State v. King

• Decision Date: 08 October 1902
• Citation: 91 N.W. 768,117 Iowa 484
• Parties: STATE v. KING.
• Court: Iowa Supreme Court

117 Iowa 484

91 N.W. 768

STATE

v.KING.

Supreme Court of Iowa.

Oct. 8, 1902.

Appeal from district court, Buena Vista county; W. B. Quarton, Judge.

The defendant was accused of having committed rape, and from judgment of conviction appeals. Reversed.F. F. Faville and T. H. Chapman, for appellant.

Chas. W. Mullan, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

LADD, C. J.

When a child under 14 years of age is called as a witness, the preliminary inquiry should be directed solely to ascertaining whether sufficient capacity is possessed to understand the obligation of an oath. Above that age every person is presumed, until the contrary appears, to have common discretion and understanding. No presumption prevails in favor of the competency of one under 14 years of age. Anciently, a child of less than 9 years was conclusively presumed incapable, but all modern decisions seem to declare intelligence, and not age, the proper test. See State v. Whittier, 21 Me. 341, 38 Am. Dec. 272. Under our statute, “every human being of sufficient capacity to understand the obligation of an oath is competent as a witness except as otherwise declared.” Section 4601, Code. Facts which formerly caused the exclusion of testimony are now shown for the purpose of lessening credibility. Section 4602. Intelligence, then, and not belief, nor the power of moral perception, is the test. White v. Com., 96 Ky. 180, 28 S. W. 340; Com. v. Carey, 2 Brewst. 404. Treatment of knowledge of God and the elementary precepts of Christianity as controlling seems to rest, in part, at least, on the old rule exacting faith as one of the necessary qualifications to give testimony. Beason v. State, 72 Ala. 191;State v. Michael, 37 W. Va. 565, 16 S. E. 803, 19 L. R. A. 605;State v. Belton, 24 S. C. 185, 58 Am. Rep. 245;State v. Washington, 49 La. Ann. 1602, 22 South. 841, 42 L. R. A. 553. These matters may well be considered in measuring the minor's intelligence, for religious training in early childhood is the rule, rather than the exception, in this Christian land. Evidence of the extent of their appreciation may materially aid in estimating capacity, but it is not to be regarded as decisive. A child is to be no more rejected as a witness because of not having heard of God, the Devil, or the Saviour, than a person of maturity with such knowledge, but without belief in their existence. Ordinarily, the attention of a person of immature age is not directed to controversies calling for judicial investigation, and, when it does become necessary to use them as witnesses, instruction is essential that they may know precisely what the law exacts. It is not so material when this is given,––whether shortly before the trial or during its progress. It is material that the meaning and obligation of the oath be appreciated and comprehended. State v. Todd, 110 Iowa, 632, 82 N. W. 322. Indeed, causes have been held properly postponed for the purpose of thus instructing a witness. Com. v. Lynes, 142 Mass. 577, 8 N. E. 408, 56 Am. Rep. 709. Contra, Tayloe v. State, 22 Tex. App. 529, 3 S. W. 753, 58 Am. Rep. 656. As capacity to understand, and not the character of the child's training, is the test, it can make little difference when instruction has been given. It is the better practice, however, to advise the proposed witness long enough before the trial to permit of reflection on the character and responsibility of the new situation in which he is to be placed. The decision as to capacity is primarily for the judge, though the evidence adduced may be considered by the jury, in connection with the age of the witness, his understanding and sense of moral accountability, in passing upon the value of the testimony subsequently given on the merits. The court sees the witness, notices his manner, observes the apparent degree of intelligence and maturity of mind; and, as these matters cannot be photographed in the record, its decision will not be disturbed unless clearly erroneous. Wheeler v. U. S., 159 U. S. 523, 16 Sup. Ct. 93, 40 L. Ed. 244;State v. Juneau, 88 Wis. 180, 59 N. W. 580, 24 L. R. A. 857, 43 Am. St. Rep. 877;Com. v. Robinson, 165 Mass. 427, 43 N. E. 121;Davidson v. State, 39 Tex. 129;State v. Richie, 28 La. Ann. 327, 26 Am. Rep. 100;State v. Michael, 37 W. Va. 569, 16 S. E. 803, 19 L. R. A. 605, and note.

