State v. Cooke, No. 7
Decision Date | 10 March 1971 |
Docket Number | No. 7 |
Parties | STATE of North Carolina v. Bernard COOKE. |
Court | North Carolina Supreme Court |
Atty. Gen. Robert Morgan and Asst. Atty. Gen. Sidney S. Eagles, Jr., for the State.
Charles O'H. Grimes, Raleigh, for defendant appellant.
The defendant's assignments of error are: (1) The trial court erred in ruling that the seven-year-old prosecuting witness was competent to testify, and (2) the court erred in denying defendant's motions for nonsuit and arrest of judgment.
There was no error in holding that the child who was the victim of this offense was a competent witness. There is no age below which one is incompetent as a matter of law to testify. The test of competency is the capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the jury in determining the truth with respect to the ultimate facts which it will be called upon to decide. Competency is to be determined at the time the witness is called to testify and rests mainly, if not entirely, in the sound discretion of the trial judge in the light of his examination and observation of the particular witness. State v. Bowden, 272 N.C. 481, 158 S.E.2d 493; State v. Turner, 268 N.C. 225, 150 S.E.2d 406; Artesani v. Gritton, 252 N.C. 463, 113 S.E.2d 895; State v. Merritt, 236 N.C. 363, 72 S.E.2d 754; 7 Strong's N.C. Index 2d, Witnesses § 1; Stansbury's N.C. Evidence § 55 (2d ed., 1963); 2 Wigmore on Evidence §§ 505--509 (3d ed., 1940); 3 Jones on Evidence § 757 (5th ed., 1958); Annot., 81 A.L.R.2d 386.
In MaCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321, Justice Parker (later Chief Jusice) quotes with approval from Wheeler v. United States, 159 U.S. 523, 16 S.Ct. 93, 40 L.Ed. 244 ( ), as follows:
In the instant case the prosecutrix was examined in the absence of the jury with reference to her intelligence, understanding, and religious belief concerning the telling of a falsehood. Among other things, she related where she lived, what school she attended, the names of her teachers and the grades she made. She further testified that she regularly attended the House of Prayer Church with her mother where she was taught about God and the Bible; that she knew an oath meant that she was to tell the truth and if she did not tell the truth, she would get a whipping and get punished.
The defendant contends that due to certain conflicting statements made by the prosecutrix on the Voir dire examination, the court erred in finding that the prosecutrix was a competent witness. 'Conflicts in the statements by a witness affect the credibility of the witness, but not the competency of the testimony.' 7 Strong's N.C. Index 2d, Witnesses § 2; Graham v. Spaulding, 226 N.C. 86, 36 S.E.2d 727. And where there is conflicting...
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State v. Oliver, 78
...seven, was a competent witness. There is no fixed age below which one is incompetent as a matter of law to testify. State v. Cooke, 278 N.C. 288, 179 S.E.2d 365 (1971). The test of competency of a child as a witness is the capacity of the child to understand and to relate, under the solemn ......
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...a jury could find that the offense charged had been committed and that defendant committed it, nonsuit should be denied.' State v. Cooke, 278 N.C. 288, 179 S.E.2d 365. Rape is sexual intercourse with a female person by force and without her consent. State v. Henderson, supra; State v. Prime......
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... ... Squires, 265 N.C. 388, 144 S.E.2d 49; State v. Cade, 215 N.C. 393, 2 S.E.2d 7; Stansbury, North Carolina Evidence, 2d Ed., § 55; 97 C.J.S. Witnesses § 57b.' ... And, ' ... (i)t is the consensus that mental ... 7 Strong, N.C. Index 2d, Witnesses § 1 (1968); State v. Cooke, 278 N.C. 288, 179 S.E.2d 365 (1971); State v. Bowden, 272 N.C. 481, 158 S.E.2d 493 (1968); State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966); ... ...
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