State v. Michael

• Decision Date: 28 January 1893
• Citation: 16 S.E. 803,37 W.Va. 565
• Parties: STATE v. MICHAEL.
• Court: West Virginia Supreme Court

16 S.E. 803

37 W.Va. 565

STATE v. MICHAEL.

Supreme Court of Appeals of West Virginia.

January 28, 1893

Submitted January 13, 1893

Syllabus by the Court.

1. The question of the competency of a witness is a question for the court, and not for the 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.

Error to circuit court, Cabell county.

Edward Michael was convicted of rape, and brings error. Reversed.

Campbell & Holt, Gibson, Hutchinson & Gibson, and E. S. Doolittle, 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' imprisonment 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 error, the indictment appears to be in the usual form, and to follow the language of the statute strictly. To carnally know a child under 12 years of age is a felony, within the meaning of the law; and it is unnecessary to use the word "ravish" in such indictments to define the offense. The court did not err in overruling the motion to quash.

In the instruction asked and refused, the basis of the second assignment of error, occur these words: "The jury may consider whether she has capacity to distinguish right from wrong, truth from falsehood, as well as whether she has any appreciation of the secular and moral sanction of the oath she took." The court refused to give this instruction with this clause in it, probably because it referred the matter of the competency of the witness to the determination of the jury, after the court had already determined her competency, and in doing so had already passed on the substance of the instruction. The competency of a witness is a question for the court, and ought not to be left to the determination of the jury, because it is a question of legal ascertainment, requiring wisdom, knowledge, and experience.

The third exception in this case raises the question of competency. The court, after asking the witness a few short and rather leading questions, determined she was competent admitted her evidence to go to the jury, and then refused to exclude it on motion of the accused. In such cases the trial court has a very wide discretion, and this court will not review its action unless the error is palpable and flagrant. At 14 years of age a witness is presumed to be competent. Under that age, no such presumption arises. Under the age of 6,...