People v. Barber , 3 Cal. App. 2d 124 ( 1934 )

3 Cal.App.2d 124 (1934)

THE PEOPLE, Respondent,
v.
DEWEY BARBER, Appellant.

Crim. No. 1811.

California Court of Appeals. First Appellate District, Division One.

December 17, 1934.

Leo A. Sullivan and A. K. Whitton for Appellant.

U.S. Webb, Attorney-General, and Seibert L. Sefton, Deputy Attorney-General, for Respondent.

The Court.

The defendant was charged with an attempt to commit the infamous crime against nature, and has appealed from the judgment of conviction and an order denying his motion for a new trial. He claims that the evidence is insufficient to sustain the verdict.

[1] The testimony shows without conflict that he placed his private parts between the thighs of a boy; that this continued several minutes and was accompanied by movements indicating an attempt to accomplish the crime. While the defendant and the boy testified that there was no penetration the circumstances not only tended to show the contrary, but were sufficient to justify the conclusion the defendant was attempting to commit the crime against nature. The offense might be proved by circumstantial evidence (State v. Vergenadis, 50 Nev. 1 [248 P. 900]; State v. Smith, 137 Mo. 25 [38 S.W. 717]; People v. Singh, 93 Cal.App. 32 [268 P. 958]), and the jury was not, in view of the circumstances, bound to believe the testimony of either the defendant or the boy in the above respect. There was ample evidence to support the verdict, and the order and judgment are accordingly affirmed.