People v. McBride

YORK, P. J. Defendant was charged in an information filed by the district attorney with a violation of section 288 of the Penal Code committed upon a seven-year-old girl. A jury trial having been duly waived, the court found defendant guilty as charged, denied his application for probation and sentenced him to state prison for the term prescribed by law. From the judgment of conviction which was thereafter entered, defendant prosecutes this appeal on the grounds that (1) the judgment is contrary to the law and the evidence; and (2) the court committed errors of law.

The evidence adduced at the trial herein discloses that on July 3, 1944, the complaining witness, hereinafter referred to as Alberta, was approximately seven and a half years old and resided with her mother and two brothers in the city of Los Angeles; that Bose Marie, aged five, lived next door, and Leah, aged four, lived in the house on the other side of Alberta’s house; that the three children played together often. For a year and a half prior to July, 1944, appellant had lived in a house on the rear of the lot on which Alberta lived, and during July, 1944, he was living there alone. His house contained a bed-living room in which there was a regular bed, a kitchen, a bathroom, a small back room and a screened porch. The three girls often went to appellant’s house to play.

On the day in question, the three girls went into appellant’s house where he was in the kitchen preparing his lunch. While they were there, Alberta’s mother was away from home fifteen minutes or half an hour. During this time, Alberta, who was wearing a- bathing suit, went home to see if her mother had returned and finding her still away, the child returned to appellant’s house, where she saw appellant in bed in the bed-living room under the' covers. The three girls went into the bed-living room and Alberta sat- on the bed. They talked for a while, and then appellant got out from [333]under the covers and lay on top of Alberta, who was then lying on her back on the bed, and put “the thing that a man goes to the bathroom with” between her legs, under the skirt of her bathing suit, but outside the panties thereof. Alberta testified that when appellant did this, Bose Marie and Leah were on the porch, but both girls testified that they were in the bed-living room watching him do it. In Alberta’s presence, appellant then repeated the act with the other two girls. Appellant told the girls not to tell and they left his house together each returning to her own home. Alberta’s mother was not at home when Alberta reached there, but she did return between 2 and 3 o’clock in the afternoon of July 3, 1944, when she discovered Alberta in the bathroom crying, at which time Alberta made a complaint to her regarding the occurrence which took place in appellant’s house.