Young v. State

• Decision Date: 19 September 1945
• Docket Number: 31000.
• Citation: 35 S.E.2d 321,72 Ga.App. 811
• Parties: YOUNG v. STATE.
• Court: Georgia Court of Appeals

35 S.E.2d 321

72 Ga.App. 811

YOUNG v. STATE.

No. 31000.

Court of Appeals of Georgia, Division No. 1.

September 19, 1945

John H. Hudson, of Atlanta, for plaintiff in error.

E E. Andrews, Sol Gen., Durwood T. Pye, and J. R. Parham, all of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

GARDNER Judge.

The defendant was convicted of larceny from the house. His motion for a new trial, containing the general grounds and one special ground, was overruled, and he excepted. The special ground is to the effect that the only witness for the State was a child six years of age, and that she was incompetent to testify and therefore there was no evidence to sustain the verdict. Hence we will treat the general and the special ground together.

It is contended that there was no sufficient legal evidence to authorize the conviction. The prosecutrix testified that she had $350 in money in a pocketbook in the chifforobe in her home. She testified that the defendant knew where she kept the money because he had previously borrowed some from her and had seen her get the money from the pocketbook kept in the chifforobe. Upon returning home from a short absence on the day in question, she found that her sister's child had come to her home with the defendant, and that the approximately $350 had disappeared from the pocketbook in the chifforobe drawer. The child testified that the defendant 'went in that chifforobe and got that brown pocketbook and got a handkerchief out of it. I don't know whether or not he got any money out of the pocketbook.' The child witness was six years of age. She was present in court, where both the judge and the jury had an opportunity to observe her age, her training, and her general intelligence. In Warthen v. State, 11 Ga.App. 151, 74 S.E. 894 relied upon by the defendant, the judge, after an examination of an eight-year old child, decided that the child was not competent to understand the nature of an oath. In that case the court said: 'It is true that this question is largely in the discretion of the trial judge. He sees and hears the child whose competency is tested, and is therefore in a much better position to form an opinion on the subject than the reviewing court, which only has before it the written answers of the child, and this court would not be authorized to reverse the judgment of the trial court on this question, unless there was manifest error or abuse of discretion. Webb v. State, 7 Ga.App. 35, 66 S.E. 27. According to normal philosophy, truth is a natural instinct and children are more apt to tell the truth than a falsehood; and it has been held that the jury, who see the child, are the best judges as to whether her testimony is entitled to credit. Young v. State, 122 Ga. [725], 726, 50 S.E. 996.' In that case it appeared that the child was certainly incompetent to understand the nature of an oath.

In Horton v. State, 35 Ga.App. 493, 133 S.E. 647, cited by the defendant, the child showed no knowledge of any questions propounded to her by the court. There the entire evidence was the testimony of the child witness. It was clear that she was incompetent to testify in a case of that nature.

In Johnson v. State, 76 Ga. 76, the questions propounded and the answers elicited clearly showed that the child had no moral training, and it could be inferred that she had been coached in her answers.

The case of Gaines v. State, 99 Ga. 703, 26 S.E. 760, relied upon by the defendant, is not applicable to the facts of this case. The questions there propounded failed to develop answers sufficient to show that the child understood the nature of an oath, and clearly failed to show that the child, either from a moral or a legal standpoint, had the slightest degree of knowledge with reference to the legal consequences of committing perjury. Such is not the situation in the case at bar. Here the child testified that she went to school, she knew the name of her teacher, she went to Sunday School, and it follows that she had moral training sufficient, in the judgment of the court and the jury, to understand the nature of an oath.

In Peterson v. State, 47 Ga. 524, a child 'seven or eight' years of age was found by the court to be incompetent to testify. The Supreme Court said: 'The Court * * * has the child before him. We can only judge of its capacity from written evidence.' The judgment of the lower court was affirmed.

In Johnson v. State, 61 Ga. 35, 36, the Supreme Court said that the appellate court would 'not interfere to grant a new...