244 P. 1086 | Cal. Ct. App. | 1926
Defendant was charged with the crime of assault with intent to commit the infamous crime against nature. The jury returned a verdict by which defendant was found guilty of the lesser offense of an attempt to commit the said crime. He appeals from the judgment and the order denying his motion for a new trial. *560
[1] The first point, as suggested by appellant, is that because an attempt to commit the offense with which defendant was charged might be less than the crime of an assault with intent to commit it (People v. Akens,
It is clear that an attempt might be made to commit a crime of the nature of that involved in the charge made against defendant without going so far as actually to commit an assault upon the intended victim. Of the two offenses, manifestly the attempt is the lesser and is necessarily contained within the greater offense of an assault with intent to commit it.
The principle for which appellant argues is ruled adversely to his contention in the case of People v. Dong Pok Yip,
"Where the evidence clearly would support a verdict for a higher offense, the conviction of a lesser crime necessarily included therein will not be set aside. (People v. Muhlner,
In another case (People v. Oates,
"It is contended that sections
"The instructions asked by defendant and refused were based upon the erroneous assumption that defendant could not be convicted of an attempt to commit the crime charged."
It is next urged by appellant that the victim of defendant's alleged assault being an accomplice, no conviction could be had on the testimony of such accomplice unless he was corroborated by other evidence which tended to connect the defendant with the commission of the offense, and that corroboration which merely showed the commission of the offense or the circumstances thereof would be insufficient. (Sec. 1111, Pen. Code.)
[2] Defendant testified that he neither assaulted the complaining witness, as alleged in the information, nor made any attempt to commit the crime of which he was accused. The complaining witness testified to the commission of the act by the defendant, but steadfastly maintained that the alleged assault was committed against his will and without his consent. If the jury believed the testimony of the complaining witness (and the verdict would indicate that such was the case), the question of corroboration is not available to the appellant. (People v.Howell,
As is laid down in the case of People v. Klopfer,
In the case of People v. Dong Pok Yip,
[4] Appellant specifies as error the admission in evidence, over defendant's objection, of certain obscene pictures or photographs which were found in the vest of the defendant at the time of his arrest. Some evidence was also introduced to the effect that, while defendant did not personally show the photographs to the prosecuting witness, defendant had *563 shown them to "the other boys and the other boys passed them around" so that at least with defendant's implied consent the prosecuting witness saw them. The authorities do not sustain appellant in his contention.
In the case of People v. Bose,
[5] Misconduct by the deputy district attorney in charge of the prosecution is specified by appellant as a reason why the judgment against defendant should be reversed and a new trial granted.
An examination of the transcript of the proceedings had on the trial of the action discloses that the alleged misconduct consisted in part in asking questions of witnesses as to the general reputation of defendant for chastity and morality in the community in which he resided. It also appears that at no time had the reputation of defendant been put directly in issue. The remaining specification of misconduct on the part of the deputy district attorney consisted in his asking one of the witnesses, also the defendant, whether some time before the offense for which defendant was on trial was committed defendant had not put his mouth on the private parts of the witness who was being interrogated.
As to each of the questions relating to the general reputation of defendant for chastity and morality and the question asked of the witness to whom reference had just been had, the court sustained defendant's objection. To the particular question asked defendant, no objection was made. No assignment of misconduct of the deputy district attorney was *564 made by the defendant, except as to one question asked one of the witnesses regarding defendant's general reputation for chastity and morality; nor was the court ever requested by the defendant to admonish or instruct the jury with reference thereto. The jury, however, was instructed that "if any evidence has been admitted and afterwards stricken out, you must disregard the matter so stricken out, entirely, and if any counsel has intimated by questions which the court has not permitted to be answered, that certain things are, or are not, true, you must disregard such questions and refrain from any inferences based upon them."
In the case of People v. Fodera,
In the case at bar it is plain that the deputy district attorney was guilty of misconduct in asking each of the questions to which reference has been had; but taking into consideration the facts as heretofore set forth herein in connection therewith, it is equally clear that, judged by the authorities heretofore cited herein, defendant is in no position to complain. *565
The judgment and the order denying defendant's motion for a new trial are affirmed.
Conrey, P.J., and York, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on March 17, 1926.