People v. Bresh

Appellant was charged by an information containing two counts with violations of section 288 of the Penal Code. The jury returned a verdict of guilty as to count I and of not guilty as to count II, and from the judgment which was thereafter entered, this appeal is prosecuted on the grounds that the verdict is contrary to the evidence, and that the court erred in decisions on questions of law arising during the course of the trial.

The record discloses that on the morning of August 6, 1938, two boys, William, aged eleven years, and Fred, aged eight years, were playing on the porch of the apartment house where they lived. Appellant approached the boys and started talking to them about “coins”. He told them he had “a coin in the room and he wanted me (William) to go with him to see it”. Appellant and the two boys went to appellant’s apartment where the crime charged in count I was committed upon the person of William. Shortly thereafter, William complained to his mother with reference to the treatment he had received at appellant’s hands.

Appellant took the witness stand in his own defense and testified that the two boys accosted him on the street and asked him for money to go to a show; that they followed him to his room and returned on another occasion and begged him to give them money; that he saw nothing wrong in the boys being in his room with the door closed, and that he did not touch either boy while they were in his room.

Two defense witnesses testified that the boys were in appellant’s room on two occasions and they heard a boy ask him for money, and that one of these witnesses, who was the manager of the apartment house where appellant lived, ordered the boys off the premises.

In connection with the first point, appellant urges that the testimony of the boy William is so improbable as not to warrant credence, and that the evidence presents a situation where the hypothesis of guilt is greatly outweighed by the hypothesis of innocence.

Appellant admitted that he had been previously convicted of a felony, and also admitted that he had been convicted of a charge involving boys for which he served ten months in the county jail. While there are some contradictions and slight inconsistencies in the testimony of the boy William, it cannot be said as a matter of law that his story of the occurrence complained of was so improbable as not to be worthy of belief.

Appellant assigns as error the sustaining of an objection to the question asked of Mr. Garwood, the manager of the apartment house where appellant lived: “Have these boys ever asked you for money?” As a matter of fact, the question was asked and answered, “Yes, sir,” before the objection thereto was interposed, and the answer was not thereafter stricken from the record; consequently, the jury undoubtedly considered the answer in arriving at its verdict. In any event, if any error existed by reason thereof, it was

For the foregoing reasons the order and judgment appealed from are affirmed.

Doran, J., and White, J., concurred.