Delaney

Defendant was convicted under an information charging him with lewd and lascivious conduct upon the body of a boy. At the time of the offense, the child victim was not quite four years old; at the date of the trial he had reached the age of about four years and two months. Defendant appeals from the judgment and an order denying his motion for a new trial.

It is objected that the court erred in permitting the boy to testify as a witness in the case, the claim being that, by reason of his immature years, he was incompetent under section 1880 of the Code of Civil Procedure, subsection 2 whereof provides that “children under the age of ten years, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly” cannot be witnesses.

The examination of the boy upon his voir dire, conducted by the court without the assistance of counsel, was meager to a degree. The record shows that the boy was called to the witness-stand by the prosecution, and that the following then ensued: “Q. By the Court: Do you know me? You do not know me, do you? What is your name? A. My name is Junior Seiler. Q. How old are you? A. I am four years…

I concur in the judgment of reversal and in the reasoning upon which the presiding justice concludes that a reversal should result; but as the question before us is one of great importance, I deem it proper to point out other reasons which, in my opinion, show that the trial judge abused the discretion confided to him under the law regulating the competency of children of tender years to testify.

[7] It is to be observed that, under the terms of subdivision 2, section 1880, of the Code of Civil Procedure, there are two separate tests for a determination of the question whether children under ten years of age may be witnesses. They cannot testify if it appears, first, that they are incapable of receiving just impressions of the facts respecting which they are examined; second, that they are incapable of relating those facts truly. It is worthy of remark, however, that each of these tests must he satisfied through a medium which is akin to one of them; that is, through the ability of the child to narrate, considering also such physical manifestations as may accompany narration, gestures, play of features, and the other indicia which will always aid in determining mental dullness or…