THE PEOPLE, Respondent, v. ANDREW SWENSEN, Appellant

[Crim. No. 741. First Appellate District. May 16, 1918.] THE PEOPLE, Respondent, v. ANDREW SWENSEN, Appellant. Criminal Law—Commission op Lewd Act—Evidence—Explanations op Dependant—Question por Jury—Appeal.-—In a prosecution for the commission of a lewd act upon the person of a child, the truth or falsity of explanations made by defendant as to his situation and conduct is for t'he determination of the jury, and its functions cannot be usurped on appeal. APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George H. Cabaniss, Judge. The facts are stated in the opinion of the court. Thomas P. Wickes, and Karl F. Kennedy, for Appellant. U. S. Webb, Attorney-General, and John H. Riordan, for Respondent. [MAJORITY — THE COURT.] THE COURT. 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 Ms 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.