Spillard

Appellant was convicted of violating section 288 of the Penal Code.

The motion for a new trial was denied, and appellant was committed to the state prison for the term prescribed by law. From the order denying the motion for a new trial and from the judgment of conviction defendant prosecuted this appeal.

Briefly the facts are that on a Saturday afternoon, either June 15, or June 22, 1935, the complaining witness, a little girl of about ten years of age, with four companions, two girls and two boys, ranging in ages from seven to thirteen years, went to a moving picture theater in Sacramento. They seated themselves in the last tier of seats in the balcony. Shortly after they arrived, according to the testimony of the complaining witness, the defendant, who sometimes acted as a watchman and peace officer for the theater, came into the balcony and seated himself upon the steps in the aisle immediately in front of and below the complaining witness, and there committed the acts charged in the information.

The only witnesses for the prosecution were the complaining witness and one of the boys in the party. The appellant was known to the children, and both of the witnesses for the…