People v. Wall

SHINN, P. J. Appellant was convicted at a trial by court of a violation of section 288 of the Penal Code. Imposition of sentence was stayed and appellant was placed on probation [552]for five years. Thereafter, probation was revoked and appellant was sentenced to state prison for the term prescribed by law. He appeals from the judgment of conviction, urging insufficiency of the evidence to establish guilt.

At the trial, pursuant to stipulation, the ease of the People was submitted on the testimony taken at the preliminary hearing. No defense was interposed at the preliminary, but upon the trial appellant testified and called one Myrtle Morden as a witness. On application to this court an order was made that the testimony given at the- preliminary and also that given at the trial be transcribed and incorporated in the record on appeal. A transcript of the proceedings at the preliminary has been produced, but it is now made to appear that a transcript of the additional testimony given at the trial is unavailable because of the death of the court reporter, and the further fact that his stenographic notes are not readable.

The victim was a female child approximately 6 years old. She lived in a boarding house in Los Angeles with her mother who was employed in a department store. The offense was committed shortly after midnight when the child was in bed and was awakened by the presence of a man beside her bed. The child testified for the People and it is contended by the appellant that her account of the occurrence was inherently improbable and unbelievable. We have concluded after a thorough examination of the record that the contention is without merit. Before the child was allowed to testify, her qualifications as a witness were properly tested, without objection from appellant’s counsel, and her testimony was given without objection. No attack is made here upon her competency as a witness. Her testimony was clear, unequivocal and free from contradictions or inconsistencies. She appeared to be an intelligent child, and, as we shall see, her testimony was not without substantial corroboration of a circumstantial nature. It is unnecessary to relate the testimony which she gave, further than to say that it was sufficient to prove the commission of the offense and in our opinion was not at all improbable.

Appellant insists that he was not sufficiently identified by the child as the perpetrator of the offense. He says, “apparently it was dark in there . . . there was no identification of the defendant by the alleged victim and obviously any identification was impossible because it was night and the girl was asleep in her room.” The child testified that the door leading into her room was open and we find no evidence