People v. Swensen

173 P. 934 | Cal. Ct. App. | 1918

The defendant was accused of committing a lewd act, as denounced in section 288 of the Penal Code, upon the person of a child three and a half years of age. He was convicted of an attempt to commit this crime. He was found in a basement with the child. Her clothes were down. She had a nickel, which she said he gave her. He contradicted this statement. He ran when discovered emerging from the basement, but was pursued and arrested. Various plausible explanations of his situation and conduct are offered by his counsel, upon which we are asked to say that the verdict is not sustained by the evidence. All these explanations were by the record presented to the jury. We cannot nor have we any disposition to usurp their functions in determining the truth or falsity of these explanations.

It is also contended that the evidence failed to show an attempt to commit the crime. We think, however, that it is sufficient for this purpose. Some complaint is made of the refusal of the court to give certain stock instructions requested by the defendant; but these instructions were all given — in different language, it is true — but in effect by the court in its charge to the jury.

The judgment is affirmed.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 15, 1918.