Allen v. State
| Decision Date | 08 January 1973 |
| Docket Number | No. 5784,5784 |
| Citation | 488 S.W.2d 712,253 Ark. 732 |
| Parties | Curtis ALLEN, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
George Howard, Jr., Pine Bluff, for appellant.
Ray Thornton, Atty. Gen., by Henry Ginger, Deputy Atty. Gen., Little Rock, for appellee.
Curtis Allen, 19 years of age, was found guilty of the rape of an eight-year-old female. The jury fixed the degree at rape in the first degree and the punishment at life imprisonment. Appellant contends that this finding and sentence should be reversed upon the following grounds:
I. The trial court committed error in denying appellant's motion for mistrial.
II. The trial court abused its discretion in permitting the prosecutrix, age 8 years, to testify.
III. Arkansas Statute, Section 41--3401--Degrees of Rape is void for vagueness.
IV. The trial court erred in refusing to transfer appellant's case to juvenile court.
We find no reversible error. We will discuss the grounds for reversal in the order listed.
During voir dire examination of jurors the circuit judge made the statement that the appellant was on trial in a capital case and that the penalty for the crime charged was electrocution or life imprisonment. Appellant's attorney was granted a conference in chambers at which he moved for the declaration of a mistrial. After returning to the courtroom, the judge made the following statement:
The court wants to correct an erroneous statement, and this is especially to the number of the jury that have already been seated and to the prospective jurors, an erroneous statement for the record for the penalty for first degree rape, the penalty for first degree rape is death by electrocution or thirty years to life. The court misstated that while ago and I want to correct that statement.
Appellant's reliance upon Bagley v. State, 247 Ark. 113, 444 S.W.2d 567, to support a reversal here is unwarranted. There this court held that errors in a statement of the trial judge, prior to voir dire examination of jurors, relating to the crime and the jury's options as to punishment were not cured by the judge's explanation of the forms of verdict submitted to them at the conclusion of the trial and instructions about their use by the jury. In Bagley, however, we pointed out that the damage to the defendant could only have been removed by an equally positive statement of correction of a stature equivalent to that of the original erroneous statement. Here that cure was promptly and correctly administered by the trial judge.
The question pertaining to the testimony of the eight-year-old prosecutrix is probably the most difficult one presented. Preliminary examination of the child victim disclosed that she knew where she lived and her birth date, and was in the second grade at Central Elementary School in Dumas. She was later held to be a competent witness, over the objections and exceptions of appellant, after the following questions and answers:
Q. Do you know what it means to tell the truth?
A. Yes, sir.
Q. And will you tell the truth?
A. Yes sir.
Q. Do you know what will happen if you do not tell the truth?
A. Yes sir.
Q. What?
A. You will get punished.
The record discloses that the witness later testified that she attended church and Sunday School regularly and believed in God. Appellant points out that during the course of her examination, the witness failed to answer seven questions, and responded to seven others by nodding her head and to three by strugging her shoulders.
We agree with the state that the record reveals that the witness, through her testimony, gave evidence of her ability to receive, retain and transmit to the jury accurate impressions. Her failure to answer questions usually occurred when she was called upon to name the intimate parts of her anatomy and that of her assailant. The nodding of her head occurred on both direct and cross-examination in response to some material questions and some immaterial ones. In some instances, the material questions had been or were later fully answered by the witness, and others answered by head-nodding were shown to have been affirmative by other testimony of the child indicating her understanding of the questions and an intention to give affirmative answers. One of the shoulder-shrugging answers was accompanied by the words 'I don't know,' and another came when she was asked why her assailant pulled her panties down, and the third had to do with the depth of the penetration. Her conduct in this respect appears to have been little different from that of many adult witnesses who testify in such matters as these.
There has never been a precise age fixed by our law for declaring a child either a competent or an incompetent witness in a criminal trial. The trial court has a wide latitude of discretion in determining the competency of such a witness, the exercise of which will not be disturbed upon appeal in the absence of clear abuse. Harris v. State, 238 Ark. 780, 384 S.W.2d 477. See also, Edington v. State, 243 Ark. 10, 418 S.W.2d 637. With reference to age, we have always, in criminal cases, followed the common law rule that one under the age of 14 years was not to be presumed to have common discretion and understanding required for competency as a witness, and that inquiry should be made of such a proposed witness as to the degree of understanding possessed by him, in order that the court may ascertain whether he appears to have sufficient natural intelligence and instruction to comprehend the nature and effect of an oath to permit him to testify. Payne v. State, 177 Ark. 413, 6 S.W.2d 832; Flanagin v. State, 25 Ark. 92. In Batchelor v. State, 217 Ark. 340, 230 S.W.2d 23, we quoted the rule governing competency of a child's testimony from Hudson v. State, 207 Ark. 18, 179 S.W.2d 165, where we said:
* * * if the child-witness, when offered, has capacity to understand the solemnity of an oath and to comprehend the obligation it imposes, and if in the exercise of a sound discretion the trial court determines that at the time the transaction under investigation occurred the proposed witness was able to receive accurate impressions and to retain them to such an extent that when testifying the capacity existed to transmit to fact-finders a reasonable statement of what was seen, felt or heard,--then, on appeal, the Court's action in holding the witness to be qualified will not be reversed.
As to the requirement of understanding the nature and effect of the oath, we said in Crosby v. State, 93 Ark. 156, 124 S.W. 781, that the child must be under an immediate sense of his responsibility to God with a conscientious sense of the wickedness of falsehood. But this court has found no abuse of discretion in the trial court's determination of competency where the child realizes that he is obligated to tell the truth and that he will be punished for not doing so, i.e., that he will be punished for not telling the truth because telling falsehoods results in punishment. In Crosby, the witness did not know what the consequences of his failure to testify truthfully would be and was not asked anything from which it could be inferred that he had a sufficient sense of the danger and wickedness of false swearing or that he comprehended and appreciated the sanctity and obligation of an oath. In De Voe v. State, 193 Ark. 3, 97 S.W.2d 75, we had this to say regarding an eight-year-old prosecutrix in a rape case:
As to her competency, it may be said, first, that her competency was peculiarly within the trial court's discretion, and the trial court's ruling on the question will not be disturbed unless there was a gross abuse of discretion * * *. The witness in the present case was eight years old, appeared to be intelligent, to understand what was meant by an oath, and she testified intelligently. We are of the opinion that the trial court did not abuse its discretion in permitting the witness to testify.
We cannot say that there was...
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