People v. Delaney , 52 Cal. App. 765 ( 1921 )

Defendant was convicted under an information charging him with lewd and lascivious conduct upon the body of a boy. At the time of the offense, the child victim was not quite four years old; at the date of the trial he had reached the age of about four years and two months. Defendant appeals from the judgment and an order denying his motion for a new trial.

It is objected that the court erred in permitting the boy to testify as a witness in the case, the claim being that, by reason of his immature years, he was incompetent under section 1880 of the Code of Civil Procedure, subsection 2 whereof provides that "children under the age of ten years, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly" cannot be witnesses.

The examination of the boy upon his voir dire, conducted by the court without the assistance of counsel, was meager to a degree. The record shows that the boy was called to the witness-stand by the prosecution, and that the following then ensued: "Q. By the Court: Do you know me? You do not know me, do you? What is your name? A. My name is Junior Seiler. Q. How old are you? A. I am four years old. Q. Have you ever been in court before? A. Yes. [Referring, evidently, to the preliminary examination of defendant before the committing magistrate.] Q. Do you go to Sunday-school? A. Yes. Q. Whom do you live with? A. With my mother. Q. Does your mother teach you to tell the truth? A. Yes, sir. Q. What happens to boys who do not tell the truth? What do they do to boys who do not tell the truth? A. Put them in jail. Q. Have you ever been in jail yet? A. No. Q. Do you know what it is to tell the truth? A. M'h'm. Mr. Shreve: If your Honor please, before your Honor finishes, I would like to have an opportunity of asking the child some questions also. The Court: No, I think this is a matter for the court. Mr. Shreve: It is a rather serious matter to undertake to try to let a child like that prove the corpus delicti. The Court: It is a very serious matter to have a charge of this kind investigated at all. The Witness: Where is mother, Daddy? The Court: If we will let you tell your story — look here, little boy. What is your name? A. Junior Seiler. Q. If we let you tell your story here, will you tell us what is true? A. M'h'm. The Court: I think I will let the witness be sworn. Mr. Shreve: We object to the witness being sworn and testifying in the case on the ground he has shown himself disqualified, and at this time we will request the court to give us permission to further examine the child with reference to his qualifications. The Court: No, that is a matter for the court. Mr. Shreve: And we submit to the court that the child is incompetent to testify under the section of the Code of Civil Procedure. The Court: Swear him. Can you stand up? (The usual oath was then repeated to the witness by the clerk.) Mr. Shreve: Let the record show that the child stands mute, please. Q. By the Court: Do you promise that what you will tell here in answer to questions that are asked you shall be the truth. A. The Witness: M'h'm."

If the learned trial judge erred in holding that the child was competent to testify as a witness in the case, it was because he not only refused defendant's counsel the privilege of examining the boy on his voir dire, but so circumscribed his own examination that he failed to bring out any fact tending to show the strength of the child's memory or ability accurately to recall past occurrences. [1] The child's extreme youthfulness was not, per se, sufficient to exclude him from the witness-stand. There is no arbitrary age limit under which the testimony of a child is automatically rejected. It was held in Brazier's Case, 1 East P. C. 443, 1 Leach C. C. 199, upon consideration by twelve judges, that there is no determinate age at which the testimony of a child might be admitted or rejected. Under that decision a child only five years of age was held a competent witness. The requirement of our statute is not one of age but of understanding. A witness who has reached the age of ten years is presumed, prima facie, to be competent. If below that age, he still is competent to testify unless it is made to "appear" to the trial judge that the child is "incapable of receiving just impressions of the facts" respecting which he is to be examined, or that he is incapable of relating the facts truly. (People v. Dunlop, 27 Cal.App. 464, 465, [150 P. 389]; People v. Swist, 136 Cal. 522, 523, [69 P. 223].)

[2] If the child is under ten years of age and his competency to testify is, for that reason, challenged, the strength of his mental faculties and his power to understand and appreciate his moral duty to speak the truth is to be determined by an inquiry the purpose of which is to advise the trial judge. The intelligence of the child is to be determined not alone from his answers to the questions propounded to him, but, to a large extent, from his appearance and conduct while in the presence of the court.

[3] Because the trial judge has an opportunity to observe the child and listen to his manner of answering questions, the question as to competency rests peculiarly in his discretion. To so great a degree does it rest in the trial judge's discretion that it has been said that "in most cases it would hardly be one which could be reviewed." (People v. Dunlop,supra.) It is only when there has been a clear abuse of discretion or a manifest misapprehension of some legal principle that the trial judge's decision will be reversed.

