Peters v. State, 63 So. 666

Peters v. State

63 So. 666 | Miss. | 1913

Smith, C. J.,

delivered the opinion of the court.

Appellant was convicted of the rape of a six-year-old girl. This girl was introduced as a witness on behalf of the state and testified without objection. The court was not requested to and did not inquire into the question of *337her capacity to give testimony. Her testimony in chief, while not specifically addressed thereto, showed no want of testimonial qualification. On cross-examination, however, her answers to several very ludicrous questions tended to show that she did not know what the meaning of the word “truth” was. When the state rested its case, appellant made a general motion to exclude all of the evidence and for a peremptory instruction charging the jury to find him not guilty. One of the grounds of this motion was: “Because the testimony of the witness, Alice Williams, is incompetent because she is not shown to be such a witness as can testify in this cause on account of her age and mental condition.” This motion was overruled, and the action of the court in so doing is assigned for error.

The question of the capacity of a witness to give testimony cannot be raised in this method. It must be raised while the witness is on the stand so that the court may have an opportunity of inquiring into and correctly deciding it. If we concede, however, for the purpose of the argument, that this question was properly raised, the result must be the same. A child six years of age is not merely by reason of that fact disqualified as. a witness (Trim v. State, 33 So. 718); and, under section 1919 of our Code, religious belief, or want of it, constitutes no disqualification. According to Mr. Wigmore, it “may be taken as settled that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated.” 1 Wigmore on Evidence, section 505. All that is required to qualify a child as a witness, is that it should have sufficient capacity to observe events and to recollect and communicate them. In determining its capacity for communication, ‘ ‘ there are two elements to be .taken into consideration: (a) There must be a capacity to understand questions put and to frame and express intelligent answers, (b) There must be a sense of moral responsibility, a con*338sciousness of the duty to speak the truth.” 1 Wigmore on Evidence, section 506.

These are all questions of fact, the decision of which, in the language of Mr. Justice Bbbweb in Wheeler v. U. 8., 150 U. S. 523, 16 Sup, Ct. 93, 40 L. Ed. 244, “rests primarily with the trial judge, who sees the proposed witness,- notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous.”

Affirmed.