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People v. Elroy

94 Cal. App. 355 Court First Appellate District, Division Two. Decision date 1928-10-18 Docket Crim. No. 1505 English

Delivered by KOFORD, P. J.

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p. 355
[Crim. No. 1505.
First Appellate District, Division Two.
October 18, 1928.]
THE PEOPLE, Respondent, v. MELVIN ELROY, Appellant.
The facts are stated in the opinion of the court.
Vincent W. Hallinan for Appellant.
U. S. Webb, Attorney-General, and Emery F. Mitchell, Deputy Attorney-General, for Respondent.

This is an appeal from a judgment of conviction of violating Penal Code, section 288. The sole point upon appeal is that the court erred in permitting a girl nine years and nine months of age to testify against the defendant. Upon examination of this witness by the court she testified that she was nine years old, attended school in the high third grade, that she had testified previously at this trial, that the oath required her to tell the truth and that girls who did not tell the truth would be sent to the reform school. The court thereupon announced his opinion that the witness was qualified and the direct examination proceeded without objection or attempt at cross-examination by the defense as to her qualification.

p. 356
The point is not well taken. This examination, as well as the witness’ testimony as a whole showed her to be qualified within the meaning of Code of Civil Procedure, section 1880, subdivision 2; the fact that she had previously testified could also be taken into account; and, finally, the record fails to show any abuse of discretion on the part of the court in permitting her to testify. (People v. Craig, 111 Cal. 460 , 469 [ 44 Pac. 186 ]; People v. Baldwin, 117 Cal. 244 , 250 [ 49 Pac. 186 ]; People v. Delaney, 52 Cal. App. 765 [ 199 Pac. 896 ] People v. Reyes, 194 Cal. 650 [ 229 Pac. 947 ].)

It is ordered that the judgment be and it is hereby affirmed.

Sturtevant, J., and Nourse, J., concurred.

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