State v. Harp

173 P. 1148, 31 Idaho 597, 1918 Ida. LEXIS 66

• Court: Idaho Supreme Court
• Decided: July 19, 1918
• Status: Published

Opinion

MORGAN, J.

Appellant was convicted of rape alleged to have been committed upon a girl ten years old. He has appealed from the judgment of conviction and from an order denying his motion for a new trial.

The action of the trial court in refusing to strike the testimony of the prosecutrix and of her sister is urged as error. The prosecutrix was eleven and her sister nine years of age at the time of the trial, and it is contended their examination shows they did not understand the nature and obligation of an oath. It is true these witnesses, when questioned as to whether they understood the nature of an oath, and as to whether they knew what would be done to them if they testified falsely, answered in the negative. These questions, while competent, did not constitute the exclusive test of the qualifications of the witnesses in this particular. The requirements applicable to this case are to be found in Rev. Codes, secs. 5956 and 5957, as follows:

Sec. 5956. “All persons, without exception, otherwise than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses.....”

Sec. 5957. “The following persons cannot be witnesses:

“1. Those who are of unsound mind at the time of their production for examination;

“2. Children under ten years of age, who appear incapable, of receiving just impressions of the facts respecting which they are examined, or of relating them truly;.....”

The examination of each of these witnesses, as to her qualifications, taken as a whole, shows that her intelligence measured up to the statutory requirements and that the denial of the motions was not error.

The sufficiency of the evidence to sustain the conviction is questioned; the incredibility of the testimony of the prosecutrix is urged, and certain discrepancies therein are pointed out. While the testimony is revolting it is not incredible, and the discrepancies were circumstances to be taken into consideration by the jury in determining the credibility of the witness. In State v. Driskill, 26 Ida. 738, 145 Pac. 1095, this court held, in effect, that although the jury believed the prosecutrix made contradictory statements with respect to the acts complained of, it did not necessarily follow it must reject all of her testimony as untrue. (See, also, State v. Hopkins, 26 Ida. 741, 145 Pac. 1095.) This is particularly true where the prosecutrix is a child. The evidence is sufficient to sustain the verdict.

Other rulings of the court not herein discussed are specified as error, but we find no merit in these assignments. The judgment is affirmed.

Budge, C. J., and Rice, J., concur.