concurring specially. I can not agree that, because the trial judge, after allowing a preliminary examination of the child witness touching his competency, permitted the witness to testify, "it is to be presumed that the court exercised the discretion conferred by section 5856 of the Civil Code, and adjudged the witness to be prima facie competent to testify,” when the record further shows that, after the examination of the witness, the judge *683remarked, “I will leave it to tbe jury whether he is competent or not.” That the judge did in fact refer the question of the competency of the witness to the jury is further shown by his charge, when, in referring to the witness in question, he used the following language: “You saw the little boy. I leave it to you, gentlemen, to decide, along with the other evidence in the case, whether or not, in your opinion, he is old enough to understand the nature of an oath, to understand what he is doing, where he is, and the condition and character of an oath. The law says a witness is not competent at all as a witness if a child is too young to understand the nature of an oath. If you believe in this case that this little boy does not know anything about an oath, does not understand the nature of it, does not understand what he is doing, does not understand what would be the effect of perjury by him, you would be authorized to say he was not competent as a witness.” In my opinion, it is clear that the learned trial judge, instead of deciding upon the competency of the witness, as required by section 5856 of the code, referred it to the jury. I concur, however, in the' affirmance of the judgment of the court; for, under.all the facts in the case, I do not think that this error was sufficiently prejudicial to the defendant to require the grant of a new trial.