People v. Carpenter

[727]

McMUKRAY, J. pro tern.

*

This is an appeal from an-order denying a motion for new trial and from the judgment entered upon the jury’s verdict of guilty of violating section 288 of the Penal Code.

Viewing the evidence in a light most favorable to the People (respondent) the facts are that on July 2, 1954, defendant, a 64-year-old man, committed rape upon the person of an 8-year-old girl who made no outcry or complaint at the time of the offense nor until a vaginal infection was discovered on July 7, 1954, at which time she was examined by a physician.

The act took place in a toilet on the back porch of the home in which defendant and the victim both lived and was accomplished in the presence of a 2-year-old girl who had accompanied the victim to the toilet.

Appellant urges that the victim was incompetent to act as a witness; that the evidence is not sufficient to support the verdict and that the verdict was based on passion and prejudice.

The question of the competence of a child to testify is governed by section 1880, subdivision 2, of the Code of Civil Procedure, which reads as follows:

“The following persons cannot be witnesses:

“2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.”

The right to make the determination as to the competence of a child under 10 rests with the trial judge and where, as here, he examines the child for competence and thereafter testimony is received without objection, “. . . any objection to the witness’ competency will be deemed to have been waived and cannot be considered for the first time on appeal.

(People

v.

Singh,

182 Cal. 457, 484 [188 P. 987];

People

v.

Collins,