State v. Michael
| Citation | 37 W.Va. 565,16 S.E. 803 |
| Court | Supreme Court of West Virginia |
| Decision Date | 28 January 1893 |
| Parties | STATE v. MICHAEL. |
STATE
v.
MICHAEL.
Supreme Court of Appeals of West Virginia.
Jan. 28, 1893.
1. The question of the competency of a witness is a question forthecourt, and notforthe jury, and when a witness is offered in a criminal case, and a doubt is raised as to the competency of such witness, it is the duty of the court to determine that question upon a careful examination of the witness as to age, capacity, and moral and legal accountability.
2. If the proposed witness is an infant of such tender years and mind as to be legally irresponsible for her conduct, and to have no conception of the legal or moral obligation of an oath, nor of the pains and penalties for false swearing, she is not a competent witness.
3. A witness introduced in this case on behalf of the state is five years of age, of ordinary intelligence, with very little or no knowledge of moral accountability, and, clearly outside of the pale of legal responsibility, is held competent to testify, without a sufficient preliminary examination by the trial court to determine her competency. This was error, which will be reviewed by this court.
4. If, on the examination of such witness, her incompetency appears, it is the duty of the court, on motion of the accused, to exclude her evidence from the jury, and it would be error for the court to refer the question of competency to the jury, either by instruction or otherwise.
(Syllabus by the Court.)
Error to circuit court, Cabell county.
Edward Michael was convicted of rape, and brings error. Reversed.
Campbell & Holt, Gibson, Hutchinson & Gibson, and E. 8, Dooiittle, for plaintiff in error.
Alfred Caldwell, Atty. Gen., for the State.
Dent, J. This is a prosecution against Edward J. Michael for carnal knowledge of Garnet L. Pool, an infant five years of age. The case was tried at the fall term of the Cabell county circuit court. The jury found the accused guilty, and the court sentenced him to 10 years' imprison ment in the penitentiary. From this judgment the accused applied for and obtained a writ of error to this court, and now here assigns five separate errors committed by said trial court to his prejudice: (1) Failure to quash the indictment; (2) refusal to give a certain instruction asked; (3) the incompetency of the witness Garnet L. Pool; (4) the failure on the part of the state to prove penetration, the distinguishing element of this crime.
As to the first assignment of...
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