State v. Ranger

• Decision Date: 08 July 1953
• Citation: 98 A.2d 652,149 Me. 52
• Parties: STATE v. RANGER.
• Court: Maine Supreme Court

Page 652

98 A.2d 652

149 Me. 52

STATE v. RANGER.

Supreme Judicial Court of Maine.

July 8, 1953.

Frederic S. Sturgis, County Attorney, Portland, for plaintiff.

I. E. Cohen, Portland, for defendant.

Before MERRILL, C. J., and THAXTER, FELLOWS, MURRAY, WILLIAMSON, and TIRRELL, JJ.

FELLOWS, Justice.

This is an indictment brought in the Superior Court for Cumberland County against the respondent Alva Ranger for taking indecent liberites with a minor under the age of sixteen years. The jury returned a guilty verdict. During the trial the respondent seasonably took exceptions to various rulings of the Court on the ground that they were erroneous and prejudicial. Exceptions are sustained.

First and Second Exceptions

The first witness called by the State was Barbara Anne Reichert, age 10, and she was questioned by counsel on the matter of her qualifications. Some of the questions and her answers are as follows:

'Q. What is the difference between the truth and a lie, Barbara? A. No answer.

'Q. Do you know? A. (Shakes head) No.

'Q. Do you know what it is to take an oath? A. (Shakes head) No.

'Q. For the record, your answer is you don't know the difference between the truth and a lie; is that right? A. (Nods) Yes.

'Q. You have talked this case over with your mother? A. (Nods) Yes.

'Q. Did your mother tell you what to say? A. (Nods) Yes.

'Q. Did she tell you you would get a licking or something like that if you didn't tell? Did she tell you she would hit you with a strap or something? A. Hit me with her hand.

'Q. Did she tell you what to say when you went upstairs to the Grand Jury to tell your story, when you went upstairs to tell the story to those people up there, you went with your mother? A. Yes, I went with my mother.

'Q. Sure; your mother was there. Didn't your mother tell you what to tell those people in there? A. (Nods) Yes.

'Q. Did you hear that question? Did the Sergeant (Officer Kearns), the man who stood up in the back tell you what to say? A. (Nods) Yes.

'Q. What is the difference between right and wrong, do you know? A. (Shakes head) No.

'Q. You don't know? May that go for the record? A. (Shakes head) No.

'Q. Did you tell your mother the night you came home that night what had happened? A. (Nods) Yes.

'Q. Did she tell you when you came home what you should say? A. (Nods) Yes.

'Q. Was it any different than what you told her that night? A. (Nods) Yes.'

Another witness for the State was Sharon Anne Rickett, age 8, and she was questioned on the second day as follows:

'Q. Did anyone explain the difference between truth and lies to you? A. Yes.

'Q. Who? A. My mother.

'Q. Did she tell you in case they asked you that question on the stand what to answer? A. Yes.

'Q. That is right. She told you if the attorney, me, the lawyer, asked you the question, you are supposed to answer that there is a difference? A. (Nods) Yes.

'Q. Is that right? A. Yes.

'Q. Up to yesterday you didn't know the difference, did you? A. (Shakes head) No.

'Q. Do you know what the truth means? A. No.

'Q. You don't know what an oath means, do you? A. No.'

The presiding Justice permitted both children to testify.

It has long been recognized in Maine that a child of tender years, capable of distinguishing between good and evil, may in the discretion of the Court be examined on oath. If permitted to testify, after preliminary examination as to qualfication, the statements of such a witness are submitted to the consideration of the jury who should regard the age, the understanding, and the sense of accountability for moral conduct, in coming to their conclusion. State v. Whittier, 21 Me. 341; State v. Dorathy, 132 Me. 291, 170 A. 506. Greenleaf thus states the rule: 'But in respect to children, there is no precise age within which they are absolutely excluded, on the presumption that they have not sufficient understanding. At the age of fourteen, every person is presumed to have common discretion and understanding, until the contrary appears; but under that age, it is not so presumed; and therefore inquiry is made as to the degree of understanding which the child, offered as a witness, may possess; and if he appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he is admitted to testify, whatever his age may be. This examination of the child, in order to ascertain his capacity to be sworn, is made by the Judge, at his discretion; and though, as has been just said, no age has been precisely fixed, within which a child shall be conclusively presumed incapable, yet, in one case, a learned Judge promptly rejected the dying declarations of a child of tender years, observing, that it was quite impossible that she, however precocious her mind, could have had that idea of a future state, which is necessary to make such declarations admissible. On the other hand, it is not unusual to receive the testimony of children under nine, and sometimes even under seven years of age, if they appear to be of sufficient understanding; and it has been admitted even at the age of five years. If the child, being a principal witness, appears not yet sufficiently instructed in the nature of an oath, the Court will, in its discretion, put off the trial, that this may be done.' I Greenleaf on Evidence, 6th Ed., 476, Sec. 367.

The question of the competency of a child to testify is addressed largely to the discretion of the presiding Justice, but it is judicial discretion. It must not be an arbitrary decision. It must be based, not only on the appearance of the child, but it also must be based on what answers the child makes to show that he, or she, is qualified to testify. The proposed child witness should know the difference between truth and falsehood, and apparently must be able to receive accurate impressions of facts, and be able to relate truly the impressions received. The child witness should have sufficient capacity to understand, in some measure, the obligation of an oath; or to realize that it is wrong to falsify, and that if he does tell an untruth that he is likely to be punished. See 58 Am.Jur. 'Witness', 97, Secs. 129-136 and cases cited.

In this case the respondent was fond of children. He had been a Scout Master, a 4-H Club leader, had been in charge of girl's summer camps, and the like, for thirty-five years. Because they asked him for a ride, he took at least three girls, on this day in question, to an apartment where he adjusted or repaired an oil burner. Three children played 'hide and seek' in the apartment and insisted that the respondent give them 'piggy back rides.' The alleged assault, which was to the effect that the respondent completely felt of her under her clothes, took place while one or more of the other children were there, and with all doors of the apartment open. The mother testified that she had forbidden her daughter to go to ride and when the daughter came home she 'was happy when she came in.' The mother says she 'gave her a good whack' because she was late. The child testified she got 'a licking.' The child cried at the punishment and later when going to bed the child made the 'complaint' to the mother, which is the subject of the third and fourth exceptions in this case.

Each of these two children was presented as an important witness in a serious case, and each makes statements in preliminary examination that show positively that they did not know the difference between truth and falsehood. The testimony of each is undoubtedly colored, if not prevaricated, through the coaching and instruction of a mother, as both preliminary examinations indicate.

Although many ancient proverbs indicate that some of our ancestors believed that only truth could come from...