State v. Smith

• Decision Date: 13 March 1917
• Docket Number: 13549.
• Citation: 95 Wash. 271,163 P. 759
• Court: Washington Supreme Court
• Parties: STATE v. SMITH.

163 P. 759

95 Wash. 271

STATE v. SMITH.

No. 13549.

Supreme Court of Washington, En Banc.

March 13, 1917

Appeal from Superior Court, Spokane County; J. Stanley Webster Judge.

Oscar Smith was convicted of rape, and appeals. Affirmed.

Parker J., dissenting.

A. O. Colburn, of Spokane, for appellant.

John B White and Joseph B. Lindsley, both of Spokane, for the State.

HOLCOMB J.

Appellant was informed against and convicted of the crime of carnal knowledge of a female chile under the age of 10 years. On this appeal he maintains that the 8 year old prosecuting witness was not competent to testify because of her tender years and that the admission of her testimony was error. Rem. Code, § 1213, provides:

'The following persons shall not be competent to testify 1. Those who are of unsound mind, or intoxicated at the time of their production for examination; and 2. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.'

It is the settled rule of this court, together with most other jurisdictions, that 'the capacity of a witness of tender years is a question for the discretion of the trial judge, and will not be disturbed except in cases of manifest abuse of discretion.' State v. Bailey, 31 Wash. 89, 71 P. 715; Kalberg v. The Bon Marche, 64 Wash. 452, 117 P. 227; State v. Myrberg, 56 Wash. 384, 105 P. 622; Brown v. State (Tex. Cr. App.) 176 S.W. 50; State v. Lodico (N. J.) 95 A. 626; People v. Swist, 136 Cal. 520, 69 P. 223.

Before allowing the prosecuting witness to testify, the trial court examined her for the purpose of ascertaining whether she was competent so to do. During the course of this examination the prosecuting witness stated that she knew it was wrong to tell lies, that little girls who told lies went to the bad place, and when she took the oath it meant to tell the truth. As intelligence, and not age, is the proper test to be used in determining the competency of such witnesses, and as the prosecuting witness evidenced by her answers to the court's interrogatories an understanding of the oath administered to her and that it was wrong to tell falsehoods, and as the trial judge saw her and could judge of her intelligence and capacity, we think there was no abuse of discretion on the part of the trial court in allowing her to testify.

In this connection appellant also asserts that the story of the prosecuting witness is so improbable and full of contradictory statements as to render it self-destructive and show that she was not competent to testify. While the prosecutrix did say that her aunt told her what to say, in explaining this statement later she said her aunt told her to tell the truth. Even though she did contradict herself in several minor details, it does not necessarily follow that she is incompetent as a witness, or that her testimony is self-destructive, for it is not surprising that she should be more or less embarrassed and confused in detailing this harrowing tale in surroundings completely new to her. It is not to be expected that she could so do in the same cool, calm, deliberate, and coherent manner that would be expected from a person of mature years. She showed capacity to understand what was done to her and to relate it in a straightforward manner; and the mere fact that, when confused and embarrassed by her unaccustomed surroundings and severe experience, she made conflicting statements on some matters, should not of itself render her incapable of testifying, wnen we know that such differences often occur in the testimony of otherwise apparently credible adult witnesses.

It is also claimed by appellant that the evidence is insufficient to support the verdict. The contention is that the story related by the prosecutrix is so impossible as to be unworthy of belief, because of certain evidence introduced by appellant's witnesses to the effect that the act which prosecutrix testified was committed on her by appellant could not possibly have been done without leaving abrasions on the body of prosecutrix; that no such abrasions were found after an examination of prosecutrix by physicians; that shortly after the alleged act upon which this prosecution is based prosecutrix was found to be suffering with a venereal disease; that an examination of appellant disclosed he had no such disease, nor had he been treated for the same during the time he was confined in jail, which commenced shortly after the occurrence of the alleged act; and that prosecutrix at least once had had improper relations with a young boy. However, the prosecutrix told a straightforward story, which substantially proved every allegation of the complaint, and which, if be lieved by the jury, together with the fact that appellant lived with the prosecutrix's mother under suspicious circumstances, was sufficient to sustain a verdict of guilty thereon.

Although the rule may be in some jurisdictions that, where the testimony is inherently improbable and...