Harlan

Defendant was, by information filed charging him therewith, convicted of the offense defined in section 288 of the Penal Code and sentenced to prison for a term of five years.

He prosecutes this appeal from the judgment and order of court denying his motion for a new trial.

As stated in the information, the act constituting the crime occurred on April 3,1915. As usual in such cases, the verdict is based upon the uncorroborated testimony of the prosecutrix, a girl twelve years of age, who was the step-daughter of defendant.

Notwithstanding defendánt was charged with an alleged act committed on April 3d, the district attorney, as he might do, in presenting the case first proved the commission of a similar act claimed to have been committed on April 17th. After presenting in full detail the occurrences of April 17th, he then directed the attention of the witness to alleged acts of defendant constituting the same offense committed on April 3d; whereupon defendant’s counsel demanded that the district attorney make an election as to which particular act (that committed on April 3d or that committed on April 17th) he relied upon for a conviction of defendant, to which the trial judge…