People v. Shekell

FRICKE, J., pro tem. Appeal from the judgment and order denying motion for new trial.

Appellant was charged in an information with a violation of sections 288 and 288a of the Penal Code. Counts 1 and 2 charge the offense as being committed upon.Hazel Cobb. Upon motion for new trial, the conviction upon counts 1 and 2 was set aside and those charges were dismissed. AppeRant was convicted of the offenses charged in counts 3, 4, 5 and 6 and appeals from the judgment and order denying a new trial thereon.

Appellant contends it was error for the trial court to deny a motion to advise the jury to acquit as to counts 1 and 2. The motion was based upon the alleged unreliability of the testimony of the prosecutrix, that she was an accomplice as a matter of law, that her testimony was without the required corroboration, and that there was insufficient evidence to warrant a conviction. " Whatever error there may have been in the refusal of the court to advise the jury to acquit appellant of the offenses charged in counts 1 and 2, it has been cured by the subsequent granting of a new trial and a dismissal as to those counts. Appellant urges, however, that the verdicts of guilty as to the last four counts in the information must have been influenced by the evidence as to the first two counts. This assertion is only a theory of counsel, without support in the record, [539]and presumes that the jury did not fairly perform its duties, a presumption in which we cannot indulge.

The denial of motions to strike portions of the testimony of the prosecuting witness under counts 1 and 2 was applicable to those counts alone and could not have prejudiced appellant, as those counts have been dismissed.

Appellant’s main contention is that the evidence does not warrant his conviction. We have read the testimony, which we omit stating because of its revolting nature, and do not find it to be so inherently improbable as to warrant the granting of a new trial. Though conflicts and contradictions exist, there is ample evidence to warrant the verdicts. It was for the jury and the trial judge on hearing the motion for a new trial to determine the issues of fact, and their decisions are conclusive on this court.

Appellant complains of the giving and refusal of certain instructions. As to those instructions relating to the witness Hazel Cobb as an accomplice or principal, error, if there be any, would not be ground for a new trial, since the court granted a new trial as to the charges with reference to which she testified and may have been an accomplice, and subsequently those counts were dismissed.