People v. Irish

SCHOTTKY, J. pro tem. The appellant was charged with a violation of sections 288a and 207 of the Penal Code. Following his plea of not guilty a jury returned a verdict of guilty on both charges. Judgment was entered, the sentences to run concurrently. This appeal is from the verdict, the [448]judgment, an order denying a motion for a new trial and an order denying probation.

Appellant makes two main contentions: (1) That the evidence is insufficient to sustain the verdicts and judgment; and (2) that the district attorney was guilty of prejudicial misconduct.

A brief summary of the evidence as shown by the record is as follows:

The complaining witness is a girl, 16 years of age, who resides in Samoa, Humboldt County. The alleged assault upon her occurred on February 11, 1951. On that day, a Sunday, she and her two brothers and a neighbor boy came to Eureka on the afternoon boat to attend a movie. After the movie it was necessary to wait for approximately one hour for the boat on the return trip home. During this interval the complaining witness had some coffee at Hineh’s restaurant, met some girl friends, and circulated around the town. During the course of her travels a girl friend introduced her to appellant Irish. She missed the 5 o’clock boat, and returned to Hinch’s restaurant. The appellant and some boys joined her there. Her brothers returned home on the 5 o’clock boat.

As to events following, the complaining witness testified that she left Hinch’s, unaccompanied, for the boat dock some five blocks away; that as she arrived at the dock the boatman hollered “All aboard”; that appellant came up behind her and hollered “No,” stating to her that he had a knife and if she knew what was good for her she would keep walking and keep her mouth shut; that he walked behind her and alongside her to Mom’s Café; that she did not see the knife but felt something in her back; that appellant unlocked the door of the café, and at this point she tried to scream, but appellant clamped his hand over her mouth and pushed her inside; that she told appellant her mother was expecting her, and the appellant had her call home and inform her mother that she was going to a party; that her mother refused to give permission; that appellant then had her call and inform her mother that she had missed the boat, and on this call the mother consented to her going to the party, but told her to be home by 9 o’clock; that appellant then informed her that it was all a joke, and some of the kids would arrive in a few minutes for a party; that appellant offered her cigarettes and liquor; that she refused them and appellant spilled a drink on her suit; that appellant went around the counter