Gaines v. State

• Decision Date: 09 November 1896
• Parties: GAINES. v. STATE.
• Court: Georgia Supreme Court

26 S.E. 760

99 Ga. 703

GAINES.

v.STATE.

Supreme Court of Georgia.

Nov. 9, 1896.

Witnesses —Competency — Criminal Law — Admissions.

1. An examination for the purpose of testing the competency of a child of tender years to testify as a witness, which develops nothing except that he does not know his age, hut does know his father's name and the number and names of the days of the week, and can count 32, is not sufficiently comprehensive to authorize a conclusion that such child understands the nature of an oath.

2. Evidence that the father of one accused of crime endeavored to effect a settlement of the prosecution may, in some instances, be competent as affecting the father's credibility as a witness; but such evidence is never admissible to bind the accused as a quasi admission of guilt, unless it appears that he authorized, or was in some way connected with, the attempt to settle.

3. It was error to charge upon the hypothesis that the accused had "made a proposition of settlement, " when there was no evidence that he had done so.

4. The charge of the court was, in several respects, inaccurate, and did not clearly present the law of the case.

(Syllabus by the Court.)

Error from superior court, Chattahoochee county; W. B. Butt, Judge.

Gus Gaines was convicted for rape, and brings error. Reversed.

L. McLester, E. J. Wynn, and J. H. Worrill, for plaintiff in error.

S. P. Gilbert, Sol. Gen., for the State.

LUMPKIN, J. The plaintiff in error was convicted of the offense of rape upon one Ada Williams, and excepts to the overruling of his motion for a new trial.

1. One of the questions for our consideration arose upon a ruling of the trial judge to the effect that Primus Stafford, a child of tender years, was competent to testify as a witness. It appeared, upon an examination conducted by the judge for the purpose of inquiring into the competency of this child, that he was ignorant as to his own age, but did know his father's name and the number and names of the days of the week, and could count as high as 32. This examination, however, developed nothing more concerning the child's competency as a witness. We do not think the examination was sufficiently comprehensive. It certainly did not show that the child, either from a moral or a legal standpoint, understood the nature or obligation of an oath, or had the slightest degree of knowledge with reference to the legal consequences of committing perjury. While this court is not inclined to any great strictness on this subject, we feel constrained to hold that the test to which the witness now under consideration was subjected was hardly sufficient.

2. There appears in the record evidence tending to show the father of the girl alleged to have been assaulted and the father of the accused had made efforts to effect a...