Ashley v. State

124 Ga. App. 387 | Ga. Ct. App. | 1971

Pannell, Judge.

The defendant was indicted, tried and convicted of the offense of child molestation. His motion for new trial was overruled and he appealed to this court, enumerating as error the admission of testimony of a five-year-old child on the ground that she was incompetent as an infant under Code § 38-1607, which provides that "children who do not understand the nature of an oath, shall be incompetent witnesses.” The only evidence relating to her competency in this respect was as follows: "Q. Do you know about God? A. (Nods affirmatively). Q. What will God do if you tell a story? A. I don’t know ... Q. Do you know the meaning of telling the truth and telling a story? A. (Nods negatively) ... Q. Do you know what it means to tell the truth? A. (Smiles). Q. Have you ever told a story? A. (Nods negatively). Q. You have not. You tell the truth? A. (Nods affirmatively). Q. What happens if you tell a story? A. (Shrugs shoulders). Q. Do you get a whipping? A. (Smiles).” While this examination and the answers given thereto might show that the witness had knowledge there was a difference between telling the truth and not telling the truth, it does not show that she had any knowledge that telling the truth was right and telling an untruth was wrong. Under these circumstances, it is our opinion that the trial judge erred in finding the witness competent. See in this connection Page v. State, 120 Ga. App. 709 (172 SE2d 207); Johnson v. State, 76 Ga. 76; Bell v. State, 164 Ga. 292 (138 SE 238); Young v. State, 72 Ga. App. 811 (35 SE2d 321); Gordon v. State, 186 Ga. 615 (198 SE 678); Reid v. Moyd, 186 Ga. 578 (198 SE 703); Frasier v. State, 143 Ga. 322 (2) (85 SE 124); Vickery v. State, 48 Ga. App. 851 (2) (174 SE 155); Edwards v. State, 162 Ga. 204 (132 SE 892); Horton v. State, 35 Ga. App. 493 (133 SE 647); Brewer v. James, 76 Ga. App. 447 (46 SE2d 267).

Argued June 28, 1971 Decided September 7, 1971. Atkins & Atkins, Dorothy D. Atkins, for appellant. Lewis R. Slaton, District Attorney, Carter Goode, William M. Weller, Joel M. Feldman, for appellee.

Judgment reversed.

Bell, C. J., and Deen, J., concur.