McIntyre

A jury found James Robert McIntyre guilty of five counts of child molestation (Pen. Code, § 288). Before judgment, the trial court committed him for sexual psychopathy. He appeals from an order denying his motion for a new trial (Pen. Code, § 1237, subd. 2).

McIntyre concedes the evidence sufficiently supports the five guilty verdicts. In substance, he committed lewd and lascivious acts upon three girls, ages 7,10 and 10.

Testifying, McIntyre admitted patting the three girls and kissing one of them; but he claimed he did these things inno eently. To rebut this claim, the district attorney called a rebuttal witness, an 8-year-old child, not a prosecutrix. McIntyre attacks her testimony, claiming: 1) the trial court improperly curtailed his voir dire for competency examination of the witness; 2) the witness was not competent to testify; and 3) the witness’ testimony was improper rebuttal. We set forth his entire voir dire examination of the witness:

The tests of competency are whether “a child possesses sufficient intelligence, understanding and ability to receive and fairly accurately recount his impressions” and whether the child “has an understanding of the nature of an oath…