Ray v. State

• Decision Date: 29 November 1971
• Docket Number: No. 5634,5634
• Citation: Ray v. State, 473 S.W.2d 161, 251 Ark. 508 (Ark. 1971)
• Parties: Ernest H. RAY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 161

473 S.W.2d 161

251 Ark. 508

Ernest H. RAY, Appellant, v. STATE of Arkansas, Appellee.

No. 5634.

Supreme Court of Arkansas.

Nov. 29, 1971.

Skillman & Furrow, West Memphis, for appellant.

Ray Thornton, Atty. Gen., James A. Neal, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

A jury reduced the first degree murder charge against appellant by finding him guilty of manslaughter and assessed his punishment at two years in the State Penitentiary. For reversal of the judgment upon that verdict appellant first contends that the trial court erred in permitting the testimony of a 13-year-old witness. Appellant asserts the witness was not qualified because of age and lack of understanding of the meaning of an oath.

In a civil action a child below 10 years of age is never a competent witness. This is true by common law and by statute. Ark.Stat.Ann. § 28--601 (Repl.1962). In criminal cases, however, we have placed no limitation on the age of a child witness. Payne v. State, 177 Ark. 413, 6 S.W.2d 832 (1928). We have, however, consistently held that competency requires that certain qualifications be met. In Batchelor v. State, 217 Ark. 340, 230 S.W.2d 23 (1950) we reiterated:

'* * * if the child-witness, when offered, has capacity to understand the solemnity of an oath and to comprehend the obligation it imposes, and if in the exercise of a sound discretion the trial court determines that at the time the transaction under investigation occurred the proposed witness was able to receive accurate impressions and to retain them to such an extent that when testifying the capacity existed to transmit to fact-finders a reasonable statement of what was seen, felt or heard,--then, on appeal, the Court's action in holding the witness to be qualified will not be reversed.'

Also, we have consistently recognized that the trial court is allowed wide discretion in a determination of the competency of a child witness and on appeal we do not distrub the trial court's discretion in the absence of manifest error or clear abuse. Harris v. State, 238 Ark. 780, 384 S.W.2d 477 (1964).

In the case at bar, the child witness was 13 years of age and a student in the local junior high school. He testified he knew that the meaning and solemnity of an oath required telling the truth; that he attended church and Sunday school where he was taught, as in his home, to tell the truth. He testified at first that he did not know what would happen to him if he did not tell the truth. However, he then said that he had been punished for falsehoods and that he recognized that if he were untruthful as a witness that he would be punished and that as a witness he would be truthful. The witness was then permitted to testify that he was acquainted with the appellant, and identified him as well as appellant's codefendant. He related that he was in appellant's place of business on the day the shooting occurred. He stated that he observed appellant go to the back of his store, get a shotgun and then proceed across the street where the deceased was shot. He heard appellant's wife tell a codefendant to try to stop him. He also heard the appellant tell the deceased and two others to remove picket signs which they had placed upon posts; that the decedent said he did not put them up and he was not going to take them down; that appellant pointed the gun at decedent who attempted to push aside the gun, at which time the appellant shot him; that the decedent was unarmed and made no aggressive act toward appellant; and that appellant shot decedent after he (decedent) 'had taken his hand away from the gun.' On cross-examination it was elicited that the child-witness had previously said in a statement that the shotgun went off at the time the decedent was trying to take it away from appellant.

In the circumstances, we are of the view that the child-witness demonstrated sufficient capacity to understand the solemnity of an oath, the obligation it imposed, and that this witness was sufficiently able to receive accurate impressions of the transactions he observed and retain and relate them to the jury in a reasonably coherent statement. Therefore, we hold that no error was manifest and the trial court did not abuse its discretion in allowing this witness to testify.

Appellant next contends that the trial court erred in not granting appellant's motion 'for a directed verdict against murder in the first degree as a matter of law.' The State adduced...