People v. Walker

[147]

WORKS, P. J.

Defendant was convicted upon a charge of violating the provisions of section 288 of the Penal Code hy committing a lewd and lascivious act upon the person of a little girl. He appeals from the judgment and from an order of the trial court denying his motion for a new trial.

The alleged victim of appellant was five years of age on April 30th, it was charged in the information that appellant committed the crime upon her on May 16th, and the trial of the charge commenced on August 5th, all in 1930. It is provided by section 1880 of the Code of Civil Procedure that “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”, cannot be witnesses. The little girl in question here was tendered as a witness, the trial judge subjected her to what we cannot but regard as a perfunctory -examination in order to determine whether she rested under either of the disabilities mentioned in the statute, and at the end of the examination he concluded that she did not and permitted her to testify. It is now contended that the coiirt erred in allowing her story to go to the jury.

This identical question received a most thorough consideration at our hands nearly ten years ago in

People

v.

Delaney,

52 Cal. App. 765 [199 Pac. 896, 903], and during that lengthy period of time the trial judges and the profession of the state should, have become acquainted with the views expressed in the opinion of the court. Despite that fact, in the present instance the judge, at the conclusion of the examination conducted by him, had not made a record from which he could possibly determine whether the child was sufficiently qualified to occupy the witness chair in a court of justice or whether she was not. It was said in

People

v.

Delaney,

however, that “it is the duty of a judge, at any time after he has determined that a child is a competent witness, to change his mind upon due occasion, remove the child from the witness stand, and instruct the jury to disregard his testimony”. This means that the entire record made by a witness under ten years of age in a particular case is to be scanned in order to determine whether he is competent to testify. If his testimony to the merits of one cause may be examined to nullify the ruling of the trial