State v. Yates
| Decision Date | 29 October 1917 |
| Docket Number | No. 31913.,31913. |
| Citation | 164 N.W. 798,181 Iowa 539 |
| Parties | STATE v. YATES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Mahaska County; Henry Silwold, Judge.
Defendant was indicted and convicted of sodomy, and appeals to this court. Affirmed.C. C. Orvis and O. C. G. Phillips, both of Oskaloosa, for appellant.
H. M. Havner, Atty. Gen., and Maxwell A. O'Brien, Co. Atty., and McCoy & McCoy, all of Oskaloosa, for the State.
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, first, that the evidence against him was wholly insufficient to justify the verdict. A careful reading of the record discloses that Glenn Doner was but 7 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.
[1] 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 14 years of age, and it is said that anciently a child less than 9 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 (Code 1897, § 4601) provides:
“Every human being of sufficient capacity to understand the obligation of an oath is a competent witness.”
[2] 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:
“Q. What is your name? A. Glenn Doner. Q. How old are you? A. Seven. Q. What is your birthday? A. September 28th. Q. Do you go to school? A. Yes, sir. Q. What room are you in? A. In the third room. Q. Do you go to Sunday School? A. Yes, sir. Q. Glenn, if the judge here would have you stand up and hold up your hand like this (indicating), and so have you to promise to testify to the truth, the whole truth, and nothing but the truth, would that mean to tell a lie? A. No, sir. Q. What would that mean to you? A. To tell the truth, and nothing but the truth. Q. Is it right to tell a lie? A. No, sir. Q. What would happen to you if you told a lie? A. Get punished.
By the Court: If I should administer the oath to you, that is, to swear you as suggested by the county attorney, and you would then tell a falsehood, what would become of you? Would you be sent to the penitentiary for perjury, or punished in some way by the state? A. Yes, sir.”
Thereupon, over the objection of defendant's counsel, the witness was sworn and permitted to testify.
[3] 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.
[4] 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 tender years have been allowed as witnesses, and in some cases where the showing of capacity was not nearly as satisfactory as in the case at bar. See State v....
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