State v. Manlove, 87

Decision Date19 April 1968
Docket NumberNo. 87,87
Citation1968 NMCA 23,79 N.M. 189,441 P.2d 229
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Lonnie K. MANLOVE, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

OMAN, Judge.

Defendant appeals from a judgment of conviction, entered upon three separate verdicts of guilty, whereby he was convicted of the crimes of (1) contributing to the delinquency of a minor, (2) aggravated sodomy, and (3) sexual assault by indecent handling or touching of another person under the age of sixteen years. He relies upon four points for reversal, and these points will be considered in the order of their presentation in the brief in chief.

The first contention is that the female child upon whom the criminal acts were committed 'was not competent to testify in this case.' She was six years of age at the time of trial. Section 20--1--8, N.M.S.A.1953 provides:

'Common-law disqualifications--Affect credibility only--Testimony of children.--Hereafter in the courts of this state no person offered as a witness shall be disqualified to give evidence on account of any disqualification known to the common law, but all such common-law disqualifications may be shown for the purpose of affecting the credibility of any such witness and for no other purpose: Provided, however, that the presiding judge, in his discretion, may refuse to permit a child of tender years to be sworn, if, in the opinion of the judge, such child has not sufficient mental capacity to understand the nature and obligation of an oath.'

The child was sworn without objection. After asking her some preliminary questions as to her name, age, grade in school, and her understanding of what it means to tell the truth, the district attorney asked if the court had any question about the child's competency. The court had none, but permitted defense counsel, upon request, to examine her at considerable length on such matters as her ability to count and recite the alphabet, how many people lived in her house, the church she attended, what she learned at church, and her understanding of what it means to tell the truth. The court also asked some questions of her, and, upon being told by the child that she would tell the truth about what happened, the court announced that he was going to permit her to testify.

She was then questioned at length on both direct and cross examination as to the facts, and no objection was over made to her competency or qualifications as a witness. A motion was made at the close of the State's case to direct a verdict for defendant on the ground of insufficiency of the evidence to sustain a conviction, but no question was raised as to the child's competency to testify. Ordinarily, the burden of showing the incompetency of a witness is upon the party asserting the incompetency. Rosche v. McCoy, 397 Pa. 615,156 A.2d 307, 81 A.L.R.2d 377 (1959); People v. Stewart, 107 Cal.App.Supp. 757, 288 P. 57 (1930); Hale v. Commonwealth, 196 Ky. 44, 244 S.W. 78 (1922); State v. Langford, 45 La.Ann. 1177, 14 So. 181 (1893); 3 B. Jones, Evidence § 815 (Supp.1967).

In Territory v. De Gutman, 8 N.M. 92, 42 P. 68 (1895), it was held that permitting a ten year old child to testify was not an abuse of discretion, and that 'There is no precise age at which a child's evidence is absolutely excluded.'

In State v. Armijo, 18 N.M. 262, 135 P. 555 (1913), a fifteen year old child, who was 'apparently ignorant and illiterate,' was permitted to testify. The Supreme Court of New Mexico, in rejecting the claim of error in admitting the testimony of this witness, cited the statute above-quoted, and then stated:

'The trial court had an opportunity to examine this witness and observe his demeanor, and could judge his mental capacity from his manner of testifying. This Court could not intelligently review the discretion of the trial judge in the matter of question as to whether a child of tender years possesses sufficient mental capacity to understand the nature and obligation of an oath.

'The legislature, in its wisdom, has vested the trial court with a discretion in such matters, which will not be reviewed, by this Court, except for a gross abuse of such discretion. * * *'

In State v. Ybarra, 24 N.M. 413, 174 P. 212 (1918), our Supreme Court reaffirmed its position set forth in State v. Armijo, supra, that it 'will not review the discretion of the trial court in permitting a child of tender years to testify, except in a clear case of abuse of discretion.' In rejecting the contention that the trial court had abused its discretion in permitting the child to testify, the court stated:

'The fact that a child states in express terms that he does not understand the nature of an oath is not of itself sufficient ground for his exclusion as a witness, where it clearly appears that the child has sufficient intelligence to understand the nature of an oath and to narrate the facts accurately, and knows that it is wrong to tell an untruth and right to tell the truth, and that if he told an untruth he would be punished, and, from other facts, that he is in fact competent. 7 Ency. of Evidence, 274. In Williams v. United States, 3 App.D.C. 335, the court said:

"Courts of justice should regard substance, not words. A child that has an adequate sense of the impropriety of falsehood does understand the nature of an oath in the proper sense of the term, even though she may not know the meaning of the word 'oath' and may never have heard that word used."

