10 Haw. 524 | Haw. | 1896
Lead Opinion
OPINION OP THE COURT BY
Tlie defendant was indicted, tried and convicted of the crime of rape on a girl of the age of 5 years, in the First Circuit Court, November term, 1895, and the case is brought to us on defendant’s bill of exceptions.
The principal exception is to the competency of the prosecuting witness, Aimoku, a girl of the age of five years.
The authorities in the United States and England have repeatedly sustained the competency of witnesses of five to seven years of age, and permitted them to make oath or affirm, although such witnesses could not be convicted of perjury, and
There is no precise age within which children are excluded from testifying. Their competency is to be determined, not by their age, but by the degree of their knowledge and understanding. It is essential that they should possess sufficient intelligence to receive just impressions of the facts respecting which they are examined, sufficient capacity to relate them correctly, and sufficient instruction to appreciate the nature and obligation of an oath.
People v. Bernal, 10 Cal. 66.
State of Virginia v. Mitchell, 19 Lawy. Rep. Ann. 605, and notes.
The competency of a child of five years of age as a witness does not depend upon his years, but upon the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as his duty to tell the former. The decision of this question 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. These rules have been settled by many decisions, and there seems to be no dissent among the recent authorities.
Wheeler v. U. S., 159 U. S. 525, and cases cited.
Com. v. Robinson (Mass. 1896), 43 N. E. 121.
But, however, our statutes have provided the authority for receiving the evidence of minors, and the tests necessary to be applied to ascertain their competency.
Chapter 32, Laws of 1876, Section 50 (Comp. Laws p. 375).
(Our attention has been called by Mr. Justice Prear to the omission in the statute (Sec. 50) as printed in the Oomp. Laws, p. 375, of the following words: “as first aforesaid and after he shall have been catdioned by such court or person,” the same being italicised in the above quotation from Ohap. 32, Sec. 50, Laws of 1876, to which chapter and section, in- the future, reference should be specially made to avoid error and misconception.)
The trial judge through the court interpreter, had a preliminary examination of the young witness, the transcript of which is as follows:
Preliminary examination of Aimoku (a native Hawaiian girl of five years of age) by the court—
Q. Aimoku, where do you live?
A. In Kamanuwai.
Q. Where is your mother?
*527 A. Out there.
Q. Have you auy fatter?
A. Yes, sir.
Q. Where is Re?
A. He Ras gone to Maui.
Q. Do you ever go to cRurcR?
A. Ho.
Q. Does your mother ever go to church?
A. Ho.
Q. Do you know whether your father goes to church or not?
A. Ho.
Q. Do you know where Kaumakapili Church is?
A. Yes, sir.
Q. Do you know where Kawaiahao Church is?
A. Yes, sir.
Q. Where is Kawaiahao Church?
A. It is near our place.
Q. Where is the Kaumakapili Church?
A. Our place where we live is in back and Kaumakapili Church is outside our place.
Q. Do you think it is wrong to tell a lie?
A. It is not good.
Q. Hot good to tell a lie?
A. Hot good.
Q. Do you think that you shall always tell the truth or not?
A. Yes, sir.
Q. If you should tell a lie what do you think would happen to you?
A. I don’t know.
Q. Did you ever hear of God?
A. Yes, sir.
Q. Do you know whether or not he loves little children who tell a lie?
A. Ho.
Q. Do you know what he would do with them?
A. Ho.
*528 Q. Do you think he would love little children that didn’t tell the truth?
A. Aole makemake.
Q. If you were taken as a witness in this case, would you uv derstand that you must tell the truth ?
A. Tes, sir.
Mr. Robertson — I think it must be shown that the witness fully understands the nature and object of an oath; she ha® not done so yet.
Q. Do you know when you come here whether or not you hold up your hand and say that you will tell the truth?
A. Yes, sir.
The Court — I shall allow the witness to be sworn.
Mr. Robertson — I object to the witness being sworn in the-case, because it is not shown that the witness understands the nature or object of an oath nor the purpose for which she is-put on the witness stand.
Objection overruled. Exception.
The witness was sworn in the usual form of oath.
I am of opinion that in this case no oath ought to have been administered, for in any case, in order that, an oath or affirmation may be efficient for the purpose, that is, binding on the conscience of the witness, it is necessary that such witness, should at least have some appreciation of its nature and obligation, and such cannot be said of the witness Aimoku.
Our statute specially provides that in these cases no such evidence shall in any case be received unless it shall be proved to the satisfaction of such court or such person that such minor perfectly understands the nature and object of such declaration or affirmation, and the purpose for which his testimony is required.
The trial judge apparently overlooked the last clause of this, law, viz., perfectly understands * * * * purpose-for which his testimony is required,” for I do not find from the statement of the preliminary examination of the witness;
On tRis ground tRe exceptions are sustained and a new trial ordered. TRe otRer exceptions are not necessary to Re considered.
Dissenting Opinion
DISSENTING OPINION OP
I respectfully dissent. It seems to me that the trial court in examining a minor as to Ris competency to testify is not bound to formally put questions to a minor offered as a witness to which affirmative replies must be made that he “perfectly understands the nature and object of Ris declaration” (that Re will tell the truth, &c.), “and the purpose for which Ris testimony is required.” If from the demeanor of the minor, Ris general intelligence — not Ris school education — and Ris sincerity, 'as. shown by Ris answers to the questions put to Rim, the examining' court is satisfied that Re is competent, the statute would be complied with, even though Re was unable to define the “nature and object” of Ris declaration, and “the purpose for which Ris; testimony is required.”
The witness Aimoku substantially complied with the statute when she answered “yes” to the question, “If you were taken as a witness in this case would you understand that you would tell the truth?” and Keala also when she answered “yes” to the question, “If you are sworn here to tell the truth, would you tell the truth?”
In the case before us the presiding judge and the jury were satisfied with the competency of the principal witnesses, Aimoku and Keala, both minors under seven years of age, and made due allowance for 'their extreme youth, their previous surroundings, and I find nothing in their recorded testimony which would show them to be incompetent and unworthy of credit, or that their admission to testify was a gross abuse of discretion. The corpus delicti was proved to the satisfaction of the jury by independent testimony, and we are averse to setting aside the verdict arrived at by honest jurors where no error is manifest, though some might be better satisfied if the preliminary examination of the infant witnesses had been more full.
I do not touch upon the other matters of exception, as it is not necessary, a new trial having been ordered.
Concurrence Opinion
CONCURRING OPINION OP
I concur’ in tRe foregoing conclusion, tRougR witR mucR Resi-tation. Considering tRe extreme youtR of tRe witness and tRe very important part Rer testimony played in tRe case, tRe gravity of tRe offense witR which the accused was charged (the penalty Reing death or imprisonment for life), and the strenuous objections of counsel, as well as the express requirements of our statute and the decisions of courts elsewhere, liberal as. they are in admitting testimony under somewhat similar circumstances, it seems to me that the trial judge did not sufficiently comply with the provisions of the statute regarding the-minor’s understanding of the nature and obligation of the oath that was administered and the purpose for which Rer testimony was required.
