People v. Cecil

NOURSE, J.

The defendant was tried and convicted upon an information charging him with a violation of the provisions of section 288 of the Penal Code. On the day of arraignment the defendant orally moved for a new trial without assigning any grounds therefor. This motion was denied and the defendant has appealed from the judgment and from the order denying a new trial upon a record prepared under section 953a of the Code of Civil Procedure.

On these appeals but two grounds are urged by the appellant: First, that the trial court erred in refusing to give the jury certain instructions proposed by the appellant, and, second, that the verdict is void because not in proper form. ¡Beyond the suggestion that the appellant was not properly identified by the witnesses for the prosecution no attack is made upon the evidence. The direct testimony detailing the circumstances of the alleged assault as given by the prosecutrix was sufficient in itself, if believed by the jury, to sustain a verdict of guilty. The testimony of the witnesses who were called by the state to give evidence of corroborating circumstances was conflicting in some respects, particularly as to the methods used by each witness in identifying the accused. But these witnesses, most of whom were young children, gave their testimony in an apparently straightforward manner and all agreed in identifying the appellant as the party who had been in the place where the offense was committed at the time fixed by the prosecutrix. Though the appellant took the witness-stand in his own behalf, he did not expressly deny the testimony of the prosecutrix covering the actual commission of the offense. On the other hand, his testimony, which was confined to the matter of identification and the effort to prove an alibi, was of such a

[568]

nature that the jury must have treated it as an admission of guilt.

The first assignment of error relates to the refusal of the trial court to give certain instructions requested by the appellant. The first of these instructions covered the presumption of innocence and directed the jury to view all the testimony in the light of that presumption throughout the trial of the case. It was refused upon the grounds that the same subject had been covered in instructions previously given by the court. In referring to the instructions which were given we find the following: “A defendant in a criminal action is presumed to be innocent until the contrary is proved. And in a case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. . . . All the presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proven guilty.” This instruction fully covers the subject matter of the one proposed by the appellant.