ARK.] PAYNE V. STATE. -: • PAYNE V. STATE. ' • OpiniOn delivered=May 28, 1928.. I.: • WITNESSES ' . COMPETENCY . OF SEVEN-YEAR-OLD BOY.—Ability . of a.
seven-year-old boy to answer correctly questions.relative to punishment for perjury held not the- true tests of competency; since • many persons- of sufficient intelligence to comprehend the Obligation of an oath might be unable to answer, such questions. 2. WITNESSES—COMPETENCY OF CHILDREN.—If 'a, child under 14 ap— pears to have sufficient natural intelligence, and to have been .so. instrueted a7s to comprehend the nature and effect of an oath, he should be admitted to testify, regardless'of his age. - 3. WITNESSES—INFANT WITNESS-L DUTY- OF JUDGE.—Where there is • a-serious question as to the competency of an • infarit-witness, it is 'the-duty of the.trial judge to follow the ekarnination'dlosely, and' •if it appears that the witness, by reason of .bis, youth, does not: appreciate questions asked him and , the relevaucy_ of the answers; given, 'his ,entiie teatimony should 'be excluded, though his .pre7 - lirninary examination iridicated , tfiat he Understood the obligations • ''of n 'oath. 4: WITNESSES -COMPETENCY OF CHILD—DISCRETION' OF COURT.—The decision as to the compOtency. of a witness of tender' years lies - primarily with the trial judge. • ' 5. WITNESSES COMPETENCY OF .CHILD.—Evid6nce held not . to establish an abuse of discretion-in adinitting the testimony of a- child- . seven years old in a murder case. • 6. HOMICIDE— INSTRUCTION . AS TO . CIRCUMSTANTIAL' EVIDENCE.--.7 In a 'proseutiOn for murder, an ' iUstrlictiO ' n reqUiriUg proof of circumstances suffibient to authorize conviction tO be sO connected and linked together as to' make ' an unbroken chain and exclude every other reasonable hypothesis was properly refused because argu-
414 PAYNE V. STATE. [177 mentatilie and because the court properly, charged on the pre-• sumption of innocence and reasonable doubt. Appeal from Lawrence Circuit Court, Eastern District ; S. M. Bone, Judge ; affirmed. Smith & Blackford, for appellant. H.W. Applegate, Attorney General, John L. Carter, Assistant, and Penix & Barrett, special counsel, for appellee. SMITH, J. This appeal is from a judgment sentencing appellant to the penitentiary for the term of hi; natural life for the al]eged killing of Fred Brandon. Only two assignments of error are argued for the reversal of the judgment, the first being that a child was erroneously permitted to testify on behalf of the State, and the second, that the court, erred in refusing to give instruction number 2, requested by appellant. No witness testified that he saw the killing, and the State relied entirely upon circumstantial evidence to secure the conviction. Two small boys, one Levi Phillips. who was seven years old, and another, Roy Pearson, whose age was eleven, gave testimony which supplied an essential link in the chain of circumstances. The defendant denied the killing, and undertook to prove an alibi, and offered testimony to the effect that he was far removed from the scene of the killing at the time it was shown to have occurred. According to the testimony of the boys above named, appellant was in deceased's field, with a gun and dogs, hunting, a few minutes before the shots, three in number, were fired by an automatic shotgun, which killed the deceased. No preliminary questions touching the competency of Roy Pearson were asked that witness, but, When Levi Phillips was called, he was first interrogated by the prosecuting attorney as follows : "Q. Tell these men your name? A. Levi Phillips. Q. How old are you? A. Seven years old. Q. When was your birthday? A. On Thursday, I think. I can't tell you just when it was, but it was on Thursday. Q. Is it
