Summary
holding that the child victim's testimony is sufficient to sustain conviction for lewd, lascivious, or indecent assault even without corroborating evidence
Summary of this case from Cirota v. JonesOpinion
April 25, 1950.
Appeal from the Criminal Court of Record of Dade County, Ben C. Willard, J.
Bell Bell, Miami, for appellant.
Richard W. Ervin, Attorney General and Reeves Bowen, Assistant Attorney General, for appellee.
Gennaro Giuliano was tried in the Criminal Court of Record for Dade County on an information charging that he did "unlawfully and feloniously handle, fondle, and make an assault upon * * *" a child of 9 years of age. He entered a plea of "not guilty" and testimony was taken before Judge Ben Willard, the appellant having waived a trial by jury. He was found guilty and sentenced to 3 years in the State penitentiary at hard labor. This appeal is prosecuted from that judgment.
The information was exhibited under Section 800.04, F.S. 1941, Cum.Supp. 1947, F.S.A., which condemns an assault upon a child under 14 years of age in a lewd, lascivious or indecent manner without intent to commit rape.
The appellant poses one question for our determination. "Is the uncorroborated testimony of a child aged 9 years sufficient to support a conviction of the charge of lewd, lascivious and indecent assault upon a child under the age of 14 years without the intent to commit rape?" For an answer to this query we must examine the facts and circumstances in the light of the findings by the trial judge.
The State's case against the appellant rests primarily, if not solely, upon the testimony of the prosecuting witness, a girl 9 years of age who is a fourth grade student. She outlined in detail the circumstances surrounding the specific act with which the appellant was charged. The State's only other witness was the child's mother whose testimony was limited to an acknowledgment that the child reported the incident to her within an hour after it happened. The defense consisted of the appellant's denial of any misconduct whatsoever and the testimony of two character witnesses who testified that they had known him for eight months and that his conduct insofar as they knew had been exemplary during that period.
There was no objection to the competency of the prosecuting witness and from her testimony it appears that she is a normal 9 year old girl of average intelligence fully capable of being impressed by, and of repeating, the events which transpired. The trial judge observed the demeanor of the girl and was convinced by her apparent frankness and honesty that she testified truthfully. In the record we find the following statement by the trial judge: "* * * There is no question in my mind but what this man is guilty. I'll adjudge him guilty. There is no occasion for this little girl testifying and lying about it. * * * And she has no reason to dislike the man and has every reason in the world to like him. He has given her money and bought her coca-colas. There is no question in my mind about it." In answer to the appellant's question we need only to say that it is not absolutely necessary for the testimony of the prosecuting witness, though she be only 9 years of age, to be corroborated in order to sustain a conviction. Especially is this true when the very nature of the crime is such that it would not be committed in the presence of witnesses.
We do not mean to hold that every 9 year old girl would in a case of this character be a competent witness because we recognize the possible existence of a vivid, fantastic, childish imagination and that such creative power might give birth to testimony which could result in the conviction of an innocent, child-loving, paternal or maternal-minded adult. In order to safeguard himself the appellant, if he actually questions the competency of the witness, should present that issue to the trial judge for his investigation and determination. The appellant elected not to raise the question of the competency of the young girl as a witness. Consequently, we assume that he was satisfied of her competency as was the trial judge.
After the establishment of the competency of the witness the credibility or weight to be given her testimony is a matter to be determined ordinarily by the jury but in this case, wherein trial by jury was waived, by the judge. In the absence of a clear showing of error we will not disturb the judgment predicated upon the findings of fact made by the trial court.
Affirmed.
ADAMS, C.J., and CHAPMAN and SEBRING, JJ., concur.