Schamroth v. State, 33650
| Decision Date | 16 July 1951 |
| Docket Number | No. 2,No. 33650,33650,2 |
| Parties | SCHAMROTH v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1 (a) The trial court may, of his own volition, propound questions to a child
witness to determine whether such witness understands the nature of an oath, even though no objection has been interposed on the ground of incompetency.
(b) It is within the discretion of the trial court to conduct this examination in the presence of the jury. From the answers given by the witness to the questions propounded, the trial court will determine the competency of the witness, while the credibility is a question for the jury.
2. Where impeachment is sought on the ground that the witness entertains hostile feelings toward the opposite party, the reasons for such feelings may not be inquired of until a proper foundation is laid.
3. The verdict is supported by the evidence and, having the approval of the trial court, will not be disturbed by this court.
The defendant was indicted and tried in the Superior Court of Fulton County on three indictments, each charging him with the offense of molesting a child under the age of sixteen years, the three indictments having reference to three different children. This offense is made a felony under the act of 1950 (Ga.L.1950, p. 387). The cases were tried together before a jury. The jury found the defendant not guilty under two of the indictments, and found him guilty under the indictment charging him with taking indecent liberties with one Barbara Ann Plunkett. Upon conviction under this indictment he filed a motion for a new trial on the general grounds which was later amended by the addition of four special grounds, and the overruling of this motion is assigned as error.
Daniel Duke, Gilbert Cohen, Hugh C. Carney, Atlanta, for plaintiff in error.
Paul Webb, Sol. Gen., C. O. Murphy, Atlanta, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts).
1. The first, second and fourth grounds of the amended motion for a new trial will be considered together, as they deal with the right of the court to examine the witnesses for competency in the presence of the jury, and of his charge on this question. Barbara Ann, the State's chief witness, was ten years old and in the fifth grade of school. At the request of the Solicitor General that the court examine her upon her qualifications as a witness the court elicited this information, together with a statement as to her Sunday School and church attendance and the distinction in her mind between right and wrong. Counsel for the defendant at this point objected to the examination being conducted in the presence of the jury on the ground that no attack had been made on the character of the witness, and that questions calling for an answer which would tend to add credibility or to bolster the witness without an attack would be improper. The objection was overruled, and the court thereafter questioned the witness as to her knowledge of right and wrong, the evils of telling lies, the identity of God, and her belief in the life after death. The witness making satisfactory responses to these questions, the court ruled that she was competent.
The same question arose upon the examination of Joan Anchors, aged fourteen, who testified as to her school and church membership and answered certain questions in elementary theology propounded by the court. Objections were urged on the ground that the questions, under the guise of determining the witness' intelligence and understanding, actually dealt with her specific habits, thus tending to surround her with the odor of sanctity and bolster her character for credibility.
Objection is also made to the following charge of the court: The third and last sentences of this charge are quoted from Frasier v. State, 143 Ga. 322(5), 85 S.E. 124. The first sentence is a restatement of Code, § 38-1601. The second sentence is found in Code, § 38-1607. The substance of the third sentence is also to be found in Young v. State, 122 Ga. 725, 50 S.E. 996, 997, in which case it is further held as follows: 'The jury also had the right to hear the test as to her competency; and, while the judge may have been satisfied prima facie that she was competent, the jury at last were the judges of whether they would credit her testimony, or not, after hearing her examined concerning her knowledge of the nature of an oath.' 'It has been held that the jury, who see the child, are the best judges as to whether her testimony is entitled to credit.' Warthen v. State, 11 Ga.App. 151, 74 S.E. 894; Young v. State, 72 Ga.App. 811, 35 S.E.2d 321.
That the court may, of his own volition, propound questions to the witness for the purpose of eliciting the truth is well established. Johnson v. A. Leffler Co., 122 Ga. 670(7), 50 S.E. 488; Bank of Commerce v. First National Bank of Ocilla, 32 Ga.App. 410(2), 123 S.E. 736; Nelms v. State, 18 Ga.App. 92(3), 88 S.E. 917. The question of competency is largely within the discretion of the trial court, and his decision on this matter will not be reversed unless it appears to be a manifest abuse thereof. Gordon v. State, 186 Ga. 615, 198 S.E. 678; Bell v. State, 164 Ga. 292(2), 138 S.E. 238. A child over fourteen is presumed competent to testify, but to hold that this presumption is so conclusive that the...
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