People v. Boford

VAN DYKE, P. J.

Appellant was convicted of a violation of section 288 of the Penal Code of this state and of a violation of section 702 of the Welfare and Institutions Code. He has appealed from the judgment and from the order denying his motion for new trial.

In support of his appeal he contends: 1. That he was denied a fair trial and his liberty was taken without due process of law; and, 2. The trial court committed error in that when defendant attempted to impeach two prosecution witnesses the trial court refused to allow him to do so.

In support of his first assignment appellant cites six instances of asserted misconduct on the part of the trial court. (1) The complaining witness, a boy of 12 years of age, had testified on direct examination that appellant had shown him a number of lewd pictures and that having done so appellant placed his hands on the boy’s privates. He was then asked several times just how this was done and his counsel objected to the third question .on the ground that it had been twice asked and answered. The court permitted the third question which elicited the same answer. (2) When the complaining witness had been asked a question as to where certain employees of his father had been working at a certain time he answered that he did not know. The question was repeated and counsel objected to the,repetition. The court did not rule on the objection. (3) The court, says appellant, permitted the prosecution to misstate evidence through the form of a question asked. (4) When appellant’s counsel was engaged in developing from a prosecution witness on cross-examination that appellant had been dissatisfied and unhappy in his employment by the father of the com

[578]

plaining witness and had left his employment for that reason, the court held the point immaterial and prevented further questions along that line. (5) The court permitted the sheriff to illustrate his testimony by drawing a diagram. (6) Appellant had taken the stand in his defense and was under cross-examination. He had denied that the pictures had ever been in his possession. This contradicted a number of witnesses who had testified that he had shown them the pictures and so he was asked the following: “Q. All the testimony of those individuals is false ? A. For those pictures, absolutely. It is the truth, yes, I have another picture, but not those. Q. Where are those other pictures