Cross v. Com.

• Decision Date: 10 September 1953
• Court: Virginia Supreme Court
• Parties: ROBERT O. CROSS v. COMMONWEALTH OF VIRGINIA

Page 447

77 S.E.2d 447

195 Va. 62

ROBERT O. CROSS v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Appeals of Virginia

September 10, 1953.

Major M. Hillard and Broudy & Broudy, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and C. F. Hicks, Assistant Attorney General, for the Commonwealth.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

This writ of error brings under review the second trial of Robert O. Cross, on an indictment charging him with raping Patricia Nelson, a six-year-old girl. This Court, on review of the first trial, reversed the judgment, set aside the verdict fixing defendant's punishment at life imprisonment, on the ground that the evidence was insufficient to sustain the conviction, and remanded the case for a new trial 'if the Commonwealth be so advised.' 192 Va. 249, 64 S.E. (2d) 727. The Commonwealth elected to pursue the prosecution, and put defendant upon a second trial that resulted in a judgment of conviction, with his punishment fixed at twenty years confinement in the State penitentiary.

On the first trial the judge held that inasmuch as his examination of Patricia Nelson disclosed that she did not know right from wrong, she was an incompetent witness. On the second trial, the same judge held her to be competent, and her testimony was admitted over the objection of the accused. This testimony is the only substantial additional evidence offered on the second trial. In view of this fact, the evidence will not be re-stated in this opinion, as it was fully and fairly stated in the former opinion, to which reference is hereby made.

After the case was remanded defendant filed a plea of former jeopardy, based on the judgment of this Court setting aside the first judgment of conviction. The court's ruling, rejecting this plea, is assigned as error.

There is no merit in this assignment. When an accused is convicted of an offense and applies for and obtains a new trial, he thereby waives his former jeopardy and subjects himself to further prosecution for the same offense. Benton v. Com., 91 Va. 782, 21 S.E. 495; Lane v. Com., 190 Va. 58, 55 S.E. (2d) 450; State v. Cross, 44 W.Va. 315, 29 S.E. 527.

Defendant's main contention is that inasmuch as the trial court, on April 27, 1950, held that Patricia Nelson was incompetent to testify concerning events which occurred on January 21, 1950, she was incompetent on April 25, 1952 (the date of the second trial), to testify concerning the same events.

The general rule, with which we are in accord, is that the competency or incompetency of a child must be determined as of the date the child is offered as a witness and not at the time the incidents testified to occurred. The fact that a child was held to be incompetent at the time of the first trial is not of itself an adjudication of its continued incompetency to testify concerning events that occurred prior to its becoming competent. Maynard v. Keough, 145 Minn. 26, 175 N.W. 891; Kelly v. State, 75 Ala. 21, 51 Am.Rep. 422; Rueger v. Hawks, 150 Neb. 834, 36 N.W. (2d) 236; People v. Watrous, 7 Cal.App. (2d) 7, 45 P. (2d) 380; State v. Meyer, 135 Iowa 507, 113 N.W. 322, 124 Am.St.Rep. 291; Burnam v. Chicago G. W. Railroad Co., 340 Mo. 25, 100 S.W. (2d) 858; Mitchell v. The State, 103 Tex.Crim.Rep. 92, 279 S.W. 112; 58 Am. Jur., Witnesses, sec. 129, pp. 97, 98.

There is no specific age at which a child must have arrived in order to be competent as a witness. A child is competent to testify if it possesses the capacity to observe events, to recollect and communicate them, and has the ability to understand questions and to frame and make intelligent answers, with a consciousness of the duty to speak the truth. Wigmore on Evidence, 3d ed., Infancy, sec. 506, p. 596; 5 Jones Commentaries on Evidence, 2d Ed., Competency of Witnesses, sec. 2106, p. 3953; 70 C.J., Witnesses, secs. 121, 122, pp. 91-94. The question of the competency of a child as a witness, to a great extent, rests in the sound discretion of the trial court, whose decision will not be disturbed unless the error is manifest. Carpenter v. Com., 186 Va. 851, 44 S.E. (2d) 499; Mullins v. Com., 174 Va. 472, 5 S.E. (2d) 499; Rogers v. Com., 132 Va. 771, 111 S.E. 231; 20 Mich. Jur., Witnesses, sec. 9, p. 423; Wigmore on Evidence, 3d Ed., Infancy, sec. 507, p. 597.

The pertinent evidence introduced on the competency of Patricia Nelson and that tending to show that she had little, if any, recollection of her own concerning the alleged attack is quoted below.

Upon the first trial a part of her examination on her voir dire, in chambers, was:

'Q. And you say you are going to tell the truth about it today?

'A. Yes.

'Q. What do you mean by telling the truth?

'A. I don't know.

'Q. You don't know what that means?

'A. No.

'Q. Do you know what telling a falsehood means?

