222 P.2d 191 | Cal. Ct. App. | 1923
The defendant was charged by information with the crime of assault with intent to commit rape. He was convicted of that crime and now appeals from the final judgment and from the order denying his motion for a new trial. The prosecuting witness is the defendant's daughter, fourteen years of age.
[1] The first point presented by the defendant is the alleged misconduct of a juror, who, during the course of the trial and while a witness was on the stand, left his seat for the purpose of adjusting one of the courtroom windows. The court immediately admonished the juror, and said, "Mr. Reporter, will you turn back and read that question again?" The question was re-read by the reporter. The court thereupon sustained an objection to the question. It is evident from the record that if in fact the juror did not hear the question while he was adjusting the window, the court had the question re-read, for the evident purpose so that the juror should not miss whatever he possibly may not have heard while he was adjusting the window. The fact that the question was not allowed makes it manifest that the action of the juror in leaving his seat and adjusting the window was in nowise prejudicial to the rights of the defendant.
[2] The next point made by the defendant is that the court erred by not instructing the jury that they might find the defendant guilty of simple assault, and the defendant in support of that contention cites sections
[3] Furthermore, it appears that the appellant presented no instructions to the court directing the jury that they might find the defendant guilty of a lesser crime. The appellant, therefore, cannot complain. (People v. Worden,
[4] The defendant presents as his next point for a reversal that the verdict of the jury is contrary to law and the evidence in the case. The counsel for the defendant shows great industry in the briefs which he has filed upon this branch of the case. After a most careful examination of the entire record, including a painstaking consideration of the argument of counsel for defendant, it amounts to little more, as we view it, than a re-argument of the facts adduced before the jury, and is a plea, in effect, that the jury should not have given credence to the testimony of the prosecuting witness because of some variations in her testimony. It appears that there were two preliminary examinations *570 held in the case, and there are some discrepancies and variations between the testimony given by the prosecuting witness in the preliminary examinations as compared with her testimony given upon the trial in the superior court. These are questions, however, for the jury, as has been repeatedly held by the appellate courts of this state.
In the case of People v. Cesena,
We do not consider it necessary to review the testimony given upon the stand in this case. It is of a sordid nature, and no useful purpose will be served thereby. It is well established in this state that if this court finds any evidence from which a rational inference is drawn that the defendant is guilty, the court's inquiry can go no further. (People v. Bond,
[5] The last and concluding ground which the defendant urges is that the district attorney committed error in his closing argument to the jury. We have carefully examined the entire argument of the district attorney, and we are of the opinion that the district attorney did not commit prejudicial error. Furthermore, it appears from the record that the attorney for defendant interrupted the district attorney's closing argument but twice. The record shows that upon the first interruption the following proceedings took place: "Mr. Ingraham: If your Honor please, I don't think the district attorney ought to make that kind of a remark. The Court: Do you desire it stricken from the record? Mr. Ingraham: I do. The Court: It is stricken from the record and the jury instructed to disregard it." Upon the second interruption, the record shows that a colloquy took place between the *571
attorney for the defendant and the district attorney, but it nowhere appears that the attorney for the defendant assigned the remark of the district attorney as erorr, or requested the court to take any action. Under these circumstances, the defendant cannot complain. (See People v. Warr,
In the case of People v. Panagoit,
Again, in the case of People v. Vaughn,
For the reasons herein given we believe that the defendant was fairly tried and legally convicted, and the judgment and order denying the motion for a new trial are affirmed.
Tyler, P. J., and St. Sure, J., concurred.