People v. Birch

Judgment of conviction reversed on the law and facts and a new trial granted. Memorandum: Under the circumstances before us and in view of the presumption of law that a child under the age of twelve years is not competent to be sworn as a witness (People v. Klein, 266 N. Y. 188), the court was called upon to conduct a proper preliminary examination of the witness to determine whether or not the presumption of disqualification had been overcome. In our opinion the preliminary examination of the nine-year-old complainant was quite inadequate. We also feel that the charge was inadequate in that…