Kiracofe v. Com.

• Decision Date: 11 March 1957
• Docket Number: No. 4636,4636
• Citation: Kiracofe v. Com., 97 S.E.2d 14, 198 Va. 833 (1957)
• Parties: GERALD M. KIRACOFE v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 14

97 S.E.2d 14

198 Va. 833

GERALD M. KIRACOFE v.COMMONWEALTH OF VIRGINIA.

Record No. 4636.

Supreme Court of Appeals of Virginia

March 11, 1957.

Harry Blatt, on brief, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and R. D. McIlwaine, III, Assistant Attorney General, on brief, for the Commonwealth.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

On October 17, 1955, a grand jury of Rockingham County, Virginia, returned four indictments against Gerald M. Kiracofe, hereinafter referred to as the defendant.Two of the indictments charged him with the rape of Linda Warner, a female child, six years of age.Code of Virginia, 1950, § 18-54.One of these offenses was alleged to have occurred on or about August 5, 1955, and the other on August 20, 1955.Two of the indictments charged him with illegally seizing, taking, or secreting the same child from the person having lawful charge of such child.Code of Virginia, § 18-47.One of these offenses was charged to have been committed on or about August 5, 1955, and the other on August 20, 1955.

On October 19, 1955, defendant was arraigned upon the two indictments, which charged the offenses alleged to have been committed on or about August 5, 1955.He entered a plea of not guilty to each indictment.

On November 25, 1955, the deposition of Linda Warner was taken in the presence of the accused and his counsel, the Attorney for the Commonwealth, and the trial judge.Virginia Code, § 18-56.

The cases came on to be heard on December 5, 1955, and, by agreement of the Attorney for the Commonwealth, counsel for the accused, and the accused in person, and with the consent of the trial judge, were tried jointly by a jury.The jury found defendant guilty of each offense as charged in the indictments, and fixed his punishment at confinement in the penitentiary for a term of twenty-three years upon the indictment for rape, and for a term of two years upon the other indictment.

The motion of the defendant to set aside each of the two verdicts was overruled.Due exceptions were taken.The defendant was thereupon sentenced to confinement in the penitentiary, in accordance with the two verdicts.The case is now before us upon a writ of error to the judgments of conviction entered pursuant to the verdicts.

Among the witnesses for the Commonwealth were the prosecutrix, Linda Warner, and her cousin, Mary Caroline Taylor, a female child, nine years of age.

The crucial question raised by the principal assignment of error is whether the above children were competent to testify as witnesses.In other assignments the defendant contends that the verdicts are contrary to the law and the evidence and excessive; and that the court erred in the admission and rejection of evidence.

Because of its importance we will first consider the question of competency of the two children as witnesses.In determining their competency, it is proper to here set out the relevant portions of the deposition of the prosecutrix at the preliminary examination by the trial court, and the testimony of her cousin on her voir dire.

The testimony of Linda Warner was as follows:

'By Mr. George D. Conrad:

* * *

'Q.Do you go to Sunday School sometimes?

'A.Not very often.

'Q.Youhave been there?

'A.No.

'Q.Have you ever been to church?

'A.Yes, when I was over at my grandmother's.

'Q.Has your mother tried to teach you what was right and what was wrong?

'A.No.

'Q.She has tried to teach you to be a good girl?

'A.Yes, but I don't always listen.

'Q.Do you know the difference between telling the truth and telling a lie?

'A.(Nodded head).

'Q.Would you tell the truth if you promised to do it?

'A.I don't know.

'Q.If the judge, Mr. Haas, here, asked you to tell the truth and you promised to do it, would you tell the truth?

'A.I don't know.

'Q.Do you know it is bad to tell a lie?

'A.Yes.

'Q.Youdon't tell a lie if you promise to tell the truth, do you?

'A.Sometimes.

'Q.I mean that if I asked you to tell me the truth about what happened, are you going to tell us the truth?

'A.I didn't promise yet.

'Q.Willyou tell the truth if you promise to do it?

'A.I might.

'Q.I want to be sure now.I don't want you to tell me stories.You wouldn't have any reason to make up anything would you?

'A.I don't know.

'Q.Your mother told you to tell the truth?

'A.(Nodded head).

'Q.Youdon't want to be a bad girl, do you?

'A.Sometimes I am a bad girl.

'Q.Don't you try to be a good girl?

'A.No.

'Q.Youwouldn't tell me a lie about Jerry would you?

'A.No.

'Q.Are you going to tell us the truth about Jerry if we ask you?

'A.Yes.

'Q.Youare not going to make up anything -- you are going to tell exactly what happened?

'A.(Nodded head).

'Q.Do you know what happens to bad people when they lie?Where do they go?

'A.Downstairs.

'Q.Where do the good people who tell the truth go?

'A.Upstairs.'