.PAYNE V. STATE. 415 r ong to tell a story? A. Yes sir. Q. What becomes of boys that tell stories? A. They lock them up. Q. If you are good and die, where do you . go? A. Go to heaven. Q. Do you know Sam Payne here? Objection by the defendant." Counsel for appellant then asked the witness the following questions : "Q. Do you know what the punishment is, son, for • telling a lie in court—you don't know that, do you? A. (No answer). Q. Then you don't know what the penalty for perjury is, do you? A. (No answer)." Counsel for appellant, after propounding these questions, to which no answer was given, objected to the witness testifying, and saved an exception when his objection was overruled. After the court had ruled that the witness was competent to testify, the witness told about seeing appellant in the deceased's field with dogs and gun, and was then subjected to a lengthy cross-examination by counsel for appellant. The answers of the witness indicated that the boy possessed at least average intelligence for a youth of his age. His answers were responsive to the questions asked him, and showed tha , t he understood all these clues-tions. It is earnestly insisted that, under the rule announced in the case of Crosby v. State, 93 Ark. 156, 124 S. W. 781, the witness was not qualified to testify. In the Crosby case, a colored boy named Will Howard, ten years old, was permitted to testify, over the objection of the defendant. In that case, as in this, the witness stated that he _knew it would be wrong not to tell the truth, but the colored boy answered that he did not know what would be done with him if he did not do so, while the witness Levi Phillips answered that he Would be locked up if he told a story. The witness Will Howard was held to be incompetent, and the admission of his testimony was • error calling for the reversal of the judgment. In each case the witness knew it was wrong to tell a story, but the witness Will Howard did not know . that any punish-
41_6 PAYNE V. STATE. [177 ment . would attend- if -he did so; while the witness in the instant -case not only knew it was wrong to tell a story, but that person's Were punished who did so. It. is true, as counsel for appellant argue, that the witness . made no answer to either of the questions asked him on his cross-examination. But, we . think the ability to correctly answer these questions *was not the true test of comp,etency. Many persons of suffident intelligence to fully comprehend the obligation of .an oath might be Unable tO answer what the pimishment was for telling a lie in court, and ,Who Would *not know what the penalty for perjUry is. • •• In de termining the competency of a witness testifying in a criminal case, we follow the common law on •that subject,. as- announced in the case of Flanagin v. State, 25 Ark. 92, where it . was said: . ."As to children, there is no precise-age within which •they ure. absolutely eiccluded, on the presumption that -they have not. sufficient understanding. At the age of .fourteen all persons are presumed to have common dis-_cretion and understanding,. until the contrary apPears, but under that age it is not presumed; hence Inquiry should be made as to the degree of understanding which 'the child offered as a:witness possesses ; , and if he appears .to :haVe sufficient natural' intelligence, and to have been -,so instructed- as to 'comprehend . the -nature and effect of an oath, he should be admitted to testify, no matter what his -uge may be:" • The cornmon law on the subject -of the competency of -witnesses in civil cases was changed by the Civil Code, § • 663 of which *(§ 41.46, C. & M. Digest) provides that "-infants-under -the age of -ten years, and over that age if incapable of understanding the obligation of an oath," -shall be incompetent to testify in civil cases, but the corn-mon law on the subject of the competency of witnesses in -criminal -cases was not changed by this statute, and • reinains- as it was announced to be in the Flanagin case, supra.
