People v. Barton

California Court of Appeal

People v. Barton

228 P.2d 852, 103 Cal. App. 2d 1, 1951 Cal. App. LEXIS 1114

CourtCalifornia Court of Appeal

DecidedMarch 20, 1951

DocketCrim. No. 4531

StatusPublished

Cited by1 cases

This text of 228 P.2d 852 (People v. Barton) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Barton, 228 P.2d 852, 103 Cal. App. 2d 1, 1951 Cal. App. LEXIS 1114 (Cal. Ct. App. 1951).

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Opinions

WOOD (Parker), J.

Defendant was charged in three counts with violations of section 288 of the Penal Code. Trial by jury was waived. He was found guilty on each count. His motion for a new trial was denied, and thereupon proceedings were suspended as to each count and he was granted probation. No judgment was entered. He appeals from the order denying his motion for a new trial. His notice of appeal also states that he appeals from “the final judgment.”

Appellant contends that the court abused its discretion by permitting the complaining witness, a girl 7 years of age, to testify. Section 1880 of the Code of Civil Procedure provides : “The following persons cannot be witnesses: 1. . . . 2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. 3.....” Before the complaining witness was sworn as a witness, the trial judge asked her approximately 27 questions as a basis for determining whether she was capable of being a witness. Her answers were responsive and indicated that she understood the questions. There was no voir dire examination by defendant’s counsel, and no objection was made at the trial to the effect that she was not capable of being a witness. The cross-examination of the witness by defendant’s counsel covers five pages of the reporter’s transcript. The judge asked the witness many questions during the trial. The contention that the judge abused his discretion by permitting the girl to testify is wholly without merit.

Appellant also contends that “the judgment” is unsupported by the evidence. In her testimony the girl related facts which were legally sufficient to prove that defendant on three occasions violated said section 288. Defendant testified that on one occasion he placed his hand on her body while applying vaseline to relieve a soreness. 'He denied that he touched her on other occasions. No useful purpose would be served by reciting the testimony in detail. Factual issues were presented for the determination of the trial court. The evidence was sufficient to support the findings.

Since there was no judgment from which an appeal could be taken, the purported appeal from final judgment should be dismissed.

The order denying the motion for a new trial is affirmed. ' The purported appeal from the judgment is dismissed.

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WOOD (Parker), J.

Defendant was charged in three counts with violations of section 288 of the Penal Code. Trial by jury was waived. He was found guilty on each count. His motion for a new trial was denied, and thereupon proceedings were suspended as to each count and he was granted probation. No judgment was entered. He appeals from the order denying his motion for a new trial. His notice of appeal also states that he appeals from “the final judgment.”

Appellant contends that the court abused its discretion by permitting the complaining witness, a girl 7 years of age, to testify. Section 1880 of the Code of Civil Procedure provides : “The following persons cannot be witnesses: 1. . . . 2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. 3.....” Before the complaining witness was sworn as a witness, the trial judge asked her approximately 27 questions as a basis for determining whether she was capable of being a witness. Her answers were responsive and indicated that she understood the questions. There was no voir dire examination by defendant’s counsel, and no objection was made at the trial to the effect that she was not capable of being a witness. The cross-examination of the witness by defendant’s counsel covers five pages of the reporter’s transcript. The judge asked the witness many questions during the trial. The contention that the judge abused his discretion by permitting the girl to testify is wholly without merit.

Appellant also contends that “the judgment” is unsupported by the evidence. In her testimony the girl related facts which were legally sufficient to prove that defendant on three occasions violated said section 288. Defendant testified that on one occasion he placed his hand on her body while applying vaseline to relieve a soreness. 'He denied that he touched her on other occasions. No useful purpose would be served by reciting the testimony in detail. Factual issues were presented for the determination of the trial court. The evidence was sufficient to support the findings.

Since there was no judgment from which an appeal could be taken, the purported appeal from final judgment should be dismissed.

The order denying the motion for a new trial is affirmed. ' The purported appeal from the judgment is dismissed.

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Bluebook (online)

228 P.2d 852, 103 Cal. App. 2d 1, 1951 Cal. App. LEXIS 1114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-barton-calctapp-1951.

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