
    The People of the State of New York, Respondent, v. James Hemphill, Appellant.
   Memorandum: There seems to be no doubt, but that the complaining witness, Lillian Stoll, was, at the time of the alleged commission of the crime charged in the indictment, and at the time of trial, of the age of twelve years. Count one of the indictment so charged, and stated; her mother testified that she was born on February 24, 1942; the complaining witness herself testified in two instances that she was of the age of twelve years. She was not, therefore, a child under the age of twelve years, so as to permit her testimony to be taken unsworn, after an examination as provided by section 392 of the Code of Criminal Procedure. In our judgment it was reversible error, to allow the jury to consider the unsworn testimony of the complaining witness, and for that reason the conviction must be set aside and a new trial granted. All concur. (Appeal from a judgment of Erie County Court convicting defendant of the crime of assault, second degree.) Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.  