Schamroth v. State

66 S.E.2d 413, 84 Ga. App. 580, 1951 Ga. App. LEXIS 728
CourtCourt of Appeals of Georgia
DecidedJuly 16, 1951
Docket33650
StatusPublished
Cited by17 cases

This text of 66 S.E.2d 413 (Schamroth v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schamroth v. State, 66 S.E.2d 413, 84 Ga. App. 580, 1951 Ga. App. LEXIS 728 (Ga. Ct. App. 1951).

Opinion

Townsend, J.

(After stating the foregoing facts.) The first, second and fourth grounds of the amended motion for a new trial will be considered together, as they deal with the right of the court to examine the witnesses for competency in the presence of the jury, and of his charge on this question. Barbara Ann, the State’s chief witness, was ten years old and in the fifth grade of school. At the request of the solicitor-general that the court examine her upon her qualifications as a witness the court elicited this information, together with a statement as to her Sunday School and church attendance and the distinction in her mind between right and wrong. Counsel for the defendant at this point objected to the examination being conducted in the presence of the jury on the ground that no attack had been made on the character of the witness, and that questions calling for an answer which would tend to add credibility or to bolster the witness without an attack would be improper. The objection was overruled, and the court thereafter questioned the witness *582 as to her knowledge1 of right and wrong, the evils of telling lies, the identity of God, and her belief in the life after death. The witness making satisfactory responses to these questions, the court ruled that she was competent.

The same question arose upon the examination of Joan Anchors, aged fourteen, who testified as to her school and church membership and answered certain questions in elementary theology propounded by the court. Objections were urged on the ground that the questions, under the guise of determining the witness’s intelligence and understanding, actually dealt with her, specific habits, thus tending to surround her with the odor of sanctity and bolster her character for credibility.

Objection is also made to the following charge of the court: “The competency of a witness to testify must be decided by the court. Children who do not understand the nature of an oath are incompetent witnesses. The court must by examination decide upon the capacity of one offered as a witness and objected to as incompetent on account of childhood so far as to determine whether the witness shall be allowed to testify. Although after a preliminary examination the court may hold a child competent to testify, the credibility of witnesses is for the jury, and in determining whether or not they will credit the testimony of such witnesses, the age of the witness and his or her understanding or lack of understanding as to the nature of an oath as developed on the examination by the court before them are matters for the jury.” The third and last sentences of this charge are quoted from Frasier v. State, 143 Ga. 322 (5) (85 S. E. 124). The first sentence is a restatement of Code § 38-1601. The second sentence is found in Code § 38-1607. The substance of the third sentence is also to be found in Young v. State, 122 Ga. 725 (50 S. E. 996), in which case it is further held as follows: “The jury also had the right to hear'the test as to her competency; and while the judge may have been satisfied prima facie that she was competent, the jury at last were the judges of whether they would credit her testimony or not, after hearing her examined concerning her knowledge of the nature of an oath.” “It has been held that the jury who see the child are the best judges as to whether her testimony is entitled to credit.” Warthen v. State, 11 Ga. App. 151 (74 S. E. 894); Young v. *583 State, 72 Ga. App. 811 (35 S. E. 2d, 321). That the court may, of his own volition, propound questions to the witness for the purpose of eliciting the truth is well established. Johnson v. Leffler Co., 122 Ga. 670 (7) (50 S. E. 488); Bank of Commerce v. First National Bank of Ocilla, 32 Ga. App. 410 (2) (123 S. E. 736); Nelms v. State, 18 Ga. App. 92 (3) (88 S. E. 917). The question of competency is largely within the discretion of the trial court, and his decision on this matter will not be reversed unless it appears to be a manifest abuse thereof. Gordon v. State, 186 Ga. 615 (198 S. E. 678); Bell v. State, 164 Ga. 292 (2) (138 S. E. 238.) A child over fourteen is presumed competent to testify, but to hold that this presumption is so conclusive that the court is inhibited from examining the witness on this point unless objection has been specifically made on one of the grounds stated in Code § 38-1607 would be to circumscribe the authority of the court to elicit the truth, and would seriously impede the administration of justice. Chronological age and mental age do not necessarily correspond. Some children well under the age of 14 are more mentally developed than others who, like the witness here, have just passed that age. The witnesses are before the trial court and under his observation. The trial court here did not abuse his discretion by refusing to take the qualifications of this witness for granted. The court had a right to examine these witnesses in the presence of the’ jury. It was proper for the jury to hear the examination and apply the evidence thus heard upon the issue of credibility.

That part of the court’s charge complained of in ground 4 of the amended motion for a new trial is as follows: “The court must by examination decide upon the capacity of one offered as a witness and objected to as incompetent on account of childhood so far as to determine whether the witness shall be allowed to testify” appears to have been taken from headnote three of Frasier v. State, supra, and while correct as an abstract principle of law not in all particulars adjustable to the facts in this case, as the witnesses were here not objected to as incompetent. The tenor of our holding is, however, that the court must make this examination as pointed out in Frasier v. State, supra, where the witness is objected to, and he may do it of his own volition where he wishes to satisfy himself as to the competency of the *584 witness, although no objection has been interposed. The charge, although not entirely adjustable to the facts here, was therefore not so incorrect as to confuse or mislead the jury.

The first, second and fourth grounds of the amended motion for a new trial are without merit.

The third ground of the amended motion for a new trial points out that upon the cross-examination of Diane Sharpie, a witness for the State nine years of age, counsel for the defendant asked, “Diane, you have heard your grandmother tell about. .

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Bluebook (online)
66 S.E.2d 413, 84 Ga. App. 580, 1951 Ga. App. LEXIS 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schamroth-v-state-gactapp-1951.