Payne v. State

• Decision Date: 28 May 1928
• Docket Number: 5
• Citation: Payne v. State, 6 S.W.2d 832, 177 Ark. 413 (Ark. 1928)
• Parties: PAYNE v. STATE
• Court: Arkansas Supreme Court

6 S.W.2d 832

177 Ark. 413

PAYNE v. STATE

No. 5

Supreme Court of Arkansas

May 28, 1928

Appeal from Lawrence Circuit Court, Eastern District; S. M. Bone Judge; affirmed.

Judgment affirmed.

Smith & Blackford, for appellant.

H W. Applegate, Attorney General, John L. Carter, Assistant, and Penix & Barrett, special counsel, for appellee.

OPINION

SMITH, J.

This appeal is from a judgment sentencing appellant to the penitentiary for the term of his natural life for the alleged killing of Fred Brandon. Only two assignments of error are argued for the reversal of the judgment, the first being that a child was erroneously permitted to testify on behalf of the State, and the second, that the court erred in refusing to give instruction number 2, requested by appellant.

No witness testified that he saw the killing, and the State relied entirely upon circumstantial evidence to secure the conviction. Two small boys, one Levi Phillips, who was seven years old, and another, Roy Pearson, whose age was eleven gave testimony which supplied an essential link in the chain of circumstances.

The defendant denied the killing, and undertook to prove an alibi, and offered testimony to the effect that he was far removed from the scene of the killing at the time it was shown to have occurred. According to the testimony of the boys above named, appellant was in deceased's field, with a gun and dogs, hunting, a few minutes before the shots, three in number, were fired by an automatic shotgun, which killed the deceased.

No preliminary questions touching the competency of Roy Pearson were asked that witness, but, when Levi Phillips was called, he was first interrogated by the prosecuting attorney as follows:

"Q. Tell these men your name? A. Levi Phillips. Q. How old are you? A. Seven years old. Q. When was your birthday? A. On Thursday, I think. I can't tell you just when it was, but it was on Thursday. Q. Is it wrong to tell a story? A. Yes sir. Q. What becomes of boys that tell stories? A. They lock them up. Q. If you are good and die, where do you go? A. Go to heaven. Q. Do you know Sam Payne here? Objection by the defendant."

Counsel for appellant then asked the witness the following questions:

"Q. Do you know what the punishment is, son, for telling a lie in court--you don't know that, do you? A. (No answer). Q. Then you don't know what the penalty for perjury is, do you? A. (No answer)."

Counsel for appellant, after propounding these questions, to which no answer was given, objected to the witness testifying, and saved an exception when his objection was overruled.

After the court had ruled that the witness was competent to testify, the witness told about seeing appellant in the deceased's field with dogs and gun, and was then subjected to a lengthy cross-examination by counsel for appellant. The answers of the witness indicated that the boy possessed at least average intelligence for a youth of his age. His answers were responsive to the questions asked him, and showed that he understood all these questions.

It is earnestly insisted that, under the rule announced in the case of Crosby v. State, 93 Ark. 156, 124 S.W. 781, the witness was not qualified to testify. In the Crosby case, a colored boy named Will Howard, ten years old, was permitted to testify, over the objection of the defendant. In that case, as in this, the witness stated that he knew it would be wrong not to tell the truth, but the colored boy answered that he did not know what would be done with him if he did not do so, while the witness Levi Phillips answered that he would be locked up if he told a story. The witness Will Howard was held to be incompetent, and the admission of his testimony was error calling for the reversal of the judgment. In each case the witness knew it was wrong to tell a story, but the witness Will Howard did not know that any punishment would attend if he did so, while the witness in the instant case not only knew it was wrong to tell a story, but that persons were punished who did so.

It is true, as counsel for appellant argue, that the witness made no answer to either of the questions asked him on his cross- examination. But we think the ability to correctly answer these questions was not the true test of competency. Many persons of sufficient intelligence to fully comprehend the obligation of an oath might be unable to answer what the punishment was for telling a lie in court, and who would not know what the penalty for perjury is.

In determining the competency of a witness testifying in a criminal case, we follow the common law on that subject, as announced in the case of Flanagin v. State, 25 Ark. 92, where it was said:

"As to children, there is no precise age within which they are absolutely excluded, on the presumption that they have not sufficient understanding. At the age of fourteen all persons are presumed to have common discretion and understanding, until the contrary appears, but under that age it is not presumed; hence inquiry should be made as to the degree of understanding which the child offered as a witness possesses; and if he appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he should be admitted to testify, no matter what his age may be."

The common law on the subject of the competency of witnesses in civil cases was changed by the Civil Code, § 663 of which (§ 4146, C. & M. Digest) provides that "infants under the age of ten years, and over that age if incapable of understanding the obligation of an oath," shall be incompetent to testify in civil cases, but the common law on the subject of the competency of witnesses in criminal cases was not changed by this statute, and remains as it was announced to be in the Flanagin case, supra.

In the case of Wheeler v. United States, 159 U.S. 523, 40 L.Ed. 244,...