Tober

Defendant appeals from a judgment on verdict convicting him of a violation of section 288 of the Penal Code.

Facts

The victim, Celia, aged 10 at the time of the offense, January 7, 1965, was in bed in her separate bedroom on the second floor of her mother’s home when defendant entered the bedroom on two occasions separated by a brief period of time. On his first entrance, he left the door open, which permitted entry of light through the open bathroom door, asked Celia her age and was told “ten years old,” said he thought she was 14; when she put her head under the covers licked one or both of her ears. Before entering the second time, he shut the bathroom door and after entering the bedroom shut the bedroom door, removed the child’s underpants and performed lewd and lascivious acts, including the placing of a finger in her vagina with the result that some bleeding from the ruptured hymen followed. There were evasive movements by the child from her bedroom to bathroom, back to her bedroom, to her mother’s unoccupied bedroom, to the bathroom, an’d then downstairs to the kitchen, where she told her story to her mother. The police were called, arrived shortly, heard the child’s…