seat beside her; that at a point a short distance from Ben Ali the women passengers left the stage, leaving as the only occupants thereof herself and the defendant and another man, whose name it was subsequently learned was J. C. Hombeck; that immediately after the women passengers had left the stage, the defendant placed his hand on her leg and pinched it, or to use her own language: “He pinched it and felt of it.” He continued this conduct until the point was reached where she was to leave the stage; that, as she was

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about to alight from the stage, the defendant preceded her to the ground and took hold of her under the arm, and “lifted” her to the ground; that, after reaching the ground, he held on to her elbow, and, after the stage had gotten a short distance from where they stood, he placed his hands around her and pressed her body to his, at the same time saying to her: “You are just old enough to feel'good, aren’t you?” To this she replied: “ ‘I don’t know,’ and he said he knew.” She testified: “He told me to come up to his place some time and let him feel of my legs and breast, and love me up; and he said I was almost a woman,” all this time still holding her body against his. She stated that when he asked her to “come to his place some time,” he pointed “up the road,” and said that he “lived up there.” She continued: “I pushed away from him, but he just held me deep in his arm, and then when he let me go, why I walked fast until I was out of his sight, and he kept calling up the road to me: ‘Little girl, little girl,’ and before I left, he told me not to tell my mother, and he said: ‘Now, you will come up to my place, now won’t you?’ And I told him I didn’t think I would, and I started away from him, and then I walked along fast until I got off the side, and he kept calling ‘Little girl, little girl’; and after I got on the side I started to run home.”