Opinion
33389.
DECIDED MAY 11, 1951.
Certiorari; from Fulton Superior Court — Judge Moore. October 16, 1950.
Frank W. Brandon, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, B. B. Zellars, William Hall, contra.
1. The assignments of error in paragraphs 6 a, b, and c (the general grounds), and in paragraph 6 e of the petition for certiorari were not argued or insisted upon in the brief for the defendant and are treated as abandoned.
2. It is left to the sound discretion of the trial court to determine whether or not a child of tender years is a competent witness; and where the court examines a child as to its understanding of the nature of an oath and decides that it is competent to testify, this court will not interfere, where it does not appear that such discretion was manifestly abused.
3. Where the charge of the trial court was not sent up in the record or bill of exceptions, this court will presume that the judge charged correctly, if the contrary be not manifest from the exception taken.
DECIDED MAY 11, 1951.
The defendant, R. F. Russell, was tried and convicted of assault and battery in the Criminal Court of Fulton County upon an indictment transferred to that court by the Superior Court of Fulton County. Being dissatisfied with the verdict the defendant applied to the Superior Court of Fulton County for a writ of certiorari. The assignments of error in the petition for certiorari are predicated upon the usual general grounds and the following special grounds: "(d) Because the State's witness, Janice Manley, a child of the tender age of eight, was allowed over objection, to qualify as a competent witness and gave her testimony to the court and the jury although during the preliminary examination made of this witness by the court evidence appeared that the child did not know the nature of an oath nor the difference between right and wrong. The court committed error in allowing this child to testify when it distinctly appeared that said child did not understand the nature of an oath. The admission of this incompetent witness' testimony by the court was extremely prejudicial and hurtful to petitioner.
"(e) Because the court erred in allowing the mother, Mrs. E. T. Manley, a witness for the State, to testify what her daughter, Janice Manley, told her after the alleged assault took place, because her daughter, Janice Manley, was in court and if competent was capable of testifying herself, and upon further ground that the court erred because said testimony was hearsay.
"(f) Because the court erred in refusing to charge the jury after being requested to do so by the defendant's attorney as follows: `No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the improbabilities that a person of such character would be guilty of the offense charged, that the other evidence in the case is false, or the witnesses mistaken.' Rice, Evidence, Criminal, § 371. Evidence of good character is not admitted as a mere makeweight, but as evidence of a positive fact, and may of itself, by the creation of a reasonable doubt, produce an acquittal. Weston v. Com., 111 Pa. 251. Such evidence should be weighed and considered by the jury in connection with all the other evidence in the case. The rule is both reasonable and just. There are cases where, owing to the peculiar circumstances in which a man is placed, evidence of good character may be all he can offer in answer to a charge of crime. `Of what avail is a good character, which a man may have been a lifetime acquiring, if it is to benefit him nothing in his hour of peril?' Because of the numerous character witnesses who testified as to the good character of the defendant it was error for the court to fail to charge the principles set out in this ground."
It appears from the brief of evidence attached to the petition for writ of certiorari that Mrs. Manley testified: "I am the mother of Janice Manley. Janice is eight years of age. On July 30, 1948, about seven o'clock p. m., my daughter, Janice Manley, went across the street to Mr. Russell's (the defendant's) store. It was full daylight and I could see the store, which is located cater-cornered from my house. Janice was gone about fifteen minutes or twenty minutes. Janice came back and said . . Janice told me that Mr. Russell had felt her private parts while she was in the store and that Mr. Russell did this while Janice and he were behind the meat counter. . . I saw people passing up and down the street while Janice was in Mr. Russell's store. . . I was sitting at the window of my house. I saw Janice come out of the store and come across the street. I heard no outcry and Janice was not crying when she came into the house. She told me then about what Mr. Russell had done to her. Later Mr. Russell was brought to the house by two detectives and Janice said he was the man. Mr. Russell did not open his mouth while he was at our door."
Counsel for the defendant made a motion that Janice Manley be subjected to a preliminary examination as to her competency as a witness on account of her tender age, and the following examination was conducted by the court: "Court: Janice, how old are you? Janice Manley: Eight years old. Court: Do you know what you are doing when you are sworn? Janice Manley: No. Court: What grade are you in? Janice Manley: Third grade. Court: Do you know what will happen to you if you tell a story? Janice Manley: No. Court: I think she is a competent witness."
Janice Manley testified: "On July 30, 1948, I went to Mr. Russell's grocery store and asked him for a drawing book. He said the drawing books were behind the counter and I sat down on a stool and looked at the drawing book. He came up to me and felt under my dress and asked me to hold his. I was in the store about ten or fifteen minutes. It was full daylight when I went to Mr. Russell's store. He put his hands on me behind the meat counter. There is a door to the side street which was open about three or four feet from where I was when Mr. Russell put his hands on me. I saw some boys playing out in the street and two of the boys came in while I was in the store. I do not know their names. They bought some candy or something and went out. I did not cry. I do not know what would happen to me if I told a story. I have never had anybody put their hands on me before. I am in the third grade."
