People v. Humphrey

BROWN (Gerald), J.

Defendant was tried by jury and found guilty of both counts of an indictment charging him with committing lewd and lascivious acts upon children, in violation of Penal Code, section 288. Proceedings were suspended and defendant was certified for examination as a sexual psychopath. This appeal is taken from an order denying a motion for new trial. (Pen. Code, § 1237, subd. 2.)

Defendant’s contention that the evidence was insufficient to support the verdict of guilty on count one compels the following summary of a portion of the evidence relating to that count: In August 1959, Mrs. Odor and her three children were at defendant’s home where she was preparing

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a meal. She went into the bedroom and observed her 4-year-old daughter, Candi, in bed with defendant. The child’s head, which was only partially visible under the covers, was facing and near the area of the private parts of defendant, who was moving his hips as if engaged in intercourse. Candi got out of bed when Mrs. Odor called, and in doing so the covers were pulled back revealing defendant’s erect penis. Defendant testified that he was sick and “hung over,” and had placed another child, a year old baby, on his bed to quiet its crying before he went to sleep. He denied that the 4-year-old, Candi, was in bed with him. He thought that Mrs. Odor’s accusation was an attempt to get him to offer her money.

From the foregoing and a review of the entire record, we conclude that the jury’s verdict on count one was supported by substantial evidence. Thus, there is no basis for appellate review.

(People

v.

Redrick,

55 Cal.2d 282 [10 Cal.Rptr. 823, 359 P.2d 255].) Accordingly, defendant’s contention that count one is not supported by sufficient evidence is rejected.

Regarding count two, defendant contends that the testimony of the prosecution witness, his 6-year-old daughter, Penny, was “coached” and for this reason was insufficient and incompetent. This contention lacks merit. There is nothing in the record to show that Penny Humphrey’s testimony was “coached.” Though her mother apparently told her that her father was “sick” and that the purpose of the court proceeding was to help him, there is no indication that the events she related were prompted by anything but her own observations and impressions of the facts. Since defendant does not question the sufficiency of Penny’s testimony as such, but contends only that it is insufficient by virtue of being “coached,” no purpose can be served in summarizing the evidence. Suffice it to say that a review of the entire record reveals evidence of a substantial nature sufficient to support the jury’s verdict on count two.