[4] Appellant's argument against the admissibility of the testimony of any child as young as was this boy is based upon the assumption that it is essential that it should be made to appear, not only that the child understands the nature and force of an oath, but that his sense of the obligatory force of an oath is rooted in sanctions of a religious character. This may have been the rule at common law and under the statutes of some states. Such, however, is not now the rule under the constitution and statutes of this state. All that our code requires is that it shall appear to the trial judge that the child's mentality is such that he is capable of receiving just impressions of the facts concerning which he is to testify and of relating them truly. It was said by Mr. Justice Harrison in the Matter of Johnson, 98 Cal. 549, [21 L. R. A. 380, 33 P. 460], by way of obiter, it is true, that the rule which formerly obtained in England that, as the child could not be examined except under oath, its evidence was excluded unless it understood the nature of an oath, does not obtain in this state. But even if it be necessary to show that the child understands the nature of the oath that may be administered to him if he shall become a witness, nevertheless it is not necessary to show that he entertains any particular theological belief, such, for example, as a belief in a Supreme Being who punishes the wrongdoer here or hereafter. No person, child or adult, may be excluded from the witness-stand on account of his opinions on matters of religious belief. (Const., art. I, sec. 4; Code Civ. Proc., sec. 1879.) It is enough that the child possesses a sense of moral responsibility. In the instant case, so far as the child's sense of moral responsibility is concerned, it was enough that his mother, as the boy told the trial judge, had taught him to tell the truth, and that he thought that little boys who do not tell the truth would be punished by being put in jail. Without doubt, he had no comprehensive conception of the nature of that kind of punishment; but it is sufficient that he understood that some, even if unknown, evil would befall him should he depart from the truth. A child who understands that he will be punished on earth is competent, although he know nothing of punishment after death. (Sancedo v. State (Tex. App.), 69 S.W. 142; Bright v. Commonwealth, 120 Ky. 298, [117 Am. St. Rep. 590, 86 S.W. 527].) As said by Mr. Wigmore, "a child's inclination to tell the truth or the opposite is apt to be more a matter of instinct and of previous training and surroundings than of a conscious reflection upon the prospects of a future state." (3 Wigmore on Evidence, pp. 2358, 2359.) For these reasons we think that, to qualify a child under ten years of age, upon the score of his moral responsibility, it is sufficient that he understands that it is his duty to tell the truth and that he will somehow be punished if he does not. The rule is thus stated in Cyc.: "It is held sufficient to qualify the child that he understands the difference between truth and falsehood, and his duty to tell the truth, and that he will be punished if he testifies falsely, although he does not understand the legal nature of an oath or appreciate the formality of taking it, as, from a legal standpoint, one who has an adequate sense of the impropriety of falsehood understands the nature of an oath, although not able to define it." (40 Cyc. 2204.) Appellant cites the case of State v. Michael, 37 W. Va. 565, [19 L. R. A. 605, 16 S.E. 803]. There the court proceeded upon the theory that the effect of an oath on the conscience of the child should arise from religious sentiments of a permanent nature. This, as we have seen, is contrary to the constitution and statutes of this state. With us, as we have said, intelligence and not belief is the true test. The constitutional guaranty that no person shall be rendered incompetent to be a witness "on account of his opinions on matters of religious belief" would be violated if adults were held to have civil capacity to testify in a court of justice, though entertaining no belief in a Supreme Being or a future state of rewards and punishments, and the priviledge denied to a child possessing no opinion conforming to some prescribed theological belief. "Free governments deal with the acts of the citizen, and not with his thoughts."

[5] Where, as here, the child is examined on his voir dire before being sworn as a witness and after his capacity to testify has been directly challenged by one of the parties, hiscapacity is not to be questioned by the jury after the trial judge has ruled against the objection thereto. The jurors, as triers of the credibility and persuasive sufficiency of all evidence which is admitted for their consideration, may pass upon the weight to be given to the child's evidence, and, if they conclude that it is inherently improbable, may disbelieve it; but the judge having determined the capacity of the witness, by applying the rules of law to the facts found by himself, the witness stands before the jury untrammeled by any question as to his qualification. If, therefore, they reject his testimony, it should be merely because, all things considered, they do not believe him, and not because they find him lacking by force of the law's definition of his competency. With his competency the jury has nothing to do. (1 Wigmore on Evidence, secs. 486, 487; vol. 4, sec. 2550.)

