People v. King

[308]

ST. SURE, J.

Defendant was charged and convicted of the crime defined in section 288 of the Penal Code. He appeals from the judgment and from an order denying his motion for a new trial. He contends that the evidence is insufficient to warrant the verdict and also that the trial court committed error in failing to make more specific an instruction given on a certain point of law.

The victim of defendant’s alleged assault was a girl six years of age. The story of the offense was told by Thomas Murphy, a police officer, who was on duty in the old fair grounds, San Francisco. While walking through the high weeds he saw the little girl lying on the ground and the defendant apparently lying over her. He grabbed the defendant and pulled him over. Defendant’s pants were down, his privates were exposed, and the child was lying on her back, her coveralls were down over her feet and her flesh exposed. “I asked him why he should be guilty of such a crime,” testified the officer. “He said his only excuse was he had been drinking moonshine.”

It is argued, on behalf of defendant, that the evidence does not support the allegations of the information, in that it cannot be inferred from the evidence that “the defendant placed his hands and private parts upon and against the body and legs and private parts of the child.” The facts in the instant case are somewhat similar to those in

People

v.

Dong Pok Yip,

164 Cal. 143 [127 Pac. 1031]. There, as here, the testimony revealed the fact that the defendant had first secured the confidence of the child, whom he led to a secluded place such as would be selected for the commission of the crime charged; that he had induced or placed the child in a position and he himself had assumed an attitude which clearly indicated his indecent purpose; that he exposed his own person, and that the child’s clothing had been disarranged in a manner which comported with the theory of the prosecution regarding the defendant’s guilt. All of this, coupled with the lack of consent on the part of the little child, was sufficient to support a verdict of guilty. (See, also, the case of