People v. Karpinski

WHITE, J. In an information filed by the district attorney, defendant was accused of three felonies. Count 1 charged violation of section 288 of the Penal Code; count 2 set forth a violation of section 286 of the Penal Code; while count 3 alleged an attempt by defendant to commit the act charged in count 2. During the progress of the trial count 3 was dismissed on motion of the district attorney. By its verdicts the jury found defendant guilty as charged in counts 1 and 2. From the judgments of conviction and the order denying his motion for a new trial defendant prosecutes this appeal.

Stating the evidence in the light most favorable to the prosecution, as we are required to do following verdicts of guilty, we find in the record testimony that on Sunday evening, June 16, 1940, defendant accosted the complainant, a schoolboy nine years of age, while the latter was walking alongside defendant on Main Street. At this time defendant asked the boy if he wanted a hot dog. Upon receiving an acquiescent answer, defendant purchased a hot dog and a glass of root beer for the boy, after which he took him to his hotel. Upon arrival at his room, appellant removed the boy’s trousers and placed him face down over the edge of the bed, whereupon, according to the facts testified to by the [547]victim, the defendant committed upon him the infamous crime against nature.

After admonishing the boy not to say anything to anybody, defendant gave him a dollar in change. The boy went home, and the next day at school the teacher made inquiry concerning his possession of the money, whereupon the boy told her of the manner in which he had obtained it. When police officers came to the school, the boy led them to appellant’s room. After sending the boy away, the officers waited for the return of appellant, and about 11:30 that night observed him coming up the stairs of the rooming house with another young boy directly behind him. After arresting the defendant, the officers searched him and found a tube of vaseline, part of which had been removed. The tube of vaseline was introduced in evidence and was identified by the boy as being similar to that which the defendant had in his possession and used at the time of the alleged assault. In response to interrogatories propounded by the officers, defendant stated that on the day in question he had gone to a picnic where he had been drinking all day; that in the early evening after leaving the picnic he went to Chinatown, where he consumed more liquor and became very much intoxicated, and did not remember anything more. He stated to the officers that he did not remember doing anything to any boy in his room, because he was too drunk. When asked by the officers why he had a boy with him at the time of his arrest defendant stated that he was taking the boy to his room to give him a book or magazine. At the trial defendant produced two witnesses who stated that he was at the picnic in question and was last seen about 6 o’clock in Chinatown and that he appeared to have been drinking quite a bit. Testifying in his own behalf, the defendant denied having had the complainant or any other boy in his room on the night in question. He testified that after coming from the picnic he did some drinking in Chinatown and in another bar, and then went home and to bed about 9 o’clock that evening. In explanation of his possession of the vaseline, he said he used it for cuts on his fingers in his work as a metal polisher and also upon his hair and scalp.