People v. Agullana

BARNARD, P. J.

The defendant was charged with the crime of lewd and lascivious conduct alleged to have been committed upon and with a girl twelve years of age. According to the evidence received the offense charged in the first count of the information was committed at the home of the mother of the girl on or about September 14, 1934, and the .one charged in the second count occurred in an automobile parked on a lonely road on or about September 2, 1934. A jury found the defendant guilty on both counts and from the judgment which followed this appeal is taken.

The first point raised is that the evidence is not sufficient to support the judgment. It is unnecessary to review the evidence, but the story told by the prosecuting witness, if believed by the jury, was amply sufficient to sustain the. verdict as to each count. Her testimony as to what occurred on September 14th was fully corroborated by the testimony of her father, who testified that he observed the incriminating acts while looking in at a window, having gone on that occasion to the home of his estranged wife for the purpose of seeing what was going on there. The 'main attack on the sufficiency of the evidence, in so far as the offense charged in the first count is concerned, is directed to its claimed inherent improbability, since the mother of the child was in the house at the time. There is evidence that the mother was in the kitchen of the home for a considerable part of the time in question and it fully appears that during the time she was in the kitchen it was physically impossible for her to see what occurred at the point where, according to the evidence, the offense took place. It is also urged that certain testimony to the effect that the father of the girl had told the witness that he would swear to anything in order to send the defendant to San Quentin demonstrates that the entire case was a frame-up. The witness who gave this testimony was rather effectively impeached, and the making of the statement was denied by the father. While the usual conflict appears, the entire question was one of fact for the jury.

[37]

In connection with the evidence it is further argued that if the story told by the prosecuting witness be accepted as true, the appellant was guilty of an attempt to commit rape and not of the offense with which he was charged. This contention relates only to the offense involved in the second count of the information and only to a part of the testimony of the prosecuting witness relating thereto. In making this contention, other portions of her evidence which support the charge here made are entirely disregarded. The fact that the appellant" may have been guilty of still another offense is certainly no defense to the charge upon which he was tried