People v. Gasser

Appellant was convicted of the crime defined in section 288 of the Penal Code. It was alleged that he committed the lewd and lascivious act with a female child. The little girl was seven years of age at the time of the commission of the alleged offense. She resided in the county of Imperial with her mother. There was testimony given by more than one witness which furnished strong evidence in proof of the charge made in the information. Defendant’s appeal is taken from a judgment of imprisonment and an order denying his motion for a new trial. In view of the strong character of the evidence introduced against the appellant, it is plain that upon the facts no miscarriage of justice has resulted. The errors complained of must be viewed in the light of that condition which the record shows. We will not attempt to discuss in detail the many objections presented in the seventy-six page brief of the appellant, but will consider only those which present questions fairly debatable.

Further contention is made by the appellant that the court should not have received the testimony of the prosecutrix who was at the time but seven years of age. After the witness had answered preliminary questions as to her name, age, place of residence, and her acquaintance with several persons named, appellant’s counsel objected on the ground that the witness was not shown to be competent. The court overruled the objection. Children under ten years of age are not incompetent witnesses unless they appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. (Code Civ. Proc., sec. 1880, subd. 2.) It was for the trial judge to determine as to whether the witness who appeared before him was competent to testify. Before objection was made, she had responded to questions of the district attorney with apparent understanding and intelligence, and it cannot be said that, where the trial judge was observing the witness and listening to her manner of testifying, anything was shown which would tend to establish the incompetency of the infant to truly testify. (People v. Dunlop, 27 Cal. App. 464 , [ 150 Pac. 389 ].) The burden of showing the incompetency of the child as a witness rested upon the defendant. (People v. Holloway, 28 Cal. App. 218 , [ 151 Pac. 975 ].)

On cross-examination of the mother of the prosecutrix the witness was interrogated at some length as to the date of the commission of the alleged offense, and the court finally, sus

It was within the discretion of the trial court to refuse to exclude the witnesses not under examination, during the trial. (People v. McCarty, 117 Cal. 65 , [ 48 Pac. 984 ]; People v. Nunley, 142 Cal. 441 , [ 76 Pac. 45 ].)

It is next asserted that the court erred in the giving of this instruction: “The prosecution has selected acts testified to by the witnesses as having been committed by the defendant on August 16, 1916, and has elected to rely on proof of such acts for a conviction in this case. Testimony has been introduced by the prosecution tending to prove other acts of lewd and lascivious conduct of the defendant toward Alice Burcki, prior to the acts relied upon for conviction. This evidence is introduced for the purpose of proving the lewd and lascivious disposition and tendency of the defendant to commit lewd and lascivious acts. This evidence is not introduced to prove distinct offenses, but corroborative evidence tending to support the one specific offense for which the defendant is being tried.” It is claimed that this instruction is similar to one given in People v. Harlan, 29 Cal. App. 603 , [ 156 Pac. 980 ], and which was held to be erroneous. The parallel does not exist. The instruction in the Harlan case advised the jury that evidence of other offenses was introduced “for the purpose of proving the illicit relations of the defendant” with the prosecutrix. That instruction was further declared erroneous, in that it in effect advised the jury that complete proof had been made of such other acts. The instruction here given does not agree with the instruction given in People v. Harlan, for the court here told the jury only that testimony tending to prove such other acts was competent for the purpose of proving the lewd and lascivious

We think that none of the other contentions made by appellant for reversal are deserving of specific discussion. We have examined all of them and are satisfied that the defendant was justly convicted upon ample proof.

The judgment and order are affirmed.

Conrey, P. J., and Shaw, J., concurred.