177 Ind. 14 | Ind. | 1912
Appellant was tried on an indictment charging him with assault and battery on a female child under the age of sixteen years, to wit, of the age of seven years, with the unlawful and felonious intent to ravish and carnally know said child, in violation of §2240 Burns 1908, Acts 1905 p. 584, §352. He was acquitted of the intent charged, and found guilty of assault and battery only. The crime of rape on a female child under sixteen years is defined by §2250 Burns 1908, Acts 1907 p. 85. The only error assigned in this court is that the court erred in overruling appellant’s motion for a new trial.
At the time of the trial the female child on whom the crime is alleged to have been committed was about seven years and eleven months old. After an examination in regard to her capacity to testify, the court determined that she was competent to testify under §520, subd. 2, Burns 1908, §497 R. S. 1881, which provides that children under ten years of age are incompetent to testify “unless it appears that they understand the nature of an oath.” Over the objection of appellant that she was incompetent, said witness was permitted to testify, and after the conclusion of her testimony, appellant moved to strike it out, for the reason “that her examination shows that she has not sufficient knowledge of the oath to testify in a case of this kind. ’ ’ This motion was overruled by the court.
In Blackwell v. State, supra, this court said on page 198: “But we must, in this case, presume in favor of the action of the circuit court, for the reason that that court had the proposed witness in its presence, and was, therefore, enabled to estimate, to some extent, her capacity, from her appearance, and the manner of her replies-in the examination.”
It is settled law in this State, that in eases where a witness is contradicted by evidence of statements, whether at a former trial or not, different from those made at the trial, and the contradiction is for the purpose of impeachment, the party by whom the witness was called may prove state
This rule, however, does not authorize the admission of all prior statements of the witness in harmony with his testimony at the trial, but, as we have already said, only such as are in harmony with the part of his testimony which has been contradicted. When, as in this case, the alleged contradiction is by giving in evidence statements of a witness at a former trial, this does not authorize the party calling the witness to give in evidence all the testimony of such witness at the former trial, but only so much thereof as explains, modifies or is necessary to enable the court or jury trying the cause to understand the statements introduced to impeach the witness. Culver v. South Haven, etc., R. Co. (1904), 138 Mich. 443, 446, 101 N. W. 663; Colby v. Reams (1909), 109 Va. 308, 63 S. E. 1009; Rudy v. Myton (1902), 19 Pa. Super. Ct. 312; Thornton v. State (1901), 65 S. W. (Tex. Cr.) 1105, 1108; Noyes v. Gilman (1880), 71 Me. 394; Whitman v. Morey (1885), 63 N. H. 448, 2 Atl. 899; Casey v. State (1906), 50 Tex. Cr. 392, 97 S. W. 496; Falkner v. State (1907), 151 Ala. 77, 44 South. 409; Hicks v. State, supra.
While the State was entitled to prove by said stenographer all that part of the testimony of the prosecuting witness at the preliminary trial before the mayor that modified, explained or was necessary to enable the jury fully to understand the part thereof given to impeach her at the trial in the court below, it was error to permit the State to give in evidence any other testimony of said prosecuting witness at the preliminary trial.
■ Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.
