Rogers v. Commonwealth

• Decision Date: 16 March 1922
• Citation: 111 S.E. 231
• Parties: ROGERS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

111 S.E. 231

ROGERS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 16, 1922.

Rehearing Denied April 3, 1922.

Error to Hustings Court of Portsmouth.

H. F. Rogers was convicted of assault and battery upon a girl less than six years of age, and he brings error. Affirmed.

Venable, Miller, Pilcher & Parsons, of Norfolk, and J. C. Foster, of Colonial Beach, for plaintiff in error.

John R. Saunders, Atty. Gen., J. D. Hank, Jr., Asst. Atty. Gen., and Leon M. Bazile, Second Asst. Atty. Gen., for the Commonwealth.

BURKS, J. The accused (plaintiff in error) was convicted of assault and battery upon a little girl less than 6 years of age. The case was heard de novo in the Hustings court of Portsmouth, on an appeal from the police justice, and, by consent of parties, a jury was waived and the case submitted to the judge of the court, who pronounced judgment against the accused and fixed his imprisonment at six months in jail. The chief witnesses for the commonwealth were the little girl, who lacked 2 months of being 6 years old, and her brother, of the age of 8 years. The assignments of error are, (1) the incapacity of these two children to testify, and (2) that the judgment is contrary to the law and the evidence.

There is no fixed age at which a child must have arrived in order to be competent as a witness. Of course no one would think of calling a child 2 or 3 years of age as a witness in a case, but the whole question of competency must be left largely to the discretion of the trial court, and its judgment will not be reversed except for manifest error. He has the opportunity of seeing the child and its demeanor on the stand, which cannot be photographed in the record, and unless what is in the record clearly shows that he has committed error, his action will not be reversed. The child may be too young to be convicted of perjury, but this is not decisive of its competency as a witness. Commonwealth v. Robinson, 165 Mass. 426, 43 N. E. 121.

In order to be competent as a witness, the child must have sufficient mental capacity to observe the data about which it has testified and record it in mind, and thereafter understand questions put to it and be able to give intelligent answers. There must also be a sense of moral responsibility, at least to the extent of a consciousness of a dutyto speak the truth. 1 Wigmore on Evidence, § 506.

In Wheeler v. United States, 159 U. S. 523, 16 Sup. Ct. 93, 40 L. Ed. 244, it is said:

"While no one would think of calling as a witness an infant only 2 or 3 years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous."

It is further said in the same case:

"Of course, care must be taken by the trial judge, especially where, as in this case, the question is one of life or death. On the other hand, to exclude from the witness stand one who shows himself capable of understanding the difference between truth and falsehood, and who does not appear to have been simply taught to tell a story, would sometimes result in staying the hand of justice."

In Commonwealth v. Ramage, 177 Mass. 349, 58 N. E. 1078, a child 6 years and 4 months old was received as a witness in a trial for an indecent assault upon her person; it being stated that the examination on the voir dire disclosed no unusual mental condition.

In Trim v. State (Miss.) 33 South. 718, a child 5 years of age was permitted to testify to the identity of a man who had killed her mother.

In State v. Blythe, 20 Utah, 378, 58 Pac. 1108, a little girl about 6 years old was permitted to testify on a prosecution of a defendant for assault upon her with intent to commit rape, and it was said that the appellate court would not interfere with the holding of the lower court if the lower court, upon examination made upon its voir dire, or upon all of its testimony, concludes that the child is competent to testify, unless there is clear abuse of its discretion apparent from the record.

In Uthermohlen v. Bogg's Run Co., 50 W. Va. 468, 40 S. E. 415, 55 L. R. A. 911, 88 Am. St. Rep. 884, the trial court refused to hear the testimony of infants 9, 10, and 14 years of age, respectively, on account of lack of capacity, and the appellate court said, in affirming the ruling:

"We cannot judge of the real character or degree of intelligence of these witnesses from their mere paper evidence. The judge of the circuit court had a means of decision in this matter not possessed by us, their presence face to face before him, affording him a su perior means to judge, of which we are deprived. In almost every case that is the deciding test. In a great majority of cases the decision of the trial court in the matter of the competency of a child, depending as it does, not on age, but on intelligence, must be final, and 'it must be a very flagrant case of error to authorize this court to reverse the judgment.' "

Among other authorities cited are, Peterson v. State, 47 Ga. 524; Wharton on Ev., § 368; State v. Edwards, 79 N. C. 648; State v. Manuel, 64 N. C. 601; State v. Michael, 37 W. Va. 565, 16 S. E. 803, 19 L. R. A. 610.

