¶1 dissenting:
¶2 I cannot concur in this decision.
¶3 It is a point of the decision that the mistreated child’s identification of her assailant is not well grounded. As stated in the opinion, some male person held the little girl and emitted semen on her. She was absent from her home only about twenty minutes. It is admitted that within that time she visited defendant’s place of business and purchased a newspaper of him. Time, place and circumstances seem to exclude the possibility that any person other than the defendant forced his embraces upon the child. This renders her identifying statement to the policeman of secondary and inconsequential moment. Let, then, that statement be eliminated. There remains, in my judgment, ample identification of the defendant as the guilty party. The said statement can not logically be said to have prejudiced the defendant if the whole evidence, without the statement, is such that the jury could not properly have returned a verdict other than “guilty.” Such is my version of that phase of the evidence.
¶4 The action of the majority of the Court is further sought *500 to be justified on the theory that maybe, after all, the defendant did not have the intent of penetration. It is asserted that “any such attempt by a man on a child so small would have necessarily resulted in bruising or laceration.” Coneededly such result would probably attend, but it might not. Whether there was laceration would depend on. the persistence of the effort to penetrate.
¶5 It is my judgment that in the situation disclosed.by this record, the ends of justice do not require refinement of reasoning to determine what may or may not have been the defendant’s intentions when he wronged the child. Where a record, as here, warrants a jury in finding that the accused was guilty of revolting brutality of conduct, nicety of judicial distinction in appraisal of the intent actuating the vicious behavior seems inconclusive.
¶6 Therefore, I respectfully dissent.