People v. Jackson

• Court: California Court of Appeals
• Writing for the Court: ASHBURN; FOX, P. J., and HERNDON
• Citation: People v. Jackson, 1 Cal.Rptr. 857, 177 Cal.App.2d 181 (Cal. App. 1960)
• Decision Date: 15 January 1960
• Docket Number: Cr. 6778
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Harold Dean JACKSON, Defendant and Appellant.

Page 857

1 Cal.Rptr. 857

177 Cal.App.2d 181

PEOPLE of the State of California, Plaintiff and Respondent, v. Harold Dean JACKSON, Defendant and Appellant.

Cr. 6778.

District Court of Appeal, Second District, Division 2, California.

Jan. 15, 1960.

Gladys Towles Root, Eugene V. McPherson and Robert Barnett, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant was convicted, in a nonjury trial, of violating § 288 of the penal Code. ¹ The lewd and lascivious acts of which he was convicted were committed upon the body of his 8 1/2 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 ten 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 ten 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 determination as to the competence of a child under ten 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, 5 Cal.App. 654, 658, 91 P. 158; People v. Horowitz, 70 Cal.App.2d 675, 696, 161 P.2d 833; cf., People v. Evans, 63 Cal.App. 777, 782, 220 P. 309.)

"In view of the fact that defendant failed to object in the trial court to the prosecuting witness' testimony on the ground that she was not a competent witness, under the above stated rule he has waived the right to urge in this court that it was error for the trial judge to permit her to testify.' People v. Aleshire, 90 Cal.App.2d 506, 509, 203 P.2d 569, 571,' People v. Carpenter, 136 Cal.App.2d 726, 727-728, 289 P.2d 251, 252.

In the instant case, appellant not only failed to challenge or object to the witness' qualifications upon the preliminary examination, but stipulated in the trial court that the People's case in chief could be submitted 'on the testimony taken at the preliminary hearing in this matter with the same force and effect as if the witnesses who were called, sworn and testified there were deemed to have been called, sworn and testified here...