113 Mich. 367 | Mich. | 1897
The defendant was convicted of the offense of taking indecent and improper liberties with the person of a female child, without committing or intending to commit the crime of rape, upon an information which contained a proper count charging such offense, and also a count for rape. The child was six years of age, and the only evidence supporting the charge was her unsworn statement, and the testimony of her mother, to whom she is said to have related the affair immediately after its occurrence.
Error is assigned upon the admission of the statement of the child. Previous to hearing her statement, the mother and . child were taken by the judge into his private room for the purpose of ascertaining whether she had sufficient intelligence, and sense of obligation to tell the truth, to be safely permitted to testify, as provided by 3 How. Stat. § 7546a. On their return into court, the following dialogue occurred:
‘ ‘ Examined by the Court: Q. What are you going Jbo do, Georgia,> now ? What did you go up in the chair for ?*369 Do you know ? Can you tell ? Can you tell now, or are you afraid? What was Dr. Root doing up there just a little while ago ? Do you know what he was doing ? Do you know what those men over there are there for ? Can’t you tell? Can’t you tell how long you are going to stay down here today? Do you think you could talk to Mr. Gardner, if he would talk to you, better than you can to me?
“A. Yes.
“ Q. Do you know Mr. Hemans, — that gentleman that sits over there beyond the table ?
“A. Yes, ma’am.
“ Q. Do you know what it means to tell the truth? Do you know that ?
“A. Yes, ma’am.
“ Q. What would happen to you if you did not tell the truth? What do you suppose would be the trouble? What do you think would happen to you if you should not tell the truth? Would it make any difference whether you told the truth or not? Do you know? (Nods her head, yes.)
“ Q. Well, what would happen to you if you should not tell the truth? Would you be afraid to tell a lie? (Nods her head, no.)
“ Q. Now, if Mr. Gardner should talk to you about something here, will you promise me to tell the truth?
“A. Yes, ma’am.
“ The Court: I think you may examine her under the promise, not under oath; she is not competent.
“Mr. Hemans: I should like to interpose an objection to the statement of the child, as incompetent.
“The Court: Yes; but the statutes say, ‘To its own satisfaction.’ When the court has ascertained to its own satisfaction that such child has sufficient intelligence and sense of obligation to tell 'the truth, it would be safe to admit it to testify. I will say here it is a matter of very serious doubt, so far as the idea of testimony is concerned. It is received here more as showing a condition, or showing surroundings here; and I say to the jury that they may be very careful in their consideration of the matters, and pay attention and know what occurs, and the circumstances, and all about what appears before you here in the examination of this child. You may proceed, Mr, Gardner.”
We think it was proper to submit the case upon both counts, as the jury, if not satisfied that a rape was committed or intended, might, under the proof, find that a felonious assault was committed.
It was not material to this prosecution to show that the child had stated that she had previously been subjected to similar treatment by another person. Moreover, it was hearsay. But we can see no possible harm to the defendant in its admission, as he was not connected with the affair in any way.
The judgment is affirmed.