The case at bar was decided by an able and experienced judge, who had before him, not only the statements of the children on their voir dire, but also their testimony on the merits of the case. We need not go into the testimony of the boy 8 years of age, because he disclosed certainly as much intelligence and knowledge of the duty to tell the truth as his younger sister, and it is sufficient, therefore, to look to the testimony of the latter.

On the subject of the obligation of an oath, she testified that she was in regular attendance upon the Sunday school; that she did not know what it was to be a witness, or what was meant by the obligation of an oath. On this subject, however, she testified in part as follows:

"Q. Do you know what it means to tell the truth?

"A. Yes, sir.

"Q. What would happen to you if you did not tell the truth?

"A. Go to the bad man.

"Q. Go to the bad man?

"A. Yes, sir.

"Q. If you say anything here, are you going to tell the truth, or not to-day?

"A. Yes, sir.

"Q. Everything you say will be true?

"A. Yes, sir. * * *

"By the Court: Q. Do you know what the Bible is?

"A. Yes, sir.

"Q. What is it?

"A. It is learning to be good.

"Q. Whose book is it?

"A. The Lord's.

"Q. The Bible is the Lord's book, and it teaches you to be good?

"A. Yes, sir.

"Q. When you put your hand on the Bible, do you understand you are calling upon the Lord as bearing witness that you are telling what is true, and that you are not telling what is not true? Do you understand that?

"A. Yes, sir."

During the course of the examination of the witness on the merits of the case she stated that she did not hear what was asked her when she was sworn, and thereupon the court said that it would swear her over again. Then the following questions and answers ensued:

"Q. Your name is Mildred Cherry?

"A. Yes, sir.

"Q. This is the Bible, and when you put your hand on the Bible it means you are calling on the Lord to bear witness to the fact that you are telling the truth. Now, put your hand on the Bible. Will you, in answer to all the questions that are asked you in this case, tell the truth, the whole truth, and nothing but the truth, so help you God?

"A. Yes, sir.

"Q. All right. Now, in giving the answers to the questions that these gentlemen asked you and that these gentlemen who represent the defendant asked you, have you told the truth?

"A. Yes. sir.

"Q. You have told the truth?

"A. Yes, sir."

On cross-examination on this subject, the following questions were asked and answers given, while referring to something which the mother had said to the witness:

"Q. Did she tell you what to say when they asked you if you knew what it meant to tell the truth, and where you would go if you didn't?

"A. Yes, sir.

"Q. What did she say about that?

"A. She asked me did I know where I would go if I didn't tell the truth, and I said yes.

"Q. Did she tell you that they would ask you that this morning?

"A. She said they may and may not.

"Q. She said that they may and may not? Did she tell you if they did ask you that what you must say?

"A. Yes, sir.

"Q. What did she say you must say?

"A. That I would go to the bad man.

"Q. That is the reason you told the judge that, wasn't it?

"A. Yes, sir."

In view of the foregoing answers, we cannot say that the ruling of the trial court in permitting the witness to testify was plainly wrong.

On the argument of this case it was insisted by counsel for the accused that the witness had been coached by her mother, and that she simply gave categorical answers to leading questions. There are many such questions and answers in the record, but an examination of the testimony of this little child discloses an amount of intelligence which seems to be quite above the average. She was asked over 100 questions on her voir dire and examination in chief, and about 100 questions on cross-examination. She was in the courtroom before strangers, and her intelligence is displayed by her answers. She was asked many questions on cross-examination which it could not have been anticipated she would be asked, and hence could not have been coached as to them.

There is much confusion in the record in the testimony of a number of witnesses, especially the adult witnesses,...