(dissenting).
I concur in the dissenting opinion of Justice Ellett and make these further observations : From the evidence it is indisputable (and no one does dispute) that the goings on that night in that house with respect to the juvenile were lewd and sordid. Further, it is likewise incontestable, and the only evidence is, that there were only two men present: the one was Harold Zesiger, who took the pictures; the other one could not have been anyone other than the defendant. This was at first affirmed by the victim. Her story, told at a later time, in which she said that because the lights were in her face she could not see, but the voice sounded like Roy’s (the defendant) has a hollow ring, smacking of being defensive of her half brother.
It was undoubtedly obvious to the trial judge that the case had to be presented through uncooperative witnesses; and that the subsequent developments in the “watering-down” of the victim’s testimony, and also the evidence of alibi, presented at a much later time, and through the associates of the defendant, are things which are neither unusual nor unexpected to experienced triers of the fact. The trial judge saw this whole situation in perspective and made the determination. The majority opinion is but a disagreement with the trial court on questions of fact, which it was the prerogative of that court to determine. There is in my mind no doubt that established rules of appellate review properly applied would require us to affirm the judgment.