People v. Elroy

California Court of Appeal

People v. Elroy

271 P. 346, 94 Cal. App. 355, 1928 Cal. App. LEXIS 648

CourtCalifornia Court of Appeal

DecidedOctober 18, 1928

DocketDocket No. 1505.

StatusPublished

Cited by1 cases

This text of 271 P. 346 (People v. Elroy) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Elroy, 271 P. 346, 94 Cal. App. 355, 1928 Cal. App. LEXIS 648 (Cal. Ct. App. 1928).

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Opinion

KOFORD, P. J.

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.

*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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KOFORD, P. J.

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.

*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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271 P. 346, 94 Cal. App. 355, 1928 Cal. App. LEXIS 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-elroy-calctapp-1928.

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