People v. Whitholt

HOUSER, J.

Defendant appeals from a judgment of conviction of the crime of the commission of lewd and lascivious acts as inhibited by the provisions of section 288 of the Penal Code.

In contending that the judgment should be reversed, appellant urges that the evidence was insufficient to support the verdict. Without a recital of the details of the evidence, it will suffice to state that the transcript on appeal discloses that the victim of defendant’s assault testified -positively to the commission by defendant of the acts of which he was accused in the information. In addition thereto, each of two police officers gave testimony which strongly tended to corroborate the testimony given by the prosecuting witness. Appellant’s contention, therefore, cannot be sustained.

Prejudicial error is also suggested by appellant in that the court permitted the prosecution to ask leading questions of the prosecuting witness. But even though it might be conceded that the asking of such question was erroneous (which, as a matter of law, does not necessarily follow), it appears that no objection by defendant was made thereto at any time during the course of the trial. It is too late now for him to complain,

[589]

Appellant also specifies error in that he was unduly restricted in his cross-examination and attempted impeachment of the prosecuting witness. The record discloses the fact that on such cross-examination, in response to questions asked by defendant’s counsel, the prosecuting witness testified that on an occasion preceding that specified in the information defendant had been guilty of conduct in connection with the prosecuting witness similar to that for which he had been placed on trial. Thereupon defendant’s counsel directed the attention of the witness to the transcript of testimony given by her at the preliminary examination of defendant, and after many questions with the respective answers thereto had been read to the witness from such transcript, an objection by the prosecution to further reading therefrom was sustained by the court. Appellant makes no claim that, so far as the testimony read to the witness was concerned, any contradiction or any inconsistency appeared between it and the statement which was under attack. Nor was it either suggested by defendant at the trial, or is it by appellant here, that if permission had been granted to read further of the testimony given by the witness on the preliminary examination of defendant any such variance would be discovered. From a practical standpoint, therefore, it is difficult to perceive in what manner defendant was harmed by the ruling of the court. But, viewing the situation from another aspect, it is a rule of long standing that a witness cannot be impeached on a collateral statement first made by him on cross-examination. (1 Greenleaf on Evidence, 16th ed., sec. 449;