
    GAINES v. THE STATE.
    1. An examination for tlie purpose of testing the competency of a child of tender years to testify as a witness, which develops nothing except that he does not know his age, but does know his father’s name and the number and names of the days of the week, and can count thirty-two, is not sufficiently comprehensive to authorize a conclusion that such child understands the nature of an oath.
    2. Evidence that the father of one accused of crime endeavored to effect a settlement of the prosecution may, in some instances, be ’ competent as affecting the father’s credibility as a witness; but such evidence is never admissible to bind the accused as a quasi admission of guilt, unless it appears that he authorized, or was in some way connected with, the attempt to settle.
    3. It was error to charge upon the hypothesis that the accused had “made a proposition of settlement,” when there was no evidence that he had done so.
    4. The charge of the court was, in several respects, inaccurate, and did not clearly present the law of the case.
    Argued November 2,
    Decided November 9, 1896.
    Indictment for rape. Before Judge Butt. Chattahoochee superior eouTfc. March term, 1896.
    
      J. H. Worrill, L. McLester and E. J. Wynn, for plaintiff in error. S. P. Gilbert, solicitor-general, contra.
   Bumpkin, Justice.

Tire plaintiff in error was convicted (of tlie offense of rape upon one Ada 'Williams, and excepts to tlie overruling of his motion for a new 'trial.

1. One of the questions for 'our consideration arose upon a ruling of the trial judge 'to the effect 'that Primus Stafford, a child of 'tender years, was competent to testify as a witness. I't appeared, up'on an examination conducted by the judge for the purpose of inquiring ihito the competency of this child, thalt he was ignorant as te' his own age, but did know his father's name arid the number and names of 'the days of 'the week, and could count as high as thirty-two. This examination, however, developed nothing more concerning ‘the child's competency as a witness. We do not think ¡the examination was sufficiently comprehensive. It certainly did n'ot show that the child, either from a moral or a legal Standpoint, understood the nature or obligation of an oath, or had 'the slightest degree of knowledge with reference to 'the legal consequences of committing perjury. "While this court is not inclined to any great Strictness 'on this subject, we feel constrained to hold that 'tlie test 'to which the witness now under consideration was subjected was hardly sufficient.

2. There appears in the record evidence 'tending to show that 'the father of 'the girl alleged to have been assaulted, and the father of the accused had made efforts to effect a settlement of the prosecution. In this connection, the-court charged: “The fact 'that 'there have -been propositions made, pro and com, by 'the panties — it is insisted by the defendant 'that 'the propositions of settlement were made by 'the prosecutor, and it is insisted upon by the State that 'the defendant made the proposition. The court takes occasion to charge you here that it is one of those classes of cases that could no't b'e settled; and testimony was only submitted for the purpose or circumstance that you may look to 'as to the guilt or innocence of 'the defendant.” As the father of the girl 'testified as a witness for the State, evidence that he undertook 'to compromise with the father of the accused was unquestionably relevant 'as affecting the credibility of 'the witness; bu't such evidence surely could not bind the accused ¡as a quasi admission of guilt, there being no evidence to show 'that he expressly authorized, or was in any way either directly or indirectly connected ■with, the attempt which his father made to settle the case. It is evident, 'therefore, that 'the charge above quoted was not appropriate. It. was certainly erroneous to instruct the jury, in general 'terms, .that they might look to the evidence above mentioned in reaching a conclusion as to the .guilt or innocence of the accused. Yery naturally, the jury would understand this instruction to mean that the conduct of his father in endeavoring to suppress the prosecution was, to some extent a't least, t’o be regarded as the ■conduct of the accused himself. We 'think, therefore, that, the court did no't properly limit and explain the use which could be legitimately made by the jury 'of 'the fact (if it ■existed) 'that the fathers of the accused 'and his alleged victim, respectively, had endeavored to effect an amicable adjustment of the prosecution.

3. There was no evidence at 'all that the accused himself had made 'any “proposition of settlement,” and «accordingly, the charge above quoted is further erroneous in that it assumes and deals with the hypothesis that he had made such a proposition.

4. The motion for a new trial complains of other instructions given to «the jury. 'Some of these are inaccurate, and do not clearly present the law of the case. They are not, however, of sufficient importance 'to require special mention or elaboration. The motion for 'a new trial also presents other* minor questions with which it is unnecessary to deal specifically.

On the whole, we think -that because of the 'errors which have in this opinion been distinctly indicated, there should be another trial of the case. Jwdgment reversed.  