Russell

The district attorney filed an information against the defendant, charging him with having violated the provisions of section 288 of the Penal Code. The defendant entered a plea of not guilty and a trial was had before the trial court sitting with a jury. The jury returned a verdict of guilty. The defendant made a motion for a new trial, but his motion was denied. A judgment based on. the verdict was entered and the defendant has appealed from the judgment and order.

The offense, it is claimed, was committed at a small house or shack at Seventy-seventh Avenue and East Fourteenth Street in Oakland at about 4 P. M. in January, 1926, upon the body of Orpha Miller, a girl of twelve years of age. In presenting its ease the prosecution called as a witness Orpha Miller, who testified to the acts done by the defendant at said time and place. The appellant claims that the judgment should he reversed because of the inherent improbability of the testimony given by the prosecutrix. She was on the stand as a witness a long time. Her testimony covers about two hundred folios. As to the acts and positions of the prosecutrix and the acts and positions of the defendant at the same instant, the…