We come now to the most difficult aspect of the question here presented — the exceedingly limited nature of the trial judge's examination of the boy and his peremptory refusal to permit appellant's counsel to ask any question while the boy was being examined on his voir dire for the purpose of adducing answers that might shed light upon his competency, i. e., his ability to receive just impressions of the facts respecting which he was expected to testify and to relate them truly. We purposely have given a somewhat extended consideration of the general principles applicable to the determination of a child's capacity to testify, in order to show, not only the wide latitude of discretion with which the trial judge is vested when passing upon the competency of a child witness, but the effect that an abuse of that discretion may have on the rights of the party objecting to the child's competency.

The author of this opinion is not prepared to say that, in all cases, counsel for the objecting party may examine the child on its voir dire as a matter of strict legal right. "The mode of eliciting and determining by examination the fact of competency is left to the sound discretion of the judge." (Williams v. State, 12 Tex. App. 137.) Mr. Wharton says: "The preliminary examination thus requisite is usually undertaken exclusively by the court, and it is said that it will require a strong case to sustain a reversal of the ruling of the court examining such a witness." (Wharton on Evidence, sec. 368.) See the reference to Brazier's Case in People v. Bernal,10 Cal. 67. In Carter v. State, 63 Ala. 52, [35 Am. Rep. 4], it was said that "when a child of tender years is produced as a witness, it is the duty of the presiding judge to examine him or her, without the interference of counsel further than the judge may choose to allow, in regard to the obligations of the witness' oath." Mr. Wigmore says: "In this inquiry, on the one hand, the judge is not bound by the ordinary rules of evidence applicable to evidence offered to the jury; and, in particular, he need not permit cross-examination of witnesses called to prove or disprove another's qualifications." (1 Wigmore on Evidence, sec. 487.) But this same eminent law-writer, in a later section (vol. 3, sec. 1820), says: "The examination of a child, however, is made usually by the judge; though either counsel has of course the right to supplement it by questions tending to bring out whatever may be in favor of his contention." (Italics ours.) And in a footnote on page 2355 appears the following: "In Hughes v. Detroit etc. R. Co.,65 Mich. 10, [31 N.W. 603], it was said that the trial court must himself make the examination, and not leave it to counsel; but this seems unsound." (Italics ours.)

[6] Without undertaking to decide whether the objecting party may in all cases, and as a matter of strict legal right, supplement the trial judge's examination with questions of his own, we are satisfied that in the instant case the refusal to permit defendant's counsel to question the boy on his voir dire was clearly an abuse of discretion, so prejudicial to appellant that a reversal must ensue. It may well be that if the examination as conducted by the trial court had taken a wider range, as it should, its decision of the matter would have been final, even though defendant's counsel were denied the right to propound questions to the boy on the voir dire.

