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District Court of Appeal, Second District, Division 1, California.


Cr. 2554.

Decided: November 14, 1934

Willis O. Tyler, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Bayard Rhone, Deputy Atty. Gen., for the People.

Defendant was convicted by jury verdict of contributing to the delinquency of a minor by giving her intoxicating liquor. Motion for a new trial was made and denied.

Appellant states his points on appeal as follows, to wit: (1) “Whether there is sufficient credible evidence to sustain the verdict,” and (2) “whether there was not misconduct at the trial at the proceedings had when the jury returned from deliberating and sought the reading of further testimony.”

Appellant concedes the law to be that: “This court will not reverse a judgment given upon a verdict unless there is no evidence to support it, or when the evidence relied upon to uphold it is so inconsistent or improbable as to be incredible, or when it so clearly and unquestionably preponderates against the verdict as to convince the court that it was the result of passion or prejudice on the part of the jury.” People v. Niino, 183 Cal. 126, 190 P. 626.

No good purpose would be served by a recital of the testimony. It will suffice to say that there was a conflict in the testimony, that the testimony of the minor is corroborated in many material parts, and that, although the transcript of all the testimony has been read with care, we find nothing incredible in the testimony of the minor.

Appellant, in his brief, complains of certain statements which he states were made by the deputy district attorney in her opening argument but which, in fact, were made in the closing argument and to which no objection was made at the time in the trial court. These statements are: “Ladies and gentlemen of the jury, if I have my own opinion as to what motive he had they wouldn't let me give it to you, and I haven't any right to give it to you even if he asked me,” and, “And what that motive was, whether it was Christmas spirit, or whether it was a motive to see just how much liquor she could hold, ladies and gentlemen, is not a problem here.” These statements apparently were responsive to argument by defendant's counsel and were prefaced by “Mr. Tyler also asked what motive would this defendant have to have given this girl intoxicating liquor.” We see no error therein.

Some time after its retirement to the jury room for deliberation upon its verdict, the jury returned into court and asked for certain information concerning some of the testimony. Portions of the testimony of several witnesses were read by the reporter. Immediately following said reading, the transcript discloses the following:

“The Court: Do you want anything else read? (No response.)

“The Court: Satisfactory to the defense?

“Defendant's attorney: Yes, your Honor.

“The Court: Are the people satisfied?

“Deputy District Attorney: Yes, your Honor. (Jury retires to deliberate on their verdict.)”

The reading of the reporter's notes was for testimony concerning the time of the minor's departure from defendant's store and the time of her arrival at her home. The reporter read the following from defendant's testimony: “Q. How long do you think she was in the store? A. I judge about 25 minutes.” And the reporter then stated: “I find nothing else in his testimony regarding the time.” The reporter overlooked a statement made by defendant as follows: “I figure that Miss - had left about 4:15, something like that * * *.” Appellant contends that the failure to read this was prejudicial error. Taking consideration of all the evidence in the case, we do not consider this a prejudicial error.

Oral notice of appeal was given from the order denying the motion to dismiss. Appellant's brief makes no reference to such order. The clerk's transcript shows a motion to dismiss made before sentence was pronounced and therefore the order thereon is not an appealable order. Section 1237, Pen. Code.

The judgment and order denying the motion for a new trial are affirmed, and the purported appeal from the order denying the motion to dismiss is dismissed.

ELLIOT CRAIG, Justice pro tem.

We concur: HOUSER, Acting P. J.; YORK, J.

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