Summary
In People v. Wasenius, 113 Cal.App. 106 [ 297 P. 966], a section 288 case, the court stated that the testimony was of such a revolting character that a recital of same would not be made; but that there was no merit in the claim that it was inherently improbable that defendant committed the offense charged; that such cases do occur and their facts are not therefore inherently improbable.
Summary of this case from People v. JacksonOpinion
Docket No. 1615.
March 31, 1931.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. J.J. Trabucco, Judge Presiding. Affirmed.
The facts are stated in the opinion of the court.
Alfred J. Hennessy for Appellant.
U.S. Webb, Attorney-General, and W.R. Augustine, Deputy Attorney-General, for Respondent.
Defendant was charged in an information filed by the district attorney with the commission of a felony, to wit: Violation of section 288 of the Penal Code. He was tried and convicted. Motion for a new trial was made and denied. This is an appeal from the judgment and order.
[1] Insufficiency of the evidence and misconduct on the part of the jury during the course of the trial are relied on for a reversal. The evidence is of such a revolting character that a recital thereof will not be made in this opinion. The prosecuting witness testified in detail to the acts committed and her testimony was supported by an eye-witness of the affair. Nor is there any merit in the claim that it was inherently improbable that defendant committed the offense charged. Such cases do occur and their facts are therefore not inherently improbable. ( People v. Troutman, 187 Cal. 313 [ 201 P. 928].) [2] The further claim that there were irregularities on the part of the jury during the deliberation of the case is also without merit. The affidavit, to the effect that the jury was influenced by one of its members who it is claimed visited the scene of the crime, was denied by counter-affidavits. There is no merit in the appeal.
The judgment and order appealed from are affirmed.
Knight, J., and Cashin, J., concurred.