Hacker v. State, 8 Div. 338.

• Decision Date: 22 June 1943
• Docket Number: 8 Div. 338.
• Citation: 31 Ala.App. 249,15 So.2d 336
• Parties: HACKER v. STATE.
• Court: Alabama Court of Appeals

15 So.2d 336

31 Ala.App. 249

HACKER v. STATE.

8 Div. 338.

Alabama Court of Appeals

June 22, 1943

Rehearing Denied Aug. 10, 1943.

R.B Patton and D.U. Patton, both of Athens, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and John J Haynes, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

Title 14, § 398, Code 1940, provides: "Any person who has carnal knowledge of any girl under twelve years of age, or abuses such girl in the attempt to have carnal knowledge of her, shall, on conviction, be punished, at the discretion of the jury, either by death or by imprisonment in the penitentiary for not less than ten years."

At the Fall Term 1942 of the Limestone County Circuit Court, the grand jury found, and returned into open court an indictment against this appellant wherein he was charged with the violation of the above quoted Statute; specifically, that he "did carnally know, or abuse in the attempt to carnally know Kathleen Adams, a girl under the age of twelve years etc."

The record shows that the defendant is a man 49 years of age, and that the girl in question was 7 years of age at the time of the alleged commission of the offense.

In the court below it was insisted that Kathleen Adams, the alleged injured party, was incompetent to testify on account of her tender years, and her inability to comprehend the nature and binding obligation of an oath. As stated, she was seven years old. Before entering upon the trial proper, the court examined into this question fully and thoroughly, and on the voir dire, she testified:

"I am seven years of age and I go to school. I don't know how long I have been going to school. I have heard about God and I heard about God from a Sunday School card. The Lord made me. I know what it is to tell the truth and I know what it is to tell something that is untrue or false. When little children tell the truth they go to the Lord and when they tell a story they go to the booger-man.

"Then the following question was asked the witness and her answer returned "Q. Do you know what it is to hold up your hand and promise God to tell the truth by his help? A. Yes."

This girl child was cross-examined at length by earnest counsel for defendant and at the conclusion of the cross-examination said counsel interposed the following objection:

"The defendant then and there objected to the witness Kathleen Adams, testifying and as grounds assigned the following: (1) that it conclusively appears from the testimony that the witness is incompetent; (2) that it conclusively appears from her testimony that the witness is of such tender years and of such limited mentality that she is not conscious of the solemnity of an oath; (3) that the witness is shown to be incompetent."

"The court overruled the objection of the defendant to the witness testifying and the defendant then and there duly and legally excepted."

This ruling of the court raises the controlling and governing question involved upon this appeal.

After a thorough, careful and attentive consideration of this insistence we are clear to the conclusion, and so hold, there was no error of the trial court in its ruling on this question. We are of the opinion if any doubt of the correctness of said ruling prevailed or existed, all such doubt was fully dissipated and rendered innocuous by the straightforward manner in which this child of tender years gave her testimony as a witness. In passing upon the competency of children as witnesses much must be left to the sound discretion of the trial court; and, as stated in the case of White v. State, 136 Ala. 58, 67, 34 So. 177, 180: "It is only in strong cases the ruling of the court admitting them as witnesses should be reversed." There is no set rule, nor could there be, as to the particular age at which a witness may, in all cases, be held legally competent to testify. It is manifest that such a rule would be unwise and impracticable for the reason as everyone knows, that children necessarily differ greatly in powers of observation and memory, etc., and for the further reason such a rule would practically "proclaim immunity to certain offenses of a serious nature against the persons of children which is next to impossible to establish without receiving their account of what has taken place" as is patently true in the instant case.

The child, Kathleen Adams, among other things, testified:

"I know Mr. Hacker sitting right there and I remember several weeks ago I was coming from school one afternoon and I saw him coming down the road and he said 'Hi' to me and I said 'Howdy' to him. We walked on down the road together until we got to the cross-roads, and he picked me up, put his hands over my mouth, pulled off my bloomers and then jumped in the ditch.

"Then the following question was asked the witness: Q. And he laid you down in the ditch and put his hand over your mouth and laid down on top of you? The witness answered, 'Yes'.

"And the witness continued testifying and said: When he got on top of me down there under the bridge he had me under him and he was lying all stretched out on top of me. He took my pants down that I had on and he was on top of me then and all stretched out. I felt something push inside me down between my legs and I felt it four times and it hurt me bad and I hollered and called momma. Then Mr. Hacker run down the ditch and got out and I got up and put my pants back on. I was bleeding down there then and after I put my pants on I went home and told momma about it. It felt like something stiff that he was putting in me down there and I was crying when I got home. When Mr. Hacker picked me up he put his hand over my mouth before he jumped in the ditch and he carried me and laid me down and got on top of me and pulled my pants down and put something in my privates and I felt it four times. And when I screamed and cried he left."

Appellant's counsel argues at length and lays great stress upon the fact that numerous discrepancies and contradictions appear in the testimony of the girl as to the details incident to the act complained of, not necessary to...