Feary

The defendant was convicted of the crime of lewd and lascivious conduct with a child, his daughter, then of the age of nine years. This appeal is from the judgment and the order denying a new trial.

At the trial the child positively denied that the defendant committed any of the acts charged. On the ground that he was taken by surprise by such denial, the district attorney was permitted to prove by the testimony of the girl and that of other witnesses that at other times she had stated that the defendant had committed such acts. In admitting this testimony the court stated that it was admitted for the purpose of contradicting the girl’s testimony given at the trial to the effect that the defendant had not committed such acts, “to impeach and wipe out that testimony; and that is the only effect and purpose that this testimony can have, is to wipe out her previous testimony, if the jury so believe that it does, but it is not for the purpose of showing the fact itself.” It is elementary, of course, that the girl’s extrajudicial statements were inadmissible to prove any element of the crime charged. Appellant contends that there is no other evidence to support the verdict. At the…