People v. Ewing

TYLER, P. J.

The defendant was charged with the offense denounced by section 288 of the Penal Code, it being alleged that he committed certain lewd and lascivious acts •upon the body of one Plorence Wells, a female child of the age of six years. He was tried and convicted. Motion for a new trial was made and denied, and this is an appeal from the judgment and from the order denying the motion.

It is contended that there is no evidence in the record tending to show the commission of the crime charged or of any other crime, except the unsworn and hearsay declaration of the prosecutrix, who was not permitted to testify at the trial, she having been held incompetent after an exhaustive examination by the trial judge by reason of her inability to receive just impressions of facts or to relate them truly.

A_t the outset it may be said that there is no direct evidence of the commission of the offense. Rigorous proof, however, of the

corpus delicti

in cases of this character is sometimes unattainable, and it is not necessary that the offense should be proved by direct and positive testimony. Such crimes are committed in secrecy, and tribunals must often act upon such indications of an offense as the surrounding circumstances present. All that is required in the proof of these charges is that the

corpus delicti

be proved beyond a reasonable doubt; that the evidence may be merely circumstantial is immaterial.

The evidence in the ease may be summarized as follows: Agnes Wells, the mother of the prosecutrix, testified in substance that on the afternoon of the day when the offense is alleged to have been committed her little girl had gone out to play. Directly across the street from the Wells home was situated a private garage occupied by defendant. Mrs. Wells had occasion to call her daughter, and after some delay the child emerged from the garage, where the defendant at that time was working, and crossed the street to her home in response to her mother’s call. About the same time

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the defendant came out through a side door of the garage into a passageway leading thereto. As soon as the child reached her mother she was taken into the house and given a spanking, after which she was asked by her mother what defendant had done to her, and she replied that he had kissed her. Thereupon Mrs. Wells went to the front door and called defendant and upbraided him for his conduct, and informed him that when her husband came home she was going to have him thrash defendant. The mother then reentered her home. At the same time defendant crossed the street and, opening the door of the Wells home, followed Mrs. Wells down the'hall, who thereupon accused him of having “a bad name for handling little children,” to which the defendant answered, “Don’t tell my mother what I have done. I was only kissing your little girl and fooling around her.” Mrs. Wells then ordered defendant out of her house and took her daughter into a back room and further questioned her concerning the acts of defendant; the child replied that he had unbuttoned her underwear and inserted his finger in her private parts. The mother then made an examination of the clothing and person of her child, and found several spots upon her dress and undergarments. The spots were wet and white in color. She also examined the vaginal regions of the child and found them to be red and inflamed, and a woman neighbor, who was present at the examination, also testified to this abnormal condition. About this time the-defendant again entered Mrs. Wells’ home and asked her forgiveness, and stated to her, “It is bad but not as bad as you think it is.” This statement was also made in the presence of the witness last referred to. The record further shows that the child was examined by a physician, who found the same inflamed condition testified to hy the mother.