The defendant introduced fourteen witnesses who testified that his character was good and that they knew nothing against his character, and the defendant made the following statement: "I own a grocery store at 520 Atwood Street, S.W., Atlanta, Georgia. On July 30, 1948, at about seven o'clock p. m., Janice Manley came into my grocery store. I was fixing to close up and she asked me to see some drawing books. I was working on my books and showed her where the drawing books were and she went to look for them. I kept working on my books. I never touched Janice. While she was in my store several boys came in to make purchases and also a man came in. I do not know any of their names. My store is located right on the street and it was full daylight while Janice Manley was in my store. Janice was in the store about fifteen or twenty minutes and when she left she turned around at the door and waved goodbye to me. She has not been in my store since that time but her father's brother is one of my best customers and he has continued to trade with me to this date. I am innocent of doing anything to this child. I think it is an unjustified accusation as I am totally innocent. Anybody on the street could see inside the store and the lights were on too in the store. I have always tried to lead a good Christian life and not wrong anybody.
In his answer the trial judge made the following additions to the brief of evidence: "Mrs. E. T. Manley testified as set out in said paragraph, and in addition thereto stated that the child ran across the street and came into the house excited, and that the first thing she said was that she was never more surprised in her life, and then told her what Mr. Russell had done, as set out in the testimony, and that Mr. Russell's store and the place where this happened was in Fulton County, Georgia, on the 30th day of July, 1948. Mrs. Manley also produced the report of cards of Janice Manley for the first and second grades, and stated that she was now in the third grade; that the report cards for the second grade showed that Janice Manley had made `A' in every subject, including conduct, reading and arithmetic, and made `B' in spelling. That in the testimony of Janice Manley, as to her qualifications, respondent says that from observation and general manner the child is bright and intelligent; that she did answer on direct examination that she did not know what she was doing when she was sworn, but no explanation was made to her and the question was put in such a manner that the court is of the opinion that a great many grown people could not have answered it under the circumstances; that on cross-examination she stated that it was wrong to tell a story. That in addition to the testimony set out as the testimony of Janice Manley, she testified that she asked Russell when he took hold of her to let her go, and that he used his finger in her and asked her if it didn't feel good, and that he made her put her hands on his private parts."
The superior court overruled the certiorari and the defendant excepted.
1. Headnote 1 requires no elaboration.
2. "It is left to the sound discretion of the trial court to determine whether or not a child of tender years is a competent witness; and where the court examines a child as to its understanding of the nature of an oath and decides that it is competent to testify, this court will not interfere, where it does not appear that such discretion has been manifestly abused. Code, §§ 38-1607, 38-1610; Moore v. State, 79 Ga. 498 (3), 502 ( 5 S.E. 51); Beebee v. State, 124 Ga. 775 ( 53 S.E. 99); Young v. State, 125 Ga. 584 (4), 586 ( 54 S.E. 82); Frasier v. State, 143 Ga. 322 ( 85 S.E. 124); Bell v. State, 164 Ga. 292 (2) ( 138 S.E. 238); Style v. State, 175 Ga. 95 ( 165 S.E. 7)." Gordon v. State, 186 Ga. 615 ( 198 S.E. 678), and see also Young v. State, 72 Ga. App. 811 ( 35 S.E.2d 321).
Although, in the instant case, Janice Manley, a child of eight years, testified on preliminary examination of her competency as a witness that she did not know what she was doing when she was sworn as a witness and that she did not know what would happen to her if she told a story, the trial court observed that she was a bright and intelligent child; that she was above average in her school work as shown by her report cards, and that though she did answer on direct examination that she did not know what she was doing when she was sworn, no explanation was made to her and the question was put in such a manner that the court was of the opinion that a great many grown persons would have not answered the question. The court observed further that on cross-examination she stated that it was wrong to tell a story. Considered not only on the evidence alleged in the petition for certiorari but also on the answer of the trial judge, we think the trial court did not err in adjudging the child a competent witness and in the absence of a showing of manifest abuse of the trial court's discretion paragraph 6 d of the petition for certiorari is without merit.
3. In paragraph 6 f of the petition for certiorari, error is assigned upon the refusal of the trial court to give a requested charge upon the effect of the defendant's having put his character in issue by the testimony of numerous witnesses who swore that he was a man of good reputation. "[Where] the charge of the court was not sent up in the record . . this court will presume that the judge charged correctly, if the contrary be not manifest from the exception taken. Woolfolk v. Macon Augusta R. Co., 56 Ga. 458; Trice v. Rose, 80 Ga. 408 (2) ( 7 S.E. 109)." Toney v. State, 69 Ga. App. 331 (6), 334 (25 S.E.2d,
85); Reeves v. State, 78 Ga. App. 402, 403 ( 50 S.E.2d 708); Shives v. Young, 81 Ga. App. 30, 33 ( 57 S.E.2d 874). The assignment of error in this ground is without merit.
The superior court did not err in overruling the certiorari for any reason assigned.
Judgment affirmed. Gardner and Townsend, JJ., concur.