McAfee

pro tem. — The defendant was charged with the crime of incest with his daughter Melba, a child of eleven years, on two occasions, the first about the beginning of April, 1926, the second on June 19, 1926; and also with the commission of lewd and lascivious conduct on each occasion in violation of section 288 of the Penal Code.

The information on which the defendant was tried contained four counts, the first and third relating to the occasion in April, the second and fourth to that in June. He was convicted on all four counts; but the attorney-general concedes, justly, that the evidence does not support the conviction under the fourth count — that of lewd and lascivious conduct in June — and that the conviction under that count should be set aside. Attention will therefore be confined to the grounds urged by defendant for a new trial as to the other three counts.

In addition to Ms appeal from the judgment of conviction and the order denying his motion for a new trial, defendant has attempted to include an appeal from an order denying a motion in arrest of judgment. Such order is, however, not an appealable order, and hence needs no further consideration.

Upon the trial the child…