Moore v. Com.
| Citation | 384 S.W.2d 498 |
| Parties | Elias MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Decision Date | 04 December 1964 |
| Court | United States State Supreme Court (Kentucky) |
Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellant.
Robert Matthews, Asst. Atty. Gen., Frankfort, F. E. Wood, Asst. Atty. Gen., Frankfort, for appellee.
WADDILL, Commissioner.
Appellant was convicted of attempting to rape an eight-year-old child and his punishment fixed at confinement in prison for five years. KRS 435.080(2). Reversal of the conviction is asked on the grounds that the court erred: In permitting the jury to hear incompetent and prejudicial testimony; in instructing the jury, and in permitting the Commonwealth's attorney to make an improper closing argument to the jury.
When the Commonwealth called the child as a witness the appellant objected to her testifying on the ground she did not have sufficient intelligence. To test her qualifications she was questioned as follows:
'Court: Do you understand that the things you tell that you are telling them in the presence of our Lord and you are supposed to now swear that what you tell is the truth and you are asking him to bear witness to the truth, and so long as you tell the truth you don't care who hears you.
'Mr. Burns: [Commonwealth's Attorney] You know what it means when you swear to tell the truth, don't you?
'Witness: No.
'Witness: Yes.
'Mr. Burns: When you held your hand up and Judge Dixon asked you to tell the truth and nothing but the truth, did you mean that you would tell nothing but the truth?
'Witnesses: Yes.'
At the conclusion of this brief inquiry the judge permitted her to testify.
When the competency of an infant to testify is properly raised it is then the duty of the trial court to carefully examine the witness to ascertain whether she (or he) is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth. Muncie v. Commonwealth, 308 Ky. 155, 213 S.W.2d 1019; Roberson's New Criminal Law & Procedure, section 567, pp. 775 to 777. In the instant case the examination of the child was so superficial that no accurate appraisal of her mental capacity could be made. The questions propounded to her on voir dire examination should have elicited answers which...
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