Bell v. State
| Decision Date | 13 March 1957 |
| Citation | 93 So.2d 575 |
| Parties | George BELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Robert M. Leite and William D. Green, Perry, for appellant.
Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appellee.
Appellant Bell seeks reversal of a judgment of conviction and sentence to death pursuant to a jury verdict finding this guilty of the crime of rape.
The principal point for our consideration is the matter of the competency of the nine-year old prosecutrix coupled with the manner in which her testimony was elicited by the State Attorney.
A detailed delineation of the unpleasant facts is not essential to our conclusion. The alleged victim of the crime was the nineyear old daugther of the defendant. She was the principal prosecuting witness. In actuality her testimony ws essential to the State's case. Without it the jury could not have found appellant guilty of the crime. When she was offered as a witness, appellant's counsel objected to her competency. We mention hereafter the results of the preliminary examination testing her competency. In the course of the examination of the child by the State Attorney on the merits of the case, after she had been deld competent to testify, much of the critical testimony was obtained by obviously leading questions. Many of these were objected to by counsel for the appellant. The questions were nonetheless permitted. The jury brought in a verdict of guilty without recommendation of mercy. Appellant was sentenced to pay the supreme penalty by the judgment of the trial court. Reversal of this judgment is here sought.
On the points which we here consider, the appellant contends that the child was not shown to be competent to testify and that the leading questions produced such damaging evidence that he is entitled to a reversal.
The State, of course, contends that the competency of the child was adequately established and that the guilt of the appellant was clearly supported by the evidence.
The crime charged is atrocious and repulsive. The relationship between the appellant and the young prosecutrix only serves to underscore the heinousness of the accusation. However, the odium of the charge cannot be considered as an element in the determination of guilt. The proper administration of justice requires a fair trial conducted in accord with traditional concepts of our jurisprudence. Among these governing rules are those dealing with the competency of witnesses and the orderly processes for presenting evidence for the consideration of judge and jury.
The appellant here has been convicted and sentenced to death almost entirely on the testimony of his little nine-year old daughter, the prosecutrix. A year before the alleged occurrence the child with five small brothers and sisters had been abandoned by her mother to the care of the appellant father. Immediately after the appellant was placed under arrest, the child was delivered into the custody of her mother and an aunt and uncle, all of whom were admittedly antagonistic to appellant. She remained under this influence for some time immediately prior to the trial. Out of this atmosphere of ill will and antagonism the little girl was sent to the witness stand to testify to the details of the offense.
Appellant's counsel questioned her competency. Her answers revealed her to be a nine-year old still in the first grade in school. She had never been taught the difference between telling lies and telling the truth. She had never gone to church. She didn't even know what an oath was. Just prior to taking the witness stand the State Attorney in private conference had told her that she 'would go to a penitentiary' if she told a story. Finally the State inquired, 'You know not to tell a lie don't you?' The child replied, 'No, sir.' The young witness testified in 'the shadow of the penitentiary' rather than in the wholesome light of moral and spiritual suasion to tell the truth.
The prime test of testimonial competency of a young child is his intelligence rather than his age. In addition the infant witness should possess a sense of obligation to tell the truth. Sensibility to this obligation under his oath is one of the turning factors. Fear of temporal punishment may be considered as producing a sort of compulsory veracity. However, we lean to the view that there is really no substitute for the spiritual and moral consciousness that should be the basic inducement to all witnesses to speak the truth.
We are aware of our numerous decisions which accord to the trial judge a very broad discretion in determining the competency of witnesses. It is not, however, a discretion without bounds. It is a sound judicial discretion subject to appellate review. We are not here prepared to hold that the able and long-experienced trial judge who presided in this case abused his discretion. His extensive contributions to the cause of justice would certainly suggest the contrary. However, when considered against the background of ill-feeling and animosity against the appellant to which this pliable, impressionable and unfortunate child had been subjected, we cannot avoid the conclusion that the evidence of her competency was far from sufficient to suggest that she was in any measure mentally or morally equipped to stand up under the pressure of the repeated leading questions of the aggressive prosecuting attorney who had been the one to impress upon the child that the penitentiary could be her lot if she failed to speak the truth.
Bearing in mind the serious question as to the competency of the young prosecutrix and adding to it the atmosphere in which she testified, her temperament, her lack of experience and actual ignorance, the repeated leading questions of the able prosecutor assume unusual potentials for depriving this appellant of a trial comporting with the requirements of fairness that our Constitution guarantees to the guilty as well as to the innocent. Our view is not to be construed as any disparagement of aggressiveness on the part of those officials charged with the duty of enforcing the criminal laws. However, we should bear in mind that unlike the legendary cat, a man has only one...
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Reed By and Through Lawrence v. Bowen, 86-182
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