Muncie v. Com.

• Decision Date: 01 October 1948
• Parties: MUNCIE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

213 S.W.2d 1019

308 Ky. 155

MUNCIE v. COMMONWEALTH.

Court of Appeals of Kentucky

October 1, 1948

Appeal from Circuit Court, Estill County; E. B. Beatty, Judge.

Gardner Muncie was convicted of an attempt to rape a six year old girl, and he appeals.

Judgment affirmed.

J. M. Wolfinbarger and John W. Walker, both of Irvine, for appellant.

A. E Funk, Atty. Gen., and Walter C. Herdman, Asst. Atty. Gen for appellee.

SIMS Chief Justice.

Appellant Gardner Muncie, a man 45 years of age, was convicted of attempting to rape a six year old girl and his punishment was fixed at confinement in the penitentiary for ten years. He asks a reversal of the judgment on three grounds: 1. The court erred in permitting the girl to testify without first having qualified her as a witness; 2. the verdict is flagrantly against the evidence; 3. that under the evidence the most he should have been convicted of was assault and battery.

The child was asked nineteen qualifying questions by the commonwealth attorney and intelligently answered all of them. She told her name, her age, her birthday, the names of her parents, the street upon which she lived, the names of her two sisters and the given and surname of appellant. When asked what would happen to her if she did not tell the truth, she replied that the 'Booger-man' would get her and put her in jail. Thereupon, counsel for accused objected that the child did not qualify as a witness, which objection was overruled by the court and she proceeded to testify.

She stated that appellant was on the davenette in her home, told her to get in his lap and 'he stuck his two fingers into me', and that she cried. Asked if anything got on her 'panties', she nodded. The commonwealth attorney then said to her, 'Say, 'yes' if you're going to nod. Did you? A. Yes. Q. What? A. Blood.' She was then asked if she took her 'panties' off and put on clean ones and she replied that she did.

The child's mother, Mrs. Viola Wiseman, was away from home, having gone to take her young baby to the doctor and Loraine, prosecutrix' sister, had gone to a nearby store for milk. The prosecutrix was then asked what her mother did upon returning home and she replied, 'She took me to the doctor. Q. Did he examine you? A. Yes.' On cross-examination she said she did not fall the day previous to the alleged attack and hurt herself while playing.

We have many times written that there is no unalterable rule measuring the competency of a witness because of his or her age, and that the court should make inquiry into the child's qualifications and determine whether it is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth. If so, then the child should be allowed to testify, and it is for the jury to determine the weight to be given his or her testimony, once the court rules the child is a competent witness. Meade v. Com., 214 Ky. 88, 282 S.W. 781; Jones v. Com., 267 Ky. 465, 102 S.W.2d 345; Leahman v. Broughton, 196 Ky. 146, 244 S.W. 403; Davenport v. Com., 285 Ky. 628, 148 S.W.2d 1054. Applying this test to the questions propounded to and answered by this six year old girl in the instant case, we find that the court did not err in ruling she was a competent witness.

Counsel for appellant vigorously complain that the court and not the commonwealth attorney should have interrogated the child relative to her qualifications as a witness. The general rule, which prevails in this jurisdiction, is that the question of the competency of a child of tender years to testify is to be determined by the court after a careful examination of the child as to age, capacity and moral accountability. Whitehead v. Stith, 268 Ky. 703, 105 S.W.2d 834; State v. Michael, 37 W.Va. 565, 16 S.E. 803, 19 L.R.A. 605. But this does not mean that the trial judge must himself interrogate the child, although such is the customary and better practice. In the Whitehead case, 105 S.W.2d on page 837, we quoted from 28 R.C.L. p. 465, § 52 to the effect that when a young child is offered as a witness, 'the trial judge, without the interference of counsel further than he may choose or allow,' should examine the infant to see if he or she can qualify as a witness.

In the instant case the trial judge chose to allow the commonwealth attorney to interrogate the child. Since that attorney asked the qualifying questions properly and appropriately, after which the judge ruled the child was a competent witness, appellant cannot with good reason be heard to complain on the ground that the judge failed to interrogate the little girl. In Jackson v. Com., 301 Ky. 562, 192 S.W.2d 480, we approved the interrogation of a child by an attorney representing the commonwealth so that the court might determine whether or not he qualified as a witness. And it was written in Thomas v. Com., 300 Ky. 480, 189 S.W.2d 686, 687, 'Certainly no definite procedural strait-jacket can be outlined for the examination into the aptitude, capacity of understanding, or intelligence of the witness.'

This child's testimony was corroborated by her mother, Mrs. Wiseman, who was informed of the alleged attack on her daughter immediately upon returning home. She saw blood on the child's bloomers and took her that afternoon to Dr. Tracy Wallace, who testified that his examination revealed dried blood on the child's privates, as did Mrs. Wiseman. The doctor further testified that the penetration of her privates by a man's fingers would cause bleeding, but his examination of the vulva showed no signs of violence.

Appellant testified that he had worked all of the preceding night and went to Mrs. Wiseman's home around 10 A.M. at her invitation to help her wash clothes, her brother having married his sister. That after he finished with the washing Mrs. Wiseman told him to rest and sleep on the davenette while she took her baby to the doctor. When he awakened around 3 P.M. the children asked him for money to buy candy and upon his refusal, they started crying and he left the house with one of the children, Carol Sue, following him up the street. He denied having the prosecutrix on his lap or of touching...