Guiterez

The defendant was convicted under section 288 of the Penal Code of lewd and lascivious conduct toward a child. Oh appeal it is contended the verdict is not supported by competent evidence; that the defendant was coerced to furnish evidence against himself by unwillingly submitting to a physical examination; that the prosecuting officer and the trial judge were guilty of prejudicial misconduct, and that the court erred in giving to the jury and in refusing to give certain instructions.

It is conceded the child, Julia Donati, who was but five years of age, was incompetent to testify as a witness. At the trial it was not possible to persuade her to answer ques tions. After a fruitless effort to induce her to speak, the court said: “Let the record show the court finds that the child is evidently nothing but a mere baby yet, . . . and does not respond to the court’s questions. . . . She does not appear to understand what the proceedings are all about.” Thereupon the child’s mother was sworn and testified to circumstances which were related to her by the child constituting lewd and lascivious conduct on the part of the defendant. It is now contended this testimony of the mother is…