People v. Delgado

JAMES, J.

Defendant, after conviction of the crime described in section 288 of the Penal Code, appeals from a judg

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ment of imprisonment and an order denying his motion for a new trial.

The evidence offered on behalf of the prosecution was as to its most material part furnished by a little girl eight years of age. She testified that on the seventeenth day of February, 1918, she entered a picture theater in the city of Hanford and took a seat well toward the front of the room; that in the seat next to her was the defendant, a young Mexican, whom she had never seen before to her knowledge; that defendant offered her five cents and told her to get some popcorn, but that she did not do this; that defendant offered her ten cents, but did not present it to her; that he gave her another ten-cent piece and took that away, then “half a dollar or a dollar” and took that away; that- when he proffered her the first ten cents he said, “if you will give me a kiss”; that thereafter he moved over toward her, placed his hand under her dress and placed one of her hands in his lap under his hat and upon his private organs. The little girl further testified that she took her hand away “about a minute after,” and that upon going out of the theater she told her mother, who in turn told the father. The evidence was further that on a Sunday, two weeks later, she went to the theater with her mother and father, the latter being determined to trap the man if he should again approach the child. The mother and father took seats toward the rear of the room and the child went to the front and sat down. Soon the same man came and sat beside her and began to talk to her; whereupon an officer was called, who placed him under arrest. Throughout the early part of her testimony the little girl had referred in positive terms to the defendant as being the man who had committed the lewd act on the seventeenth day of February. Toward 'the conclusion of her testimony she was asked by the district attorney whether she was sure that the defendant was the same man who molested her on the 17th of February, and the following dialogue thereupon occurred : “A. I am almost sure, because he offered me money. Q. Are you not positive? A. I am almost sure. Q. You are almost sure? A. Yes, sir. Q. Are you sure that it is the same man that came in the second time when they arrested him? A. I am almost sure. Q. Well, are you just as sure it was the same man they arrested on the second Sunday as you are that it was the same man you saw there on the 17th ?