2. The prosecutrix was 12 years of age, and, though all she knew of the obligation of an oath had been told her by the attorney for the state, her comprehension was such as to fully vindicate the ruling of the court in receiving her testimony. Her sister was 10 years old. She stated that the attorney of the state had told her, a few minutes before being called, that if she held up her right hand before the court it meant that she was to tell the truth, and would be punished if she did not. She further said: “As a matter of fact, I don't know anything about it myself. I never was in court before. I don't know what the word ‘testimony’ means. * * * He told me a few minutes ago that it meant what I said. And he told me to tell you this. I do not know what the word ‘evidence’ means. He told me to tell you that an oath means that I shall tell the truth, and, if I didn't, the law can punish me. He didn't tell me how I would be punished. He simply told me, if the question was asked me, that is what I was to say, and stick to it. I don't know anything about it myself. I don't know what you mean by an ‘obligation.’ ” It is very clear that this examination, while it indicated sufficient memory, had little bearing on her capacity to understand the obligation of an oath. She was able to repeat, with phonographic precision, what had been told her, but with no apparent conscientiousness of the obligation that rested upon her by reason of having been sworn. Her understanding of the obligation of an oath was not touched, save wherein she declares her ignorance of the meaning of words. As she was but 10 years of age, there was no presumption of competency, and it was the duty of the court, when the witness was offered, and her competency questioned by proper objections, to ascertain whether she had sufficient intelligence to meet the requirements of the statute. People v. Bernal, 10 Cal. 66;State v. Richie, 28 La. Ann. 327, 26 Am. Rep. 100;Carter v. State, 63 Ala. 52, 35 Am. Rep. 4;Brown v. State, 2 Tex. App. 115;State v. Whittier, 21 Me. 341, 38 Am. Dec. 272;Hughes v. Railway Co., 65 Mich. 10, 31 N. W. 603;Blackwell v. State, 11 Ind. 197. See Gaines v. State, 99 Ga. 703, 26 S. E. 760;Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174; 16 Am. & Eng. Enc. Law, 267. It may be the witness possessed the requisite capacity, but, if so, that fact should have been developed before receiving her testimony.

3. The prosecutrix testified that defendant first had intercourse with her at her home, and, over objection, that this was repeated a week or 10 days later in a grove near by. Thereupon, and also immediately after all the evidence was introduced, the defendant asked that the state be required to elect for which offense it would prosecute. These requests were denied. Error is assigned––First, to receiving evidence of the second offense; and, second, for not requiring the state to elect. Ordinarily, evidence of other offenses, distinct from that alleged, may not be received; but to this rule there are well–established exceptions. One class of these is explained in State v. Brady, 100 Iowa, 191, 69 N. W. 290, 36 L. R. A. 693, 62 Am. St. Rep. 560. Another involves the relation and disposition of the parties toward each other. Thus, in prosecution for adultery and incest, familiarity, and even acts of incontinence, may be proven after, as well as before, the commission of the offense charged. State v. Briggs, 68 Iowa, 416, 27 N. W. 358; Same v. More (Iowa) 88 N. W. 322; Same v. Hurd, 101 Iowa, 391, 70 N. W. 613. Should this rule be extended to cases of rape? In People v. O'Sullivan, 104 N. Y. 483, 10 N. E. 880, 58 Am. Rep. 530, evidence of an assault to commit rape four days previous was held admissible on the same principle that proof of previous threats or attempts to kill is admitted in a murder case. In State v. Knapp, 45 N. H. 148, evidence of previous solicitations was admitted as tending to show a lustful intent towards the prosecutrix. In People v. Abbott, 97 Mich. 486, 56 N. W. 862, 37 Am. St. Rep. 360, proof of intercourse with prosecutrix under the age of consent was held proper for the purpose of showing the relation of the parties and the opportunity had of meeting her. See, also, Strang v. People, 24 Mich. 6. In Hamilton v. State (Tex. Cr. App.) 37 S. W. 431, testimony of other intercourse with prosecutrix, who was under the age of consent, was admitted “to show the probability that the defendant committed the offense charged, and...