People v. Healey

NOURSE, J.

Defendant appeals from a judgment and order denying his motion for a new trial after conviction on an information charging him with a violation of section 288 of the Penal Code. It is alleged in the information that the offense consisted of lewd and lascivious acts committed in relation to a girl of the age of ten years.

[564]

Defendant has assigned three grounds for reversal—(1) insufficiency of the evidence; (2) misconduct of the district attorney; and (3) error in the admission of certain evidence.

[1]

(1) The first ground assigned is based upon the improbability of the story of the complaining witness, the appearance that she had been coached in her story, and the fact that she failed to make an outcry. But a review of the record satisfactorily shows that, though the testimony of the complaining witness may not seem to be altogether convincing, it was sufficient to sustain the verdict if believed by the jury. The weight of the evidence is, of course, a matter for the jury and not for this court. The failure to make an outcry immediately after the commission of the act goes only to the question of credibility of the prosecutrix.

[2]

(2) Misconduct on the part of the district attorney is assigned in his reference in his opening statement to an alleged admission made by the defendant in the presence of certain police officers of some act of indiscretion in relation to the prosecuting witness and another girl. When the offer to produce such testimony was made by the district attorney, defendant’s counsel objected and the district attorney confessed error and withdrew the remark. Thereupon the court instructed the-jury to disregard it.

But when the witness Lilienthal was on the stand the district attorney endeavored to get similar testimony before the jury. That the testimony was not admissible reference need be made only to the recent opinion of the supreme court in

People

v.

Anthony,

185 Cal. 152, [196 Pac. 47], But defendant did not assign the error at the time or request the court to instruct the jury to disregard it. It is apparent from the entire record that no harm resulted from the error now criticised because the defendant in his own examination and in the cross-examination of the police officer brought before the jury the only testimony regarding the other girl which was at all incriminatory.