'By Mr. Harry Blatt:

'Q. Linda, when you said you were going to tell the truth about Jerry, are you going to tell the truth about something else if you are asked?

'A.I don't know.'

* * *

'By the Court:

* * *

'Q.What is your feeling, your own feeling, about people who tell an untruth as compared to people who always tell things that are true?Do you have any feeling about people who are inclined to tell something that is untrue most of the time?

'A.I don't like that.

'Q.Youknow that it is wrong?

'A.Sometimes my cousin lies to me.

'Q.And you don't like it?

'A.No, sir.

'Q.Do you know what it means to solemnly promise that you will be truthful?

'A.(Nodded head).

'Q.Do you know what might be the result if you promised or swore to somebody that you would tell the truth and then told an untruth?

'A.That would have been a bad way to do.'

'The Court:

'I think I will let the child go ahead and testify.

'The Court:

'Let me ask you this Linda.When you said a minute ago to Mr. Conrad that you didn't know whether you would or would not tell the truth, what did you mean by that?

'A.I don't know whether I would tell the truth or not.

'Q.Would you purposely tell a lie, or make a mistake?

'A.That's right.

'Q.Which is right?That you might purposely tell a lie?

'A. Huh uh.

'Q.Or that you might make a mistake?

'A.(Nodded head).

'Q.I want to be perfectly sure what you mean.Do you mean that you would not purposely tell a lie?

'A.No.

'Q.Of course anybody can make a mistake.For instance if you ask me what time it is and I would say '11:00 o'clock' and I would be wrong, but that wouldn't be a lie because I thought it was 11:00 o'clock.That is just a mistake.Did you mean that kind of mistake or a deliberate mistake on purpose?That is, would it be a deliberate mistake or accidental?

'A.Accidental.'

'The Court:

'The Court will accept her as competent.'

'Mr. Blatt:

'The accused objects and excepts to the ruling of the court.'

'The Court:

'Now Linda, this is a Holy Bible, and I want you to put your hand on it and the Court will ask you do you promise that every answer that you give to the questions that are asked will be truthful as far as you can say?

'A.I do.'

The testimony of Mary Caroline Taylor was, in part, as follows:

'By Judge Haas

'Q.How old are you?

'A. 9.

'Q.Do you go to school?

'A.Yes.

'Q.How far are you in school?

'A.The third grade.

'Q.Have you learned the difference between a lie and the truth?

'A.(Shakes head no).

'Q.Youmean you don't know the difference between a lie and truth?

'A.(Shakes head no).

'Q.Do you know what it means to take an oath to promise to tell the truth, the whole truth?

'A.(Shakes head no).

'Q.Do you go to any kind of church or Sunday School?

'A.I used to go to the Mennonite.

'Q.Where is that?

'A.I used to go to Red Hill.

'Q.Have you been told the difference between things that are right and things that are wrong?

'A.(Shakes head no).

'Q.Is it right to tell a lie?

'A.No.

'Q.Why isn't it right?

'A.It gets you in trouble.

'Q.Do you understand that when a person who testifies as a witness in the trial of the case that that person is required to take an oath to promise that she or he will tell the truth, the whole truth?

'A.Yes.

'Q.Do you know why that is done?

'A.(Shakes head no).

'Q.Would it be right or would it be wrong or would it make any difference if somebody promises to tell the truth and then told something that is not true?

'A.(Shakes head no).'

'By Mr. Conrad:

'Q.Tootsie you are not scared, are you?

'A.Yes.

'Q.Now I don't want you to be scared.If you promise to tell the truth, are you going to stick to that promise?

'A.Yes.

'Q.Youare going to tell the truth?

'A.Yes.

'Q.Do you know it is bad not to tell the truth?

'A.Yes.

'Q.Do you know what happens to them?

'A.Yes.

'Q.What happens to them?

'A.The devil burns them.

'Q.Youdon't want that to happen to you, do you?

'A.No.

'Q.Youpromise to tell the truth?

'A.Yes.'

'By Mr. Blatt:

'Q.Tootsie, if you tell a lie what happens to you?

'A.Well the devil scolds you.

'Q.The devil will scold you?

'A.Yes.'

The principles to be applied in determining the competency of a child to testify as a witness have been established in Virginia in numerous decisions of this Court.They are clearly stated at length in Rogers v. Com., 132 Va. 771, 111 S.E. 231, where a little girl nearly six and her brother eight years old were involved, and restated recently in Cross v. Com., 195 Va. 62, 77 S.E.2d 447, where a six-year old child was involved.

We have repeatedly said that there is no fixed age at which a child must have arrived to be competent to testify, for competency depends not on age, but on intelligence, a sense of moral responsibility, and the mental capacity to observe events about which the testimony is offered, to remember them, to understand questions propounded, and the ability to make intelligent answers, all with...