Lopez

Defendant was charged with committing the offense designated in section 288 of the Penal Code and, upon conviction thereof, appealed from the judgment of imprisonment which followed.

The prosecuting witness was a female child, six years of age and the stepdaughter of defendant, with whom and her mother she was accustomed to occupy the same bed. The act with which defendant is charged is alleged to have occurred about a month prior to the filing, of the information. The verdict is based largely upon the child’s testimony, given through an interpreter, to the reception of which evidence, on account of her tender years and lack of intelligence, counsel for defendant unsuccessfully urged objections.

[1] Subdivision 2 of section 1880 of the Code of Civil Procedure provides 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. It thus appears that the disability is applicable alone to such children as appear incapable of receiving just impressions of facts, and when objection is made to the competency of a child under ten years of age to testify, it…