'A. No.

'Q. Do you know the difference between right and wrong?

'A. No.'

Upon this testimony the trial court held that Patricia was not a competent witness.

On the second trial Patricia was again examined in chambers, and after answering numerous questions intelligently, stated that she knew the difference between right and wrong, but that it had been so long since the alleged assault that she did not remember much about it. Her cross-examination, in part, was as follows:

'Q. Have you talked to your mamma and daddy about this since the last trial?

'A. Yes, sir.

'Q. Have they talked the matter over with you? * * *

'A. Yes.

'Q. They have told you what to say here today, haven't they?

'A. No, sir. They just told me to tell the truth.

* * *

'Q. Did they tell you to say that you were going to tell the truth?

'A. Yes, sir.

* * *

'Q. When have you talked to her [the mother] since that time?

'A. Last night.

* * *

'Q. Last night you told the whole story over again?

'A. Yes, sir.

'Q. * * * You told your mother last night what you told the Judge today?

'A. Yes, sir.

'Q. How many times have you told them that since two years ago?

'A. I don't know.

'Q. Every once in a while your mother would get you to tell it?

'A. Yes, sir.

'Q. About once a week?

'A. No, sir.

'Q. Many times?

'A. Yes, sir.

'Q. Lots of times you would tell the story over and over again?

'A. Yes, sir.

'Q. Some things you didn't remember and your mother would tell you?

'A. Yes, sir, she would read it out of a book.

'Q. When she read it out of a book you would recite it, you would tell it?

'A. Yes, sir.

'Q. When you couldn't think of anything your mother would read it out of a book and you would remember it, memorize it, would you?

'A. Yes, sir.

* * *

'Q. Your mother told you Cross was the man who did it, that Robert was the man who did it, didn't she?

'A. Yes, sir.

'Q. Did she say to you, 'Did Robert bother you?'

'A. Yes, sir.

'Q. And you said no, didn't you? Did you say, 'No, Robert didn't bother me' or he did?

'A. He did bother me.

'Q. Didn't you tell your mother no the first time?

'A. Yes.

'Q. Why did you tell her no?

'A. Because I was scared she would whip me.

'Q. After you told her no she told you you could bleed to death unless you told her; is that right?

'A. What?

'Q. Didn't your mother threaten you that night to make you tell?

'A. She was threatening me?

'Q. And she told you you could die?

'A. Yes.

'Q. And you were frightened, scared to die?

'A. Yes, sir.

'Q. She said she knew Robert was the one that did it, didn't she?

'A. I knew it at first.

'Q. You knew it at first?

'A. She didn't know nothing about it.

'Q. She suggested that to you, didn't she. She told you Robert was the man and asked you if he was the man when she first talked to you?

'A. Yes.

'Q. For the past two years you have been repeating this story from time to time with your mother; is that right?

'A. Yes, sir.'

The following cross-examination of Patricia Nelson took place in the presence of the jury:

'Q. You have, of course, talked to your mother about this from time to time?

'A. Yes, sir.

'Q. You have talked to her a lot of times?

'A. Yes, sir.

'Q. And she would help you as to what to say when you got in Court?

'A. No, sir.

'Q. Did you remember everything?

'A. Not much.

'Q. You didn't remember much?

'A. No.

'Q. How would your mother teach you what to say. Did she read anything to you. How would your mother teach you what to say? It has been over two years ago, hasn't it?

'A. Yes, sir.

'Q. And you don't remember too much about it?

'A. I know a lot about it.

'Q. Did your mother read anything from a book?

'A. Yes, sir.

'Q. What did she read to you from the book?

'A. (Pause)

'Q. Did she help you at all, help you to tell what was out of the book?

'A. Yes, sir.

'Q. She did that last night?

'A. Yes, sir.

'Q. And a lot of times before today, too, didn't she?

'A. Yes, sir, I talked to her the same night.

'Q. You practically memorized what you are saying today, you memorized it so as to be able to tell it straight, the last two years?

'A. Yes, sir.

'Q. For the last two years?

'A. Yes, sir.'

A careful consideration of the entire testimony of Patricia Nelson leads to the conclusion that her testimony is a recital of what her mother had repeatedly told her to say rather than her own independent recollection of what is alleged to have occurred on January 21, 1950.

This conclusion is strengthened by other evidence in the record. The Commonwealth proceeded on the theory that the crime was committed sometime between 2:30 and 4:30 p.m. During this entire time Patricia and Barbara Ann, her eight-year old sister, were playing either in the Nelson back yard, defendant's back yard, or on the concrete driveway leading from Roger Avenue to a garage on the back of E. C. Stang's lot, which was to the north of and adjacent to defendant's lot. The children were in and out of their home. During the interval Patricia Nelson was in sight of or in hearing distance of at least three people besides defendant -- Barbara Ann, her mother, and E....