People v. Hicks

SHINN, J. Appellant was charged with two offenses of violation of section 288 of the Penal Code, one against a 10-year-old girl, Marilyn, and the other against a 10-year-old girl, Rebecca. In a trial before the court he was acquitted upon the first count and convicted upon the second. The arguments presented in his behalf upon the appeal from the judgment are (1) insufficiency of the evidence; (2) error in receipt in evidence of the testimony given by Marilyn at the preliminary examination; (3) questioning of the defendant and the admission in evidence of the testimony of a police officer-which, it is claimed, tended to show that the child Rebecca had indirectly accused defendant of a third offense against her 8-year-old sister, Ramona.

The evidence was sufficient to support the judgment. Defendant owned a small house in San Pedro which he oecu[144]pied with another man; the two owned a trailer which stood beside the house, and which was rented to and occupied by two women. Nearby was a pony track frequented by children. A short time before the Sunday when the offenses were alleged to have been committed, the three little girls came to defendant’s house with the parents of Rebecca. Defendant on that day gave the children 25 cents with which to buy fruit and they returned to his house with cherries. He took the little girls into his bedroom to show them a small Victrola. On Sunday, June 3, the three girls came to his house, asked him for money and he gave them 50 cents to pay for pony rides. They later returned, asked for more money, and he gave Rebecca a dollar. Later Rebecca returned asked for more money, which, according to one of defendant’s witnesses, was given to her and, according to defendant, was refused. Upon several of these occasions Rebecca, without invitation from defendant, sat upon his lap. Marilyn, upon his invitation, also sat upon his lap. During the afternoon and while the children were about the house, defendant had guests, consisting of a man and his wife and baby, and after they left a sailor, and two women. After the latter left, according to the testimony of Marilyn, the three girls were in the bedroom and defendant then gave Rebecca money for a pony ride. The alleged offense against Marilyn, according to her testimony, was committed upon defendant’s bed and consisted of defendant’s fondling her person under her clothing. Her testimony was substantially corroborated by that of the third child, Ramona, 8 years of age, who testified that at the time of the occurrence she was standing in the room. It was also corroborated by the testimony of Rebecca that she returned to .the house, looked through the window and saw defendant on the bed with Marilyn.