People v. Jackson

[182]

ASHBURN, J.

Defendant was convicted, in a nonjury trial, of violating section 288 of the Penal Code.

1

The lewd and lascivious acts of which he was convicted were committed upon the body of his 8½-year-old daughter.

The only question here raised is whether the trial court abused its discretion in permitting the child to testify. Relying upon

People

v.

Bernal,

10 Cal. 66, appellant contends that the witness did not appreciate the “nature, obligation and solemnity of an oath.” Section 1880, Code of Civil Procedure, provides that children under 10 years of age cannot be witnesses if they “appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.” Under this section it is the duty of the trial judge to determine whether a 'child under 10 years is a competent witness.

(People

v.

Loignon,

160 Cal.App.2d 412, 418 [325 P.2d 541] ;

People

v.

Ernst,

121 Cal.App.2d 287, 290 [263 P.2d 114].)

Upon stipulation, the case was submitted upon the transcript of the preliminary examination, subject to the right to present further evidence. The record shows that, at the preliminary hearing, the child was called as a witness by the prosecution; an examination was conducted by the court at the conclusion of which the judge determined that “she is qualified to testify.” No attempt to challenge the competency of this witness was made during this examination, and the witness proceeded to testify without any objection on the part of appellant.

“ The right to make the determintion 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.