Peters v. State
| Decision Date | 22 December 1913 |
| Docket Number | 16,965 |
| Citation | 106 Miss. 333,63 So. 666 |
| Court | Mississippi Supreme Court |
| Parties | OBEDIAH PETERS v. STATE |
APPEAL from the circuit court of Monroe county, HON. CLAUDE CLAYTON Judge.
Obediah Peters was convicted of rape and appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
Paine & Paine, for appellant.
The text-writers all agree that there is no certain age at which the dividing line between competency and incompetency of an infant's testimony may be drawn. The consensus of opinion among them is, however, that the competency depends on intelligence rather than age.
This witness Alice Williams, was only six years of age and her testimony discloses the fact that her intelligence is of such an immature character as to disqualify her as a witness. For instance she talks about truth as having many, if not all the qualities, appearances and appendages of a cow.
We have, as children, been impressed with the idea, that his Satanic majesty, the devil, was cloven foot, had a long tail and crooked horns, but no child was ever taught that truth possessed any of these appendages. But on the contrary, that truth was the very embodiment of everything that was good that it was a shield and buckler against the devil and his emissaries, that every child could pray its prayers to God speak the truth and that no evil would come near it during the pitchy darkness of the night.
This witness's testimony discloses the fact that this little negress had the very lowest order of intelligence, so low that no court should give it any credence. Her testimony further discloses the fact, that she had not the faintest conception of the value of an oath. She testifies that the cause of her testimony was because her aunt Lindy told her to so testify and that she was simply testifying as she did because her aunt told her to do so. She has, from her testimony, no conception of the danger and impiety of lying. This is apparent from her testimony.
It may be urged, in reply to our contention, that the jury believed her and returned a verdict of guilty. This is true, but the court will not be unmindful of the fact that the crime charged is the most revolting and heinous known to the law, and this fact, plus the fact that the sympathy, that invariably attaches to and surrounds a child, was a most potent factor in influencing the jury.
We submit in this the judge committed error in permitting the testimony of this child to go to the jury. Of course, if this is correct then this court can do nothing but reverse the case. Mr. Wigmore, section 508, on Evidence "says the fact of capacity, as a witness, in a child under seven years of age is not presumed, but must be shown."
This being the test to be applied to Alice Williams, the witness, it will appear conclusively from her testimony her utter incapacity as a witness. The case of Trim v. The State, 33 S. R. 718, is not authority against our contention. In that case, the testimony of the witness Nora showed she knew the enormity of lying, knew she would go to Hell if she lied, learned this in Sunday School, she knew from teaching, it was wrong to lie."
In the case at bar every test which qualified Nora was wanting in the witness Alice. An analysis of the qualifications of the two from the record in the respective cases will demonstrate the great difference.
We submit that the record in the case at bar measures up to the rule as announced in the case of Wheeler v. U.S., 159 U.S. 523, by demonstrating clearly and unquestionably that it was gross error to permit the testimony of the witness to go to the jury. We ask for a reversal.
Geo. H. Ethridge, assistant attorney-general, for the state.
On the proposition that the child was not a competent witness I submit that the testimony of the child in chief displays sufficient intelligence to make her a competent witness, and whatever may have been, the rule at common law as to religious belief, it can have no force now only so far as it goes to effect the credibility of the witness. Under our law religious belief does not effect the competency of a witness. Section 1919 provides that a person shall not be incompetent because of his religious belief or want of religious belief.
This section of the Code makes a radical innovation of the common-law rule of evidence and a person who is an...
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...inadmissible testimony at the conclusion of the evidence comes too late. Harris v. State, supra; Dick v. State, supra; Peters v. State, 106 Miss. 333, 63 So. 666. We have therefore reached the conclusion that since the defendant made no objection to the introduction of the illegally obtaine......
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...showed that this child was qualified as a witness. Mackie v. State, 138 Miss. 740, 103 So. 379; Hays v. State, 126 So. 17; Peters v. State, 106 Miss. 333, 63 So. 666. record here presents a case where there is a very decided conflict as between the state and the defendant. Proof for the sta......
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