Levoy

Appellant was tried and convicted on information charging him with the violation of section 288 of the Penal Code, which defines as a felony certain lewd and lascivious acts upon the body of a child under the age of fourteen years. After the jury was impaneled and sworn to try the ease, and before any witnesses were sworn, the court interrogated the little girl who was the subject of the alleged attack for the purpose of determining whether she was qualified to appear as a witness. The court having satisfied itself that she was competent to testify, instructed the clerk to swear her as a witness. She was thereupon sworn and testified to the facts which were the basis of the prosecution. She was followed by her mother who corroborated her in certain particulars, and the people rested. The defendant took the stand in his own behalf and denied in particular all the testimony of the prosecution’s witnesses. There was no evidence of any character attempting to prove the age of the child, and this is the ground which is assigned for the reversal of the judgment.

Under the provisions of section 288 of the Penal Code it is essential that the subject of the attack must be a child under…