State v. Yates
Decision Date | 29 October 1917 |
Docket Number | 31913 |
Citation | 164 N.W. 798,181 Iowa 539 |
Parties | STATE OF IOWA, Appellee, v. ROY YATES, Appellant |
Court | Iowa Supreme Court |
Appeal from Mahaska District Court.--HENRY SILWOLD, Judge.
DEFENDANT was indicted and convicted of sodomy, and appeals to this court.
Affirmed.
C. C Orvis and O. C. G. Phillips, for appellant.
H. M Havner, Attorney General, Maxwell A. O'Brien, County Attorney, and McCoy & McCoy, for appellee.
Defendant is accused of the crime of sodomy alleged to have been committed upon the person of one Glenn Doner on or about the 27th day of October, 1916, in the county of Mahaska, in the state of Iowa. In the court to which the indictment was returned, defendant entered a plea of not guilty, was tried to a jury and convicted, and from this conviction appeals, and urges that the evidence against him was wholly insufficient to justify the verdict.
A careful reading of the record discloses that Glenn Doner was but seven years of age; that his testimony was relied upon by the State to sustain the charge against the defendant; that without his testimony the verdict cannot stand; that with it the verdict is sustained and justified.
It was urged on the trial and is urged here that the evidence of Glenn Doner should not have been received because of his tender age; that he was not competent as a witness because he lacked that understanding necessary to a proper appreciation of the obligation of an oath; and that an oath had no binding force upon his conscience, and could not, therefore, limit or control him in the giving of his testimony.
It has been held by this court that there is no presumption in favor of the competency of one under fourteen years of age, and it is said that anciently a child less than nine years of age was conclusively presumed to be incompetent of understanding the obligation of an oath. In these modern times, the courts are holding that, while there is no presumption in favor of competency, there is no presumption against competency; that the competency of a child depends upon his intelligence and capacity for understanding. Our statute provides:
"Every human being of sufficient capacity to understand the obligation of an oath is a competent witness." Section 4601, Code, 1897.
There is no age limit placed in the statute. Competency is, therefore, a fact to be determined at the time the child is offered as a witness, and the test is whether the child has sufficient capacity, in fact, to understand the obligation of an oath at the time he is offered. The test is not whether the child, at some previous time or place, understood the obligation of an oath, but whether the child, at the time he is offered in the particular case, understands and appreciates this obligation. As said, this boy was a witness against the defendant. Before he was sworn, these questions were propounded to him:
Thereupon, over the objection of defendant's counsel, the witness was sworn and permitted to testify.
As said in many authorities cited hereafter, it is not necessary that a child should be able to define an oath or to give a correct definition of perjury or testimony. This is not determinative of his capacity. If it is shown that he comprehends and understands that, upon taking the oath, he is bound thereafter to tell the truth and not to lie, he is competent. If he understands that, upon the formal administration of the oath by the judge, he is bound thereafter to a statement of the truth and only the truth in his testimony, and that he has pledged himself not to tell a lie, he is competent. The holding generally is that, if the answers indicate an intelligence sufficient to satisfy the court that the witness was impressed, and understood that it was his duty to tell the truth on such solemn occasion, rather than to tell a lie, and it is made apparent by his answers that he is sensible of the wickedness of telling a falsehood and comprehends the danger of not telling the truth, he is then competent as a witness. He is then shown to have sufficient capacity to understand the obligation of an oath.
Some claim is made that, when this child was before the committing magistrate, his answers did not indicate that he understood the obligation of an oath. The question here is not what he understood on some prior occasion, but rather what he understood at the time he was called upon to testify in this case. The showing here is very satisfactory on that question. The court did not err in receiving his testimony. This question has been so fully discussed by this court heretofore, in cases cited hereafter, that we do not deem it necessary to further discuss it. An examination of these cases will show that age does not altogether control; that children of much more...
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