People v. Pratchner

BARNARD, P. J.

The appellant was charged with a violation of section 288a of the Penal Code. He was found guilty by a jury and has appealed from the judgment and from an order denying a motion for a new trial.

It would serve no useful purpose to set forth the evidence here. The testimony of the complaining witness, aside from the question of corroboration, is amply sufficient to sustain the verdict. The main contention here is that the testi

[453]

mony of this witness was not sufficiently corroborated. A reading of the record clearly shows this contention to be without merit. There is evidence of other instances of improper conduct on the part of the appellant with other boys. It appears that the appellant frequently had the complaining witness in his room and was much in his company; that the father of the boy complained to the appellant about his keeping the boy from coming home from school on time; that the father told the appellant not to come to his home again; and that the appellant,- while denying that the particular incident happened, did not deny that the boy was in his room at the time in question. There is also the testimony of another boy who found the appellant and the complaining witness in a most compromising position just a few minutes before the offense is alleged to have been committed. The evidence referred to tended to connect the appellant with the commission of the crime and furnished sufficient corroboration within the well-known rules.

(People

v.

Nichols, 2

Cal. App. (2d) 99 [37 Pac. (2d) 710].)

The only other point raised is that the deputy district attorney was guilty of prejudicial misconduct in his argument to the jury. Two instances are cited. In the first of these, while the deputy district attorney was summarizing the testimony of the main corroborating witness, he referred to one fact which was a reasonable and almost necessary inference from certain testimony given by the complaining witness. This was assigned as misconduct and the jury was instructed to disregard the statement. In referring to the matter the deputy district attorney plainly stated that this fact was testified to by the complaining witness. The fact in question was fairly in evidence, was attributed to the right witness and we are unable to see that the statement as made was improper. In any event, the instruction to disregard the statement was a sufficient protection of the appellant’s rights.