People v. Beatty

MOORE, P. J. Defendant appeals from an order denying his motion for a new trial and from two judgments of conviction for violation of sections 288 and 288a of the Penal Code. The sole ground of appeal is the insufficiency of the evidence.

The facts established by the witnesses for the prosecution are as follows: On September 21, 1941, one William Buck-ham, accompanied by his wife and two little girls, and defendant and his two children, visited Elysian Park for a picnic. Before departing for the park both Buckham and defendant imbibed two cans of beer. Upon their arrival at their destination they found it necessary to return some of the beer purchased at a store along the way. Thereupon the entire party entered the automobile. Defendant took his place on the back seat with the two little girls, Irene and Viola Roberts, and his own two sons. He sat next to Irene, a child seven years of age. On the way to the store he put his hand inside her slacks near the groin, and in a whisper asked her if it felt good. On observing such act of defendant Mrs. Buck-ham asked Irene to come over onto the front seat. That the child did so was admitted by defendant.

Upon reaching the store Mr. Buckham entered the establishment. Defendant then told Mrs. Buckham that he was going behind the market to cover a drunk man with some boxes so the police would not catch him. Having remained [260]in the store about thirty minutes, Buekham returned to his ear, from which, after he had changed its position, he and his wife witnessed defendant and the drunk man behind the store engaged in an act forbidden by section 288a. On being called by Buekham, defendant joined the party and they drove home.

As to the violation of section 288, defendant and his thirteen-year-old son gave testimony contradictory to that of the prosecution’s witnesses, from which fact it is contended that such adverse testimony should upset the verdict. However, such contradictions were resolved by the jury against defendant. The reviewing court will not alter or reverse a conviction solely because of contradictory testimony. (People v. Marble, 8 Cal.2d 139, 141 [64 P.2d 135].)

Next it is asserted that a mere licentious act was not sufficient to justify a conviction, citing People v. Stouter, 142 Cal. 146 [75 P. 780] and People v. Grinnell, 9 Cal.App. 238 [98 P. 681]. These authorities are not in the slightest degree applicable. In the Stouter case the child victim testified that defendant did not do the act alleged in the information. The jury, having reported that they could not agree, were then instructed that they might find him guilty of an attempt to commit the crime. Such instruction, given under the circumstances detailed, was held to be a most dangerous interference with the right of a defendant to a fair trial and reversed the conviction of attempt to commit the act. In the Grinnell case the decision determined merely the insufficiency of the indictment for a violation under section 288.