ARic.] PAYNE V. STATE. 417 j; . In the case ,of Wheeler v, United States, 159 -U. S. 523,
Justice . Brewer, speaking for the. Supreme Court of the United States, said: .. . • .. the'boy -was _not, by reason of his youth; as a • . maiter of -law . , -Absolutely :disqualified as. a :witness, is ..clear. ,no one would . think -of calling As a. -witness infant: only -two or ,three. years. old, there is no pre-age . which :determines th , e question of competency. , .This depends .on the capacity .and intelligence: of the .child i his appreciation of. the difference: between truth • and falsehood, as well . as of his duty to -tell the former. The .decision of this _question rests primarily with the 'trial 'judge, who sees the proposed witness,.-notices his : manner, his apparent possession or 1 4 a. of intelligence, and may resort- to. any examination -which will 4end. to disclOse his capacity And intelligence as well as his under-:standing of the obligations of an oath.. As. many of these -Matters cannot . be photographed Into . . the.- record, the decision of the. trial judge -will not-be disturbed on review, -unless from that which is- preserved it is clear that it was erroneous... These rules have been settled by many d_ecisions, and there seems:to .be. no - dissent among the recent authorities.". is; of course, the -duty of •the trial.court to folloW closely the- examination of a witness about whose competency there is a 'serious „ question on -account of his youth, . and if, during the course - of the examination, it -appears -that the .witness does : not -appreciate the questions asked . him -and the -relevancy.of the answers given, because of his, youth; it . would .be the duty :of the trial court to ekOnde the entire testimony of the witness, although his _preliminary .examination apparently indicated that -the ,witness understood the obligations of an oath; but, as was said by Mr. Justice- Brewer in the case above cited, the decision of this question rests primarily with the trial _judge: . • - . . . . - Under the fest . stated we think no abuse of discretion was-shown in the admission of the testimony of :the witness . Levi . Phillips, as his- entire examination showed an
41 8 PAVA v. STAT. [1:77 - intelligent appreciation of the facts regard to ;which -the Withess was interrogated, as . well as the obligation to tell the truth in regard thereto. The . • cohit refused to give instruction number 2, 'requested by appellant, which readS as follows: "Before -the" jhry-wOuld be authorized to find the defendant guilty upon Circumstantial' evidence alone, the circumstances in proof- mhst be §o: connected and linked together ,as make: an unbroken chain, and 'sufficient to exclude every other reasonable hypothesis for the commission of the often-Se eicePt-:by . the defendant." - -We think this instruction was objectionable because 'argumentative in . form. The trial court mightvery well; in a ease 'where the guilt of the accused depends entimëly hpoh: circumstantial evidence; tell the jury that the eire shmstances -proved should • be such that, if true, 'theY excluded every 'reasonable hypothesis except that.-' "of guilt: 'But it lias been several times held that the •failure to . .do so is not error where the court haS, in Other instriictiOns, fully charged the jury On the presuinp-tiOn. of ihn'ocence-which attends one charged with the • cOmmissien 'Of-a crime and the necessity of showing the guilt of the accused beyond a reasonable dOubt:, -• This 'exact questioh. was recently-very thoroughly cOnsidere&-by ; us' ih the; Cage . of Adams v. State, 176 Ark. 916; 5 S: W. (2d.) 946, where it was : 'Even if, it' 'could be said - that . this were a case 'depending' whollY 'upon' cirCumstantial evidence; nevertheleSs 'the court did-not -err in refusing to grant appellant'S prayers for instrhetions Nos. 18 and 19, ;because the Court had already fully and correctly instructed the jhry on the credibility' Of witnesses, the weight of evi--dence, the - presumption -of ; innocence,- and -reasonable •doubt.. • In Barton v. State, 175 Ark. 120, 298 • S. W. 867, we said, referring to the refusal of the trial court to give a similar instruction : 'We haVe held, hoW-• eVer'; that it iS hot ihiproper to-refuse to 'give such an ihStructiOn, 'even in cases where conviction was asked wholly' upon circumstantial evidence, where the jury was
ARK.J 4191 properly instructed as to .the burden of proof res . ting on the State to establish the guilt of the accused ,130,ond,;a, reasonable doubt, and where reasonable doubt was, properly defined. Rogers v. State,.163 • Ark. 252, 260 S. W. 23; Bost v. State,.140 Ark. 254, 215 .S , .. W. , 615 ; Cooper v. State,145 Ark..403,,264 S. W. 726; Cummins v. State, 163 Ark. 24, 258 S. W:. 628 ; Barker N. State, 135 Ark. 404, 205 S..W. 835; Garrett v. State, 171 , Ark. 297, , 284 S. W. 734; Rogers v. State, 163 Ark. 252, 260 S. W. 23.' The above correctly declares the law; and it is not in conflict with any of our previous decisions.!' ... Ilii this case the court fully charged the jury on. the subject of the credibility of witnesses and the manner of weighing their testimony,., and the presumption of innocence attending the defendant, and the necessity on the part of the State of proving the guilt of the accused beyond a reasonable doubt before convicting him, and we-conclude therefore that there was no error in refusing defendant's instruction number .2. . As no error appears in the. record, the judgment Must i;e affirmed, and it is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.