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District Court of Appeal, Second District, Division 2, California.


Cr. 3583.

Decided: July 16, 1942

Gladys Towles Root, of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Bayard Rhone, Deputy Atty. Gen., for respondent.

Defendant was convicted after trial before the court without a jury of violating section 288 of the Penal Code. This appeal is from the judgment and order denying his motion for a new trial.

The evidence being viewed most favorably to the People (respondent), the essential facts are:

In the spring of 1940 defendant on two separate occasions committed an act prohibited by section 288 of the Penal Code, to wit, he kissed the private parts of the prosecuting witness, a female of almost twelve years of age.

Defendant urges for reversal of the judgment two propositions, which will be stated and answered hereunder seriatim.

First: The evidence is insufficient to sustain the judgment.

This proposition is untenable. We have examined the record and are of the opinion there was substantial evidence considered in connection with such inferences as the judge may have reasonably drawn therefrom to sustain the facts hereinabove mentioned and each and every other material fact upon which the judgment of guilty was predicated. For example, the prosecuting witness testified that on two separate occasions defendant committed acts interdicted by section 288 of the Penal Code. Inconsistencies and discrepancies in the testimony of the prosecuting witness are matters for the sole consideration of the trial judge and, where, as in the instant case, there is substantial evidence to support the trial judge's findings, this court will not disturb them because of inconsistencies or discrepancies in the testimony of the prosecuting witness. (See People v. Pianezzi, 42 Cal.App.2d 265, 269, 108 P.2d 732, for a full statement of the applicable rule.)

Second: The trial court committed prejudicial error in receiving certain evidence.

This proposition is likewise untenable. After the first trial of the present case, this court reversed a judgment by which defendant was convicted and ordered a new trial. (People v. Huston, 45 Cal.App.2d 596, 114 P.2d 607.) Upon the second trial defendant, his counsel, and the district attorney, waived a jury trial and the case, by stipulation of both parties, was submitted to the trial judge upon the transcript of the testimony of the first trial, excepting therefrom the testimony which this court had held to be inadmissible. By this stipulation defendant waived any objection to any other evidence which was contained in the transcript, it being the general rule that a party waives an objection to the introduction of evidence unless such objection is interposed in the trial court. An objection to the introduction of evidence may not be made for the first time on appeal. (10 Cal.Jur. (1923) 824, § 111; Hurd v. Walker, 9 Cal.App.2d 525, 527, 50 P.2d 1074.)

For the foregoing reasons the judgment and order are and each is affirmed.

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concurred.