Fernandez

Defendant was charged by information with having feloniously assaulted one Stephini Granado, a female child about seven years old, with intent to commit rape. He was convicted and sentenced to imprisonment in the state prison for the period of six years, and appeals from the order denying a new trial and from the judgment of conviction.

1. It appeared by evidence that the child was living with her uncle, Eduardo Enriquez, and his wife, Altagratio Enriquez. Sometime after the noon hour of October 17, 1905, Eduardo was at his work of clearing some ground from timber near his home, and, needing the help of his wife, called her to him. Soon thereafter she returned to the house, and, looking in, saw a man apparently in sexual contact with this child. The wife called to her husband, who came at once. The man ran away as soon as he was surprised.by Altagratio. One of the strongly contested facts in the case,' as to which the evidence is by no means clear, was whether either the husband or wife recognized the alleged assailant of this child. Altagratio testified that she saw the accused in the act of making the assault, and testified to circumstances tending to corroborate the fact of an…

I concur, but base my concurrence wholly on People v. Keenan, 13 Cal. 581 , and People v. Green, 99 Cal. 564 , [ 34 Pac. 231 ], which I deem as binding on this court.