People v. Tibbetts

STURTEVANT, J.

The defendant was convicted of violating section 288 of the Penal Code. He made a motion for a new trial, his motion was denied, and from the judgment of conviction and the order denying a new trial he has appealed.

1. The defendant contends that the evidence was insufficient to support the verdict. In making this contention he claims that the witnesses swore falsely as to some matters and that some of the sworn statements were inherently improbable. For the purpose of this decision it may be conceded that both assertions are well founded. However, as to other matters it is equally clear that the prosecution introduced evidence which abundantly supported every allegation contained in the information.

2. It is claimed that the prosecutrix, a little girl eight years of age, should not have been allowed to testify. (Code Civ. Proc., sec. 1880, subd. 2.) The record discloses that the trial court carefully examined her as to her mental development and the record does not show that the trial court erred in its determination that she was entitled to be sworn. The point is without merit.

{People

v.

Reyes

, Cal. 650, 651 [229 Pac. 947].) ;

3. When the jury was being selected tlx ant’s attorney asked each of several jurors this “Would you follow this instruction if the court should \\ instruct you, that it would only be necessary

for the d'e

[790]

fendant to establish, evidence sufficient

to raise a reasonable doubt in your mind as to the truth of the charge in the information, upon which it would be your duty to return a verdict of not guilty?” (Italics ours.) The prosecution interposed an objection, the objection was sustained and the defendant claims that the ruling was error. It was not. (Pen. Code, sec. 1096.)

4. The selecting of a jury commenced in the morning. .Some of the talesmen present were examined during the morning' session. At the afternoon session some other talesmen who were on the panel came forward and their names were put in the box and thereupon the attorney for the defendant inquired if those persons were members of the panel. He was advised that they were and the reason why their names were not in the box during the morning. Thereupon the attorney for the defendant requested that a new panel be drawn because the defense was using ten peremptory challenges without a full panel. The motion was denied. The attorney then made an objection to the names going into the box. The objection was overruled. He then asked the court to discharge the panel. The motion was denied. "We see no error in any one of the rulings. The defendant cites no authorities and presents no argument showing that there was any error committed.