People v. Meyer

STURTEVANT, J.

The grand jury presented an indictment against the defendant, he appeared and entered his plea, a trial was had before the court sitting with a jury, the jury returned a verdict of guilty, the defendant made a motion for a new trial, the motion was denied and he has appealed from the judgment and the order denying his motion for a new trial.

The defendant contends that the indictment is insufficient to sustain the verdict, that the verdict is contrary to the evidence, and that the verdict is contrary to law, and he presents the three contentions together. The indictment alleged the commission of certain acts by the defendant on the twenty-eighth day of April, 1928, on the person of each of three little girls, Esther Stanghellini, age twelve; Sophie Churich, age ten, and Betty Tisma, age seven. In the first, third, and fifth counts the pleader charged assault to commit rape. In

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the second, fourth, and sixth counts the pleader charged a violation of section 288 of the Penal Code. The defendant calls attention to the fact that by its terms section 288 enacts a law supplementing other offenses defined by other statutes and is not applicable if the acts charged fall within the provisions of such other statutes. He then asserts that when the prosecution dismissed the first, third, and fifth counts it did so by mistake. That is purely the assumption of the defendant and is sustained by no part of the record. Continuing, the defendant quotes certain parts of the record which would tend to prove the commission of an assault to commit rape. In doing so he neglects to quote passages from the record which tend to prove- the commission of a violation of section 288 of the Penal Code. Having .given a one-sided view of the evidence, the defendant makes the claim that the defendant was guilty of an assault to commit rape, if anything, and therefore by the expressed language contained in section 288 of the Penal Code he was not properly charged under that section, that the evidence was insufficient and that the verdict may not be sustained. However, as suggested above, there was evidence that the defendant violated the provisions of section 288 of the Penal Code and perhaps there was evidence that he committed an assault to commit rape. Under no logical reasoning was the latter offense a defense to the former. In this same connection the defendant contends that the second, fourth, and sixth counts, while pleading a violation of Penal Code, section 288, went further and pleaded facts showing an assault to commit rape. Thereupon the defendant argues that the indictment was insufficient. The point is without merit. Superfluity does not vitiate. No demurrer was interposed and we are not intimating that if one had been interposed it should have been sustained. The youngest girl was not called as a witness. The other two girls were called as witnesses. Without going into detail it can readily be seen that the prosecution was attempting to prove, and did prove, a violation of section 288 of the Penal Code and that it did not prove, nor even attempt to prove, an assault to commit rape on the person of the little girl who was not called as a witness. On this branch of the appeal