The restricted examination conducted by the court was limited to such narrow confines that it barely sufficed to develop the following: In reply to the court's questions, the boy gave his name and age, stated that he had been in court before (referring, we assume, to the preliminary examination before the justice of the peace); that he attended Sunday-school; that he lived with his mother, who, he said, had taught him to tell the truth, and that he thought that boys who do not tell the truth would be put in jail. This is practically all that was developed by the court's examination, except the further fact that the child seemingly failed to grasp the purport of some of the judge's questions. While it doubtless was not necessary to interrogate the child respecting the specific facts as to which he was later to be called to testify, we think that a due regard for the rights of the accused demanded either that the court's examination should have covered a wider range or that counsel should have been permitted to put to the boy such questions as might further develop his ability to relate truly the facts respecting which he was called to give evidence. The acts as to which he was expected to testify were of such a character that the author of this opinion inclines to the view that the trial judge, from the boy's apparent age and his general appearance while being examined on his voir dire, was justified in assuming that, if the acts were committed as charged against defendant, the boy was capable, at the time of their commission, of receiving just and accurate mental impressions of the facts. And the author of this opinion is inclined to the view that the facts developed by the trial judge's examination justified the conclusion that, in so far as the boy still retained true mental pictures of what had occurred, unaffected by the suggestions of others, he would endeavor honestly to relate all that he remembered. But the code's test of qualification requires something more than a truthful disposition and the ability to receive just mental impressions of objective facts. The requirement that the child shall be able to truly relate the impressions that he may have received implies, not alone a truth-telling disposition, but a memory sufficiently strong and retentive to be able to recollect faithfully the objective facts or the mental impressions originally created thereby. There is nothing in the trial court's examination that tends to disclose the strength or weakness of the child's power of recollection. The trial was had three and a half months after the occurrences that led to the filing of the information against appellant. Meanwhile the boy undoubtedly had heard his parents talk about the case and its distressing facts. The force of suggestion, always strong, is particularly potent with the impressionable and plastic mind of childhood. We have no reason to believe that either parent consciously and willfully intended to influence the child's testimony. But without intending any such result, the repetition of supposed facts in the presence of a child often creates a mental impression or concept that has no objective reality in any actually existing fact. Before being permitted to testify as a witness in the case, the child should have been asked some question or questions having a tendency to disclose the strength or weakness of his recollection — his ability to retain, for three months or more, and uninfluenced by the unconscious effect of suggestion, a clear and distinct mental picture of what happened at the time when, it is claimed, he and the defendant were together. Such line of questioning was neither pursued by the court nor permitted to counsel. That such questioning would probably have made manifest the boy's inability accurately to recall and thus relate, at the date of the trial, exactly what did happen three and a half months previously, is, we think, sufficiently disclosed by what occurred after the child was sworn as a witness in the case. Not only did the boy, on cross-examination, testify that he had been told by his mother to say that defendant had done certain things, but his testimony before the committing magistrate, given only ten days after the alleged crime and offered in evidence to impeach his testimony in the superior court, leads to the conclusion either that his testimony before the committing magistrate was false or that his power of recollection was so weak that, when examined as a witness in the superior court, he no longer retained any independent recollection of what had happened. The record here shows that the following occurred on the examination of the child before the committing magistrate: "The Court: . . . Q. Do you know this man sitting over there? [Indicating the defendant.] A. Yes, sir. Q. Did that man ever do anything to you? A. What is your name? Q. Did this man ever do anything to you? A. That man, no. Q. He didn't ever do anything to you? A. No. The Court: Now, look at that man over there; do you know him now? A. Yes, sir. Q. What did he do to you? By the Mother: Tell him the truth. The Court: Q. What did this man do to you — anything? A. No. Q. Didn't he do anything to you? A. No. Q. Do you know that man over there? A. Yes, sir. Q. What is his name? A. I don't know what his name is. Q. You don't know what his name is? A. No. Q. And you say he never did anything to you? A. No. Q. Do you want to walk over there and take a look at him? Come on, you and I, and we will walk over there, that is a good boy. [The court and witness approach the defendant.] Now, then, is this the man, do you know him? A. No. Q. Did this man ever do anything to you? A. No, sir. Q. . . . Do you know this man? A. No. Q. By Mr. Fitts: Did you ever see him before? A. No. The Court: Did he ever do anything to you? A. No." Then, after an interval during which several questions were asked which have no bearing on the case: "Q. . . . I want you to look at this man again and tell me if he ever did anything to you? A. Yes. Q. When did you see him? Do you know when you saw this man before? A. In the garage. Q. By Mr. Fitts: What happened in the garage? What took place there? A. He didn't do anything in there. Q. Did he do anything at any place? A. No."

The conclusion arrived at by the author of this opinion is that the trial court's examination of the boy on his voir dire was restricted to such a narrow and limited compass that to deny appellant's counsel the privilege of supplementing the court's examination with questions of his own was, under all the circumstances of this case, an abuse of discretion and therefore error. And since without the boy's testimony the evidence does not warrant a conviction, the error was prejudicial and a reversal is necessary.

In holding that, under the circumstances of this case, it was error to deny defendant the privilege of examining the boy on his voir dire I do not wish to be understood as holding that either party to an action, always, in every case, and as a matter of strict legal right, may supplement the court's examination of the child. What I do hold is that the court, by its own examination of a child on his voir dire, should adduce some fact or facts tending to show that the child's memory is strong enough to enable him to recall such facts as those respecting which he is to testify solely by reason of his own independent power of recollection, or else the privilege of showing the possession or lack of such power of recollection should be accorded counsel. Lacking the ability accurately to recollect past occurrences, the child, though he may have received, at the time of their occurrence, just impressions of the facts respecting which he is called to testify, is not capable of "relating them truly."

Judgment and order reversed.