State v. Wilson
| Decision Date | 06 February 1952 |
| Docket Number | No. 32380,32380 |
| Citation | 46 O.O. 437,103 N.E.2d 552,156 Ohio St. 525 |
| Parties | , 30 A.L.R.2d 763, 46 O.O. 437 STATE v. WILSON. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The deposition of a child under ten years of age is not admissible in evidence if taken without a preliminary examination of the child by the court to determine the competency of the child to testify, in compliance with the requirements of Section 11493, General Code, and a finding by such court that the child is competent to testify.
2. Examination to determine the competency of a child under ten years of age to testify, as required by Section 11493, General Code, may be made, preliminary to taking the child's deposition, by any judge who is a member of the particular court in which the cause is pending and wherein it will be tried.
3. The competency of a child under ten years to age to testify cannot be determined solely from the questions and answers contained in the child's deposition.
The defendant was indicted by the grand jury of Summit county, Ohio, on four counts involving his alleged conduct with respect to two girls each nine years of age. The indictment was drawn under Section 12423-1, General Code. The first count charged indecent and improper liberties with the person of the one girl, and the second count with improper exposure of his person to her. The third and fourth counts were identical with counts one and two respectively but charged the conduct as having occurred with respect to the other girl.
The defendant pleaded not guilty, waived trial by jury and elected to be tried by the court.
Because of the necessity of one of the girls accompanying her parents to a new place of residence outside the United States and her consequent inability to be present at the trial, the state, through the prosecuting attorney, procured a commission authorizing the taking of her deposition and her testimony was so taken and recorded. The child did not appear before a member of the court in connection with the taking of the deposition and was not questioned by any member of the court as to her qualifications to testify. At the opening of the taking of the deposition the child was sworn by the commissioner in the usual way and the prosecuting attorney on behalf of the state then questioned the child as to her understanding of the meaning and significance of an oath. She was later cross-examined by the defendant's attorney upon that general subject. Her answers were recorded as part of her testimony.
After examination of the witness in chief had been concluded and while cross-examination was in progress, the proceeding was adjourned so that the attorneys might confer with the presiding judge of the Common Pleas Court of Summit County and at that time the prosecuting attorney moved and requested that the presiding judge then examine the child to determine her competency to testify. The attorney for the defendant questioned the authority of the presiding judge to make such examination and raised the question whether such examination could be conducted by anyone other than the judge presiding at the actual trial of the case. After considerable discussion the presiding judge expressed the belief and held that he did not possess the authority to pass upon the competency of the child to testify and that such ruling as to her competency would be made by the trial judge after considering the answers recorded in the deposition. When the deposition was offered at the trial the attorney for the defense challenged its admissibility but it was admitted in evidence over the objections of the defendant.
In his finding rendered after the close of the trial the trial judge stated: 'Although the court had no opportunity to see this witness it is of the opinion from an examination of the record and the qualifying questions and the nature of the answers that were given throughout the testimony that this girl was a competent witness.'
Relying, at least in part, upon the testimony so presented by this deposition, the trial judge found the defendant guilty under counts one and two but found that the offense committed was a misdemeanor only and imposed a nominal fine as the sole penalty. Acquittal was granted with respect to counts three and four of the indictment.
The defendant claims that the trial court committed error prejudicial to him in admitting the deposition in evidence and further claims that the state failed to prove him guilty beyond a reasonable doubt. The Court of Appeals affirmed the judgment of the trial court. Other pertinent facts appear in the opinion.
Alva J. Russell, Prosecuting Atty. and Robert Azar, Akron, for appellee.
Paul C. Weick and Kenneth A. Mason, Akron, for appellant.
In determining the admissibility of the deposition in question a problem is presented which apparently seldom arises. The diligent labor of industrious counsel has failed to produce any authorities wholly in point and the independent research of this court has been equally unproductive. This leads the court to conclude that it has not been a common practice in the United States to present the testimony of children of tender years particularly in criminal cases, by way of deposition.
Section 10 of Article I of the Ohio Constitution provides in part: '* * * provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court. * * *'
Pursuant to this authority the General Assembly of Ohio enacted legislation authorizing the taking of depositions and regulating their use.
Section 13444-1, General Code, provides: 'The rules of evidence in civil causes insofar as the same are applicable, shall govern in all criminal causes except as otherwise provided in this code.'
Section 13444-10, General Code, provides in part: 'Testimony taken * * * by deposition at the instance of the defendant, or the state, may be used whenever the witness giving such testimony * * * could not for any reason be produced at the trial * * *.'
Section 13444-11, General Code, authorizes the taking of the deposition of a material witness either for the state or for the defendant when such witness resides out of the state or is sick or infirm or about to leave the state; such deposition to be taken under commission issued by the court upon showing of cause in compliance with that section. In this instance the parties complied with the requirements of that section of the Code.
There is no statutory provision having specific erference to the taking of depositions of young children and hence no prohibition against such being done.
The most important section of the General Code to be considered in this connection is Section 11493 which provides: 'All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.'
The statutes of Ohio contain nothing which would prohibit the introduction in evidence of the deposition of a child under ten years of age but it is to be presumed that such child must be competent to testify. This means that there must be a determination that the child is capable of receiving just impressions of facts and transactions respecting which it is examined and of relating them truly, in compliance with the requirements of Section 11493. That the child must understand the nature of an oath and the penalties for its violation has long been considered by Ohio courts as inherent in the test of competency prescribed in Section 11493. Such understanding is required by courts generally throughout the United States. 58 American Jurisprudence, 98, Section 130.
When the child is presented in court and the fact is revealed that the age of ten has not been reached, it is the duty of the trial judge to immediately examine the child, without participation or interference of counsel, to determine the child's competency to testify. Administration of the oath is postponed until the court has made such determination and has found the child competent. If the court determines that the child is not competent, the child is not permitted to testify and consequently the oath is not administered. 58 American Jurisprudence, 100, 101, Sections 133 and 134. In this connection the following statements are pertinent:
Underhill's Criminal Evidence, 722, Section 377.
'* * * this preliminary examination to determine such competency [of the child] should be undertaken exclusively by the trial court.' Wharton's Criminal Evidence, 2032, Section 1181.
'The preliminary determination of capacity is for the judge, not the jury.' 2 Wigmore on Evidence, 590, Section 497(c).
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