162 Ga. 204 | Ga. | 1926
Lead Opinion
The witness who was permitted to testify over objections' duly made, was only five years of age; and while the court had a preliminary examination made to determine the competency of the child to testify, it does not appear from the answers to the questions propounded that the child was sufficiently matured or intelligent to understand the nature of an oath and the consequences of perjury. The examination and the answers to the questions are substantially as follows: “My name is Mattie Virginia Edwards. I know what it is to tell the truth. . . I am five years old. . . If I don’t tell the truth ‘bad man gets you.’ I held up my right hand out here when
Dissenting Opinion
dissenting. Measured by the common knowledge of mankind, there is muck that may be said for the ruling by the majority. However, when considered in connection with the facts, the ruling in substance means, as we construe it, that a child five years of age is not a competent witness. Our dissent from the ruling is based on our unwillingness to have this court set an arbitrary rule to the effect that a child under five is an incompetent witness in any case, thus taking away that discretion which heretofore has been reposed in the trial court. We concede that it is quite unlikely that a child of the tender age of five years will possess the qualification of a competent witness, but the trial judge saw the witness, heard her testimony, and observed her demeanor, and should be able to know, much better than this court can know, the facts as to her competency. The general rule heretofore stated by this court is as follows: “It is left to the sound discretion of the trial court to determine whether or not a child of tender years is a competent witness; and where the court examines a child as to its knowledge of the nature and sanctity of an oath and decides that it is competent to testify, this