People v. Morcumb

McCOMB, J.

From a judgment of guilty on four counts of

violating section 288 of the Penal Code after trial before a jury defendant appeals.

Defendant relies for reversal of the judgment on the following propositions:

First: The evidence is insufficient to sustain the judgments.

Second: Three of the complaining witnesses, children less than ten years of age, were incapable of receiving just impressions of the facts relative to which they testified and, therefore, it was prejudicial error for the trial court to receive their testimony in evidence.

Third: The trial court committed prejudicial error in permitting the mothers of the prosecuting witnesses to testify that the day following the commission of the alleged, illegal acts by defendant their daughters complained to them regarding defendant’s conduct.

Fourth: The trial court committed prejudicial error in not reading to the jury an instruction on the subject of expert testimony as required by section 1127b of the Penal Code.

The first proposition is untenable as to counts I, III, and IV of the indictment. An examination of the record

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discloses that there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to sustain each and every material finding of fact upon which the judgment of guilty as to these counts was necessarily predicated. We, therefore, refrain from further discussion of the evidence.

As to the second count of the indictment a different situation obtains. The record is devoid of any evidence upon which to sustain a conviction of violating section 288 of the Penal Code as charged in this count.

The second proposition is likewise untenable. The law is settled in California that whether of not a child under the age of ten years is capable of (a) receiving just impressions of the facts respecting which the child is to be examined and (b) relating them truthfully (sec. 1880, subd. 2, Code Civ. Proc.) is a question, the determination of which rests in the sound discretion of the trial judge, and in the absence of a showing of abuse of this discretion by the trial judge his decision will not be disturbed on appeal.