Defendant urges that he is unable to find a case in which an appellate court has passed on the competency of a child to testify, after the child has disclosed to the court that he or she did not know what it means to tell a lie. But he urges that this question was in fact presented in Whitehead v. Stith, 268 Ky. 703, 105 S.W.2d 834 (1937). In that case the trial court was held to have committed a palpable abuse of discretion in permitting a six year old child to testify, because of the brief examination of the child upon which the determination of competency was predicated, and because the child, in answering a question by the court, stated he did not know what it means to tell the truth.

In the present case the child answered in the negative to questions in which she was asked if she understood that it was wrong to tell a story or a lie. However, she explained, 'I don't know what it means to tell a lie.'

When questioned about being truthful, she testified as follows:

'Q. Do you know what it is to tell the truth?

'A. Yes.

'Q. Do you understand what will happen to you if you don't tell the truth here today?

'A. Yes.

'Q. What will happen?

'A. I will be punished.

'* * *

'Q. Do you know what telling the truth is?

'A. Yes.

'* * *

'THE COURT: Well, do you know what I mean by 'punished'?

'A. Yes.

'* * *

'THE COURT: Well, will you tell the truth about what happened?

'A. Yes.'

As held in the foregoing cited cases, the capacity of children to testify is not determined alone on age. In each instance the capacity of a child of tender years is to be investigated, and the trial court must determine from inquiries the child's capacities of observation, recollection and communication, and also the child's appreciation or consciousness of a duty to speak the truth. It then lies within the sound discretion of the trial court to determine, from the child's intelligence and consciousness of a duty to be truthful, whether or not the child is competent to testify as a witness. See in addition to the foregoing cited cases 2 J. Wigmore, Evidence §§ 492--496 and ch. XXI (3d ed. 1940); 3 B. Jones, Evidence §§ 757--759 and 815 (5th ed. 1958); Wheeler v. United States, 159 U.S. 523, 16 S.Ct. 93, 40 L.Ed. 244 (1895); State v. Berry, 101 Ariz. 310, 419 P.2d 337 (1966); People v. Trolinder, 121 Cal.App.2d 819, 264 P.2d 601 (1953); State v. Jones, 360 Mo. 723, 230 S.W.2d 678 (1950); State v. Wyse, 429 P.2d 121 (Wash.1967); State v. Allen, 424 P.2d 1021 (Wash.1967).

We are of the opinion that the trial court properly exercised its discretion in determining the competency of the child to testify. However, even if we entertained doubts as to the claimed abuse of discretion, we could not properly consider defendant's contention. The question of the compentency of a witness cannot be raised for the first time on appeal. Pooley v. State, 116 Ind.App. 199, 62 N.E.2d 484 (1945); Hildreth v. Key, 341 S.W.2d 601 (Mo.App.1960); Kiefer v. State, 258 Wis. 47, 44 N.W.2d 537 (1950); see also Batchelor v. Charley, 74 N.M. 717, 398 P.2d 49 (1965); Entertainment Corporation of America v. Halberg, 69 N.M. 104, 364 P.2d 358 (1961); Koran v. White, 69 N.M. 46, 363 P.2d 1038 (1961).

Defendant next asserts that the trial court erred in permitting the voir dire examination of the child in the presence of the jury. He cites no authority for his position. He not only failed to object, or to request that the examination be conducted in the absence of the jury, but actively participated in the examination.

The question as to competency of a witness is a matter to be resolved by the court. White v. State, 203 Ga. 340, 46 S.E.2d 500 (1948); James v. Fairall, 168 Iowa 427, 148 N.W. 1029 (1914); Apodaca v. Baca, 73 N.M. 104, 385 P.2d 963 (1963); State v. Romero, 34 N.M. 494, 285 P. 497 (1930); State v. Ulibarri, 28 N.M. 107, 206 P. 510 (1922); Commonwealth v. Repyneck, 181 Pa.Super. 630, 124 A.2d 693 (1956); State v. Moorison, 43 Wash.2d 23, 259 P.2d 1105 (1953); 2 J. Wigmore, Evidence §§ 487 and 497 (3d ed. 1940); 3 B. Jones, Evidence § 815 (5th ed. 1958).

The authorities are not in accord on the question of whether the voir dire examination as to competency should be conducted in the presence or in the absence of the jury. The following support the position that it...

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