Bell v. State, (No. 5813.)

• Decision Date: 06 May 1927
• Docket Number: (No. 5813.)
• Citation: 164 Ga. 292,138 S.E. 238
• Parties: BELL v. STATE.
• Court: Georgia Supreme Court

164 Ga. 292

138 S.E. 238

BELL

v.STATE.

(No. 5813.)

Supreme Court of Georgia.

May 6, 1927.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Golden Bell was convicted of a homicide, and he brings error. Affirmed.

James Jones was offered as a witness for the state. On objection by defendant as to his competency he was examined on oath and testified as follows:

"I am 9 years old. I do not go to school. I have been to school. I do not know how long I have been out of school. I have been to court once before, at the police station in Atlanta. I was a witness in a case. I do not know what court I was in. The case was one of a man running over a man. I held up my hand like this (indicating) when I came in here. I do not know what it means to have any one tell me, 'The evidence in this case shall be the truth, the whole truth, and nothing but. the truth, so help me God.' I do not know what an oath is. I know what would happen to me if I just told anything I wanted to. They would send me to the reformatory. I have never heard anything about the devil, or God, or anything of that sort. That man right yonder was telling me about taking me to the reformatory. He was going to take me there if I didn't tell the truth. He told me to tell the truth about it. I do not know what the truth is. I have never heard of the truth before. This man talked to me last Friday, here in the courthouse. They wrote down what I said. Oscar Jackson was with me. I did not sign my name. I made a cross-mark on a piece of paper. I touched a pen or pencil. These other boys were there when I was making the statement. I told what I had seen. I saw just what they saw. I waited for the others to make their statement, and then I made my statement. I stated what they said was all right. I did not know what was on the paper when I touched the pen."

The court asked the witness what he came there to tell. He made no answer. When questioned by the solicitor general, he made these statements:

"I came here to tell the truth. I have not told anybody anything but the truth about this case. The man that I made the statement to was a gentleman by the name of Jones. He wore glasses."

In answer to questions propounded by the court, the witness made these statements:

"I know what they would do with me if I told something I didn't see out there. I know what the court would do if I told something I didn't hear or see out there. I know whether I would be punished if I told something I didn't see or hear."

At the conclusion of the examination of the witness, counsel for the defendant objected to his being permitted to testify, on the ground that he was incompetent, that the examination showed him to be a 9 year old boy, who had never heard of God or the devil, that he did not know anything about the sanctity of an oath, and that he was thoroughly unqualified as a witness. The court overruled the objection, and permitted the witness to testify as follows:

"On Friday night me and a boy named Rufus Banta and Oscar Jackson were walking down Mitchell street, coming from the terminal station, coming home. We got down by the rock pile, and a Ford drove up. It was an open car. He stepped out and went to shooting. Golden Bell stepped out. Yonder is Golden Bell. He stepped out and went to shooting. The first shot, that little boy Rufus Banta fell over a wire, and we thought he was shot. We turned around the other way and started to run. At the first shot I seen him backing back. He backed back and caught his heart like this. The third shot he caught his heart and ran by Rufus Banta. Theman that got shot caught his heart like this, and ran by Rufus Banta, and Rufus ran down and told me to run down and see what was the matter. The man that got shot ran down in front of that place. I don't know what the name of that place is, but he ran on down and fell. I was the first one that got there. I was the first one there. There were five colored men and one lady there. That lady thought it was her brother. She took her hand and pulled him over on his back."

The error assigned is that the court erred in permitting the witness to testify, as his examination showed that he had no conception of the sanctity of an oath, that he did not know what an oath was, or what the truth was, and that he was therefore thoroughly incompetent to testify in the case.

The other assignments of error sufficiently appear from the opinion.

Branch & Howard and Eugene L. Tiller, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., of Atlanta, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., and J. W. LeCraw and E. A. Stephens, both of Atlanta, for the State.

Syllabus Opinion by the Court.

HINES, J. 1. James Jones, a boy 9 years of age, was offered as a witness for the state. Counsel for the defendant objected to this witness being permitted to testify, on the ground that he was incompetent because of his infancy. After the witness had been examined as to his competency, the court overruled the objection to his being allowed to testify, and in overruling the objection stated that "the jury passes on all of that, " and then addressed the jury as follows:

"You have heard the witness examined. He was examined in your presence, in order that you might observe his manner and hear his statement. It is for you to pass on the question of the credit you will give his testimony —whether he understands the nature and consequences of his testimony."

To this proceeding the defendant excepted upon the ground that it was the duty of the court to pass upon the competency of this witness, and that the court erred in submitting to the jury the question whether or not the witness was competent. Held:

(a) The competency of a witness must be decided by the court, and the court must, by examination, pass upon the capacity of a witness alleged to be incompetent from childhood. Civ. Code 1910, §§ 5856, 5865; Moore v. State, 79 Ga. 498, 5 S. E. 51; Hicks v. State, 105 Ga. 627, 31 S. E. 579; Reece v. State, 155 Ga. 350, 116 S. E. 631.

(b) It is generally error for the court to submit to the jury the question of the competency of a witness. Hicks v. State, supra; Reece v. State, supra.

(c) In overruling, after examination the objection to the witness on the ground that he was incompetent to testify, the court necessarily held and ruled that the witness was competent, and properly submitted to the jury the credit to be given to his testimony. The court passes...