People v. Schoonderwood

McCOMB, J.

From a judgment of guilty on two counts of violating section 702 of the Welfare and Institutions Code (contributing to the delinquency of a minor), after trial before the court without a jury, defendant appeals.

The evidence being viewed in the light most favorable to the People (respondent), the essential facts are:

On or about January 12th and 20th, 1945, defendant committed acts of perversion with the body of a boy fourteen years of age. (Count two of the indictment.) On or about April 18, 1945, defendant committed another act of perversion on the body of a boy fifteen years of age. (Count three of the indictment.)

Defendant relies for reversal of the judgment on three propositions which will be stated and answered hereunder seriatim:

First:

The trial judge was disqualified from, hearing and determining the cause.

This proposition is untenable. The objection that a trial judge is disqualified from hearing issues of fact in a case must be made before the commencement of a hearing of

any issue of fact

in the action. (Code Civ. Proc., § 170, subd. 5;

People

v.

Sweet,

19 Cal.App.2d 392, 396 [65 P.2d 899].)

In the present case no objection of any nature was made

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in the trial court relative to the qualifications of the trial judge. The objection is raised for the first time on appeal. Therefore, under the rule above stated, it comes too late and any objection that defendant might have had to the qualifications of the trial judge he has waived by failing to make the objection before the trial court.

Second:

The evidence was insufficient to support the trial court’s findings that defendant was guilty as charged in counts two and three.