Domenighini

Appellant was charged by an indictment with a violation of section 288 of the Penal Code, to wit, a commission of a lewd and lascivious act upon the body of a female child. He appeals from the judgment entered on a verdict of guilty and from an order denying a new trial, urging as grounds for reversal that the evidence, aside from the appellant’s extrajudicial statements, was insufficient to prove the corpus delicti; that certain rulings by the trial court were erroneous, and that its statements and those by the attorneys for the prosecution made during the course of the trial constituted prejudicial misconduct. The evidence, aside from appellant’s extrajudicial confession, shows that the child was about three years of age, and appellant, who boarded with her parents, occupied a room in their dwelling. On the day the crime is alleged to have been committed appellant was present in the room mentioned, and, as may fairly be inferred from the evidence, he claimed to be ill, and was occupying a bed therein. The parents were absent and the child had been left in the care of her grandmother, who had come from her home to lend this assistance. The grandmother testified that during the…

I dissent. I am of the opinion that there is not sufficient evidence to establish the corpus delicti. The only evidence remaining after eliminating not only the extrajudicial admissions and the confessions of the defendant, but also such evidence as tends to connect the defendant with the crime when established is that the child cried in defendant’s bedroom; that she complained of an inflammation, and that she was subsequently found to be suffering from a venereal disease; that none of those residing in the house, unless it be the defendant, were infected with such disease, and which disease all the experts who testified agree in the case of a female child is more usually contracted by accidental infection than by direct contact, as from bed linen, towels, soap, sponges, and lavatory seats. This evidence at best but casts a suspicion upon the defendant and proves mere opportunity. The proofs of mere suspicious circumstances and of opportunity to commit a crime are never sufficient to justify a conviction (People v. Robins, 171 Cal 466 [ 154 Pac. 317 ]), and a fortiori to establish the existence of a crime.

In the majority opinion People v. Jones, 123 Cal. 65 [ 55 Pac. 698 ], is…