Horton v. State, (No. 17307.)

• Decision Date: 15 June 1926
• Docket Number: (No. 17307.)
• Parties: HORTON . v. STATE.
• Court: Georgia Court of Appeals

35 Ga.App. 493

133 S.E. 647

HORTON .

v.STATE.

(No. 17307.)

Court of Appeals of Georgia,

Division No. 1.

June 15, 1926.

(Syllabus by the Court.)

Error from Superior Court, Johnson County; R. Earl Camp, Judge.

Felton Horton brings error. Reversed.

C. S. Claxton, of Wrightsville, for plaintiff in error.

Fred Kea, Sol. Gen., of Dublin, for the State.

BLOODWORTH, J. The evidence of a child was objected to on the ground that she did not understand the meaning and nature of an oath. As far as it relates to this question, the evidence of the witness was as follows:

"I don't know how old I am. Don't know the day of the week. Don't know the number of days in a week. Don't know the number of days in a month. Don't know what year it is. To-day is Friday. Lots of people have talked to me about this case, and have told me to swear what I have told. I don't know the meaning of an oath. I don't know what it means to be sworn. Don't know that I would be punished for telling a lie. If I tell the truth, I will go to heaven. If I tell a lie, I will go to hell. The solicitor told me to say that."

The law¹ of this state is that "children who do not understand the nature of an oath, are incompetent" as witnesses. Civil Code 1910, § 5862; Penal Code 1910, § 1038. In Warthen v. State, 11 Ga. App. 152, 74 S. E. 894, Chief Judge Hill said:

"The test, therefore, which the law prescribes as to the competency of a child of tender years to be a witness is knowledge by the child of the nature of an oath; and if the preliminary examination of the child offered as a witness shows that she has no knowledge whatever of the nature of an oath, the Code declares that she is incompetent as a witness. This is one of the safeguards which the law provides in the trial of criminal cases. It is not a technicality. But, even if it is, it is a positive declaration of the statute and cannot be disobeyed. No conviction can be legally had except upon the testimony of a competent witness, and the law declares who are competent witnesses, and the orderly administration of justice demands that there shall be no relaxation of the rules of law on this subject.-In this case the law declared that the child was incompetent as a witness to testify against the accused, unless she was shown by the preliminary examination to know the nature of an oath. Her examination on this subject shows, beyond question, that she had no knowledge whatever on the subject. On the preliminary examination she testified that she knew the difference between the truth and a lie, and that it was wrong to tell a lie, but this is not the test which the law makes as to the competency...