State v. Allen
| Decision Date | 09 March 1967 |
| Docket Number | No. 38621,38621 |
| Citation | 70 Wn.2d 690,424 P.2d 1021 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Harold ALLEN, Appellant. |
Stanley B. Allper, Seattle, for appellant.
Charles O. Carroll, Pros. Atty., David Beitz, Deputy Pros. Atty., Seattle, for respondent.
Defendant's appeal presents three questions. They spring from his trial and his jury conviction of the crime of taking indecent liberties on the person of a 6-year-old female child.
Defendant urges that the trial court erred when it admitted into evidence the testimony of the 6-year-old prosecuting witness and when it refused to strike her testimony.
RCW 5.60.050 provides in part:
Who are incompetent. The following persons shall not be competent to testify:
* * *
(2) Children under ten years of age, who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.
One legal commentator 1 states that the child must not only be able to relate facts truly (which refers to the time of trial), but must have been capable of receiving just impressions of the facts (which obviously refers to the time of the event).
The girl was not disqualified as a witness as a matter of law by reason of her youth. State v. Ridley, 61 Wash.2d 457, 378 P.2d 700 (1963). Intelligence, not age, is the proper criterion to be used in determining the competency of a witness of tender years. State v. Smith, 3 Wash.2d 543, 101 P.2d 298 (1940).
The true test of the competency of a young child as a witness consists of the following: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.
The determination of the witness's ability to meet the requirements of this test and the allowance or disallowance of leading questions (State v. Davis, 20 Wash.2d 443, 446, 147 P.2d 940 (1944)), rest primarily with the trial judge who sees the witness, notices his manner, and considers his capacity and intelligence. These are matters that are not reflected in the written record for appellate review. Their determination lies within the sound discretion of the trial judge and will not be disturbed on appeal in the absence of proof of a manifest abuse of discretion. State v. Ridley, 61 Wash.2d 457, 378 P.2d 700 (1963), and authorities cited.
The record does not disclose that the experienced trial judge abused his discretion when he admitted into evidence the testimony of the prosecuting witness.
Defendant contends that the admissible evidence does not support the verdict. We do not agree.
His argument is based primarily upon the alleged inadmissibility of the testimony of the prosecuting witness, an issue we have already resolved. In addition, however, there is the testimony of the 13-year-old sister (whose competence to testify is not challenged), who testified that she saw defendant commit the act with which he is charged. Defendant's only answer (other than a denial) is that it would...
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State v. Swan
...of the trial judge and will not be disturbed on appeal in the absence of proof of a manifest abuse of discretion. State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967); see also State v. Griffith, 45 Wash.App. 728, 733, 727 P.2d 247 At the competency hearing, defense counsel asked R.T. ......
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State v. Brousseau
...¶ 11 The court evaluated J.R.'s competency on the basis of Dr. Mabee's testimony, using the factors established in State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967), namely (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the......
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State v. CJ
...capacity to understand simple questions about it. State v. Swan, 114 Wash.2d 613, 645, 790 P.2d 610 (1990) (citing State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967)). The determination of competency rests primarily with the trial judge who sees the witness, notices his or her manner......
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State v. Karpenski
...statements under RCW 9A.44.120. Karpenski then raised the issue of Z's competence in his trial brief, citing State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967), which dealt only competence of a witness at trial. And at the trial court hearing on competence and reliability of the stat......
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Table of Cases
.... . . . . . . . . . . . 24.04; 51.02[3]; 51.11[3] Allen, In re Marriage of, 78 Wn. App. 672, 898 P.2d 1390 (1995) 27.07 Allen; State v., 70 Wn.2d 690, 424 P.2d 1021 (1967) . . . . . . . . . . . . . . . . . . . . . 48.07[2] Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 848 P......
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§48.07 Special Evidentiary Considerations
...prior to the child's testimony. The guidelines for holding the child competent to testify are set out in cases such as State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967), and Jenkins v. Snohomish County Public Utility District No. 1, 105 Wn.2d 99, 713 P.2d 79 (1986). See also State v. Ryan,......