State v. Obie, KCD
| Decision Date | 05 November 1973 |
| Docket Number | No. KCD,KCD |
| Citation | 501 S.W.2d 513 |
| Parties | STATE of Missouri, Respondent, v. John T. OBIE, Appellant. 26572. |
| Court | Missouri Court of Appeals |
William B. Bunch, Public Defender, Sixteenth Judicial Circuit, Kansas City, Paul R. Katz, Asst. Public Defender, for appellant.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Before DIXON, C.J., and PRITCHARD and SOMERVILLE, JJ.
This is a direct appeal from a verdict and judgment of guilty of burglary, second degree, and stealing, Section 560.110, RSMo 1969, V.A.M.S.
On the morning of November 17, 1970, Nathaniel Revoal was the last member of his family to leave the home. Before departing Mr. Revoal followed his usual practice of securing all windows and doors. Later that morning he received a phone call at his place of business informing him that his house had been broken into, and that the police were then investigating the occurrence. Arriving home, Mr. Revoal found a basement window broken, a side door open, a record player on the sidewalk, and their color television set missing. Defendant was arrested a short distance from the scene.
Crucial to the state's case was the testimony of eleven year old Arthur Weaver, a participant in the burglary. After taking the stand on behalf of the state, Arthur was asked a series of preliminary questions concerning his age, his understanding of the oath he took, his address, the persons with whom he lived, and his school and grade. Following this, he proceeded to relate the events leading up to and including the burglary. It appears that defendant's role was to drive Arthur and two other participants to and from the scene of the crime. Thus, after depositing Arthur and the others some distance from the Revoal house, defendant then waited for their return. Their return, and undetected consummation of the crime, however, were 'foiled' in that a previously summoned police officer spotted Arthur setting down the Revoal television behind the parked car occupied by defendant. Thereafter, defendant and the others were placed under arrest.
The sole question presented on appeal is the correctness of the trial court's ruling that Arthur was a competent witness. At the outset it should be noted that a child over ten is prima facie competent. Section 491.060, RSMo 1969, V.A.M.S.; State v. Statler, 331 S.W.2d 526, 528 (Mo.1960), and State v. Young, 477 S.W.2d 114, 116 (Mo.1972). Further, the burden rested on defendant to prove Arthur's incompetence, State v. Crawford, 478 S.W.2d 314, 319 (Mo.1972), and the trial court's determination that Arthur was a competent witness will not be disturbed absent a clear abuse of discretion. State v. Headley, 224 Mo. 177, 123 S.W. 577, 581 (1909); State v. Parton, 487 S.W.2d 523, 526 (Mo.1972), and State v. Young, supra.
First, defendant asserts that the preliminary examination of Arthur, in the presence of the jury, to determine his competency, was improper. However, he made no objection to the complained of procedure at the trial, nor did he allege such to be error in his motion for new trial. Consequently, this point has not been properly preserved, and appellate review of same is precluded. Rule 27.20(a), V.A.M.R.; State v. Franklin, 448 S.W.2d 583, 584 (Mo.1970).
Determination of Arthur's competency as a witness is aided by a long line of cases espousing the test to be applied in making the required determination. In Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858, 862 (Mo.1936), the applicable test is stated as follows:
See also, State v. Parton, supra, and State v. Crawford, supra.
Next, defendant asserts that elements one (1) and three (3) above were not satisfied.
Regarding the first (1) element of the Burnam test, defendant draws attention to two instances of allegedly false testimony given by Arthur (predicated upon discrepancies between Arthur's testimony at defendant's preliminary hearing and that given during the trial), and contends they evidence a lack of...
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State v. Singh
...the jury was not reversible error where no objection was made and the point was not preserved in a motion for new trial. State v. Obie, 501 S.W.2d 513 (Mo.App.1973). For a case where a prosecutor for the apparent purpose of avoiding comment upon the failure of the victim's sister to testify......
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State v. Dayton
... ... State v. Parton, 487 S.W.2d 523, 525(1--4) (Mo.1972). The determination of testimonial competency of a child rests on the whole of his testimony (State v. Obie, 501 S.W.2d 513, 515(5, 6) (Mo.App.1973)), and his voir dire need not be altogether consistent before he will qualify to testify at the trial. In State v. Price, 513 S.W.2d 392 (Mo.1974), an eleven year old who witnessed a murder was competent to testify although her voir dire responses evinced a ... ...
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State v. Ball
...inconsistencies merely affect the credibility of the witness and do not incapacitate the child from giving testimony. State v. Obie, 501 S.W.2d 513, 514--515 (Mo.App.1973). We do not believe the trial court abused its discretion in finding Sabrina competent to testify. Inconsistencies prese......
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State v. McClain, 10226
...brief. State v. Gant, 490 S.W.2d 46, 49(8) (Mo.1973); State v. Gannaway, 313 S.W.2d 653, 656--657(10) (Mo.1958); State v. Obie, 501 S.W.2d 513, 514(3) (Mo.App.1973). Although we have ruled that points 2 and 3 present nothing for review by this court and that the issues involved therein were......