Morgan v. State, 30127

• Decision Date: 27 September 1962
• Docket Number: No. 30127,30127
• Parties: Houston MORGAN, alias James Arthur Carter, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 15

185 N.E.2d 15

243 Ind. 315

Houston MORGAN, alias James Arthur Carter, Appellant, v. STATE of Indiana, Appellee.

No. 30127.

Supreme Court of Indiana.

Sept. 27, 1962.

John M. Heeter, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Indianapolis, for appellee.

LANDIS, Justice.

This is an appeal from a judgment convicting appellant of the crime of second degree murder under an indictment charging him with first degree murder. Appellant was sentenced to life imprisonment and error is assigned on the overruling of the motion for new trial.

Appellant has set forth in his briefs on this appeal several specifications of error but in oral argument has conceded that if the specification as to the admission into evidence of the testimony of Vernon Morgan, a nine year old child, is not well taken, that the other alleged errors are not sufficient to warrant a reversal of the cause.

The specification in question raised by the motion for new trial is as follows:

'Irregularities in the proceedings and orders of the Court and abuse of discretion by which said defendant was prevented from having a fair and impartial trial in this, to-wit:

'The Honorable Richard Salb, Judge of this Court, erred in qualifying one Vernon Morgan, a minor nine (9) years of ago [sic], said trial judge making said minor the Court's own witness, in the interrogation of said minor, said interrogation as to qualifications being limited only to the following in substance, to-wit:

'(a) Asked name and age of child;

'(b) Asked did child attend church '(c) Asked child did he know what it was to tell a lie;

'(d) Asked child if he knew he would be punished if he told a lie.

'That the aforesaid examination was limited to the above and the defendant was prevented and precluded from further examination of said child as to his qualifications, and thus the child's interest, bias, prejudice, incompetence, relationship, influence and formed opinion concerning the defendant was not and could not be gone into and examined by defendant and his counsel.'

Appellant cites Burns' § 9-1603 (1956 Repl.) ¹ providing that competent witnesses in criminal cases include:

'* * * all persons who are competent to testify in civil actions * * *',

and Burns' § 2-1714 (1946 Repl.) ² providing that persons not competent as witnesses in civil cases are:

'* * * children under ten years of age, unless it appears that they understand the nature and obligation of an oath. * * *'

The record shows the following questions to have been asked the nine year old witness by the trial court, and the following answers given:

'THE COURT: Just a minute Mr. Petit--were you in Court before Vernon?

'WITNESS: No sir.

'THE COURT: What's your name?

'WITNESS: Vernon Morgan.

'THE COURT: How old are you Vernon?

'WITNESS: Nine.

'THE COURT: Do you go to Church?

'WITNESS: Yes sir.

'THE COURT: Do you know the difference between telling the truth and telling a lie?

'WITNESS: Yes sir.

'THE COURT: Do you know what it means to swear to God?

'WITNESS: Yes sir.

'THE COURT: Raise your right hand. Do you solemnly swear to tell the truth--the whole truth and nothing but the truth?

'WITNESS: I do.

'THE COURT: Proceed Mr. Petit.'

Appellant contends that although no objection or challenge was made to the child's testimony by appellant or his counsel that the court by its questions purported to make it appear that the child understood the nature and obligation of an oath, and that by so doing undue and prejudicial emphasis was placed on the testimony of this witness, who in effect, was made the court's witness before the jury so as to preclude a rigorous cross-examination; that cross-examination by counsel could cause jury resentment through taking of undue advantage of the child, but that a child's testimony should be cautiously received. No contention of incompetence of appellant's trial counsel has been urged.

Appellant does not dispute that the determination of whether a child under ten years of age is competent to testify is a question for the trial court, and when such court determines the witness to be competent, it would require a manifest abuse of discretion to authorize this Court to interfere. Tyrrel v. State (1912), 177 Ind. 14, 15, 97 N.E. 14; Blackwell v. The State (1858), 11 Ind. 196, 198; Batterson v. The State (1878), 63 Ind. 531, 536.

Appellant has contended nevertheless that there was an abuse of discretion in that the court up-graded the child's testimony and that this constituted reversible error, citing: Thomas v. State (1958), 238 Ind. 658, 154 N.E.2d 503.

An examination of Thomas v. State, however, reveals that such decision does not lend appellant the support he would ascribe to it. In that case the trial court found two nine year old girls to be competent witnesses and this Court on appeal did not disturb that determination, but stated that the fact they were found to be competent witnesses did not up-grade the credibility of their testimony. In such case we held the inconsistency of their testimony with the undisputed facts rendered their testimony so improbable that this Court must conclude there was not substantial evidence to support the conviction.

In the case before us there was no conflict of the child's testimony with undisputed facts so as to render such testimony improbable. In fact, from other evidence in the record, it was shown that appellant fired a gun two or three times at the deceased after stating that he had come to kill him. The evidence in the record was certainly sufficient for the jury to have concluded the killing was done with malice.

There is no question but that the trial judge should be cautious in admitting into evidence testimony of a child under ten years of age. Simpson v. State (1869), 31 Ind. 90, 91. Whether counsel should...