Young v. State

• Decision Date: 10 May 1905
• Citation: 50 S.E. 996,122 Ga. 725
• Parties: YOUNG v. STATE.
• Court: Georgia Supreme Court

50 S.E. 996

122 Ga. 725

YOUNG v. STATE.

Supreme Court of Georgia

May 10, 1905

Syllabus by the Court.

1. When, on the trial of a criminal case, a child under the age of 14 years is offered as a witness, and is objected to by counsel for the accused on the ground that she does not understand the nature and sanctity of an oath, it is error for the judge to refuse to examine her as to her knowledge and belief upon this subject, or to refuse to allow counsel to examine her, and to allow her to testify simply because she had testified in a previous trial of the same case.

2. There is no material error in any of the other charges or rulings complained of in the motion for new trial.

Error from Superior Court, Baldwin County; H. G. Lewis, Judge.

Albert Young was convicted of murder, and brings error. Reversed.

John R Cooper and Hines & Vinson, for plaintiff in error.

Jno. C Hart, Atty. Gen., and Jos. E. Pottle, Sol. Gen., for the State.

SIMMONS C.J.

Young was convicted of the offense of murder. He made a motion for a new trial, which was overruled, and he excepted. One of the grounds of his motion was, in substance, that when the state offered Lugenia Butts, a child under 14 years of age, as a witness, she was objected to on the ground that she was incompetent because of her want of knowledge as to the nature and sanctity of an oath. The judge asked the witness her age and she replied that she was then 12 years old. He further inquired if she testified in the case upon a previous trial, and she replied that she did, whereupon the court ordered the examination to proceed. He would not examine her himself as to her knowledge and belief concerning the obligation of an oath, nor would he allow counsel to do so.

1. Section 5273 of the Civil Code 1895 declares that a child who does not understand the nature of an oath is an incompetent witness. Section 5276 declares that the court must by examination decide upon the competency of one alleged to be incompetent by reason of childhood. The record discloses that this child was alleged to be incompetent and that the judge refused to examine her as required by the statute. As a general rule. this court is loath to interfere with the discretion of a trial judge on this question. It is a matter largely in his discretion, after examining the child, to determine whether it understands the nature of an oath, and whether its testimony is competent. This rule has been applied in many of our decisions, but upon reading them it will appear that the judge in each case did examine the child, and determined that it was either competent or incompetent; and this court has generally sustained the trial judge, announcing that it would not interfere unless it was manifest that he had abused his discretion. But this is a different kind of case. Here the judge did not examine the child at all as to her understanding the nature of an oath, but merely asked her age, and whether she testified upon the former trial of the case. How that could enlighten him as to whether she could understand the nature of an oath, we are at a loss to perceive. We examined the record when the...