People v. Carpenter

HOUSER, J.

From a judgment that followed his conviction of a violation of the provisions of section 288 of the Penal Code, as well as from an order by which his motion for a new trial was denied, defendant has appealed to this court. The particular offense of which defendant was convicted was that of the commission by him of an alleged lewd

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■and lascivious act with respect to a female child of the age of six years.

Appellant’s first point is that “the evidence does not justify the verdict”. Although the evidence showed that the alleged offense was committed in broad daylight at a place and in circumstances such as might indicate the improbability of the fact that a crime of the character of that here involved actually had been committed, nevertheless, since the jury that heard the evidence determined the fact adversely to the evidence adduced by defendant with relation to his conduct on the occasion in question; and since, all the evidence considered, this court cannot say that the testimony given by an eye-witness (to say nothing of the testimony given by the alleged victim) to the acts and conduct of defendant was so extraordinary in character as to be absolutely unbelievable;—it necessarily follows that the point made by appellant in that behalf cannot be sustained.

Appellant next predicates prejudicial error upon the fact that, although the child who was the subject of the alleged vicious attentions of defendant was shown to lack proper qualifications as a witness, nevertheless she was permitted to give her testimony.

. It appears that preliminarily to the giving of her testimony, the child was questioned by the judge of the trial court, as well as by the respective attorneys in the case, and that following such examination the court ruled that the child was qualified to give her testimony. Because the child misstated her age; did not know “her birthday”; did not know “what happens to little girls when they don’t tell the truth” (except that when she did not tell the truth, her mother spanked her); and did not know where she lived;—■ it is contended that the ruling made by the trial court was palpable error. But considering the age of the child, even in the absence of other conditions that may have affected her several answers, it was only natural that she might be confused with reference to each of the answers which she gave. It is common knowledge that not only little children, but as well some intelligent grown people, know neither their respective ages nor their “birthdays”. As a certainty, neither a child of six years nor any other person “knows