People v. Austin

—A jury found defendant guilty of two sex offenses, committing lewd acts on the person of a child under 14 years of age, (Pen. Code, § 288) and attempted incest. (Pen. Code, §§664 and 285.) Following mentally disordered sex offender proceedings, he was denied probation and sentenced to consecutive prison sentences. This is an appeal from the judgment.

Defendant challenges the sufficiency of the evidence to support his conviction of attempted incest. His daughter testified that, on the evening of February 11, 1965, defendant came into the room where she and her sister slept and got into bed with her. After pulling off the bottom of her night clothes, he started moving up and down on top of her. He attempted to put his penis into her vagina but she prevented him from doing so. This went on for about 15 minutes. When she began to cry and her sister woke up, defendánt got out of bed. The victim’s sister testified she saw defendant get into bed with the victim. An investigating officer testified that, on February 16, 1965, defendant told him, after first being advised of his constitutional rights, that on several occasions he had placed his erect penis between his daughter’s legs and…