
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.
    Rehearing Denied March 11, 1914.)
    1. Witnesses (§ 40)--Competency — Children.
    A child under six years of age, who had sufficient capacity to remember ordinary occurrences, and understood that it was wrong to testify falsely under oath, and that she would not only be punished hereafter, but would be sent to the penitentiary for perjury, is competent to testify.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.]
    2. Rape (§ 51) — Prosecution—Evidence— Sufficiency.
    In a prosecution for rape, evidence held sufficient to support the conviction.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. § 51.]
    3. Infants (§ 66) — Criminal Responsibility.
    Under Pen. Code 1911, art. 34, providing that no person shall be convicted of any offense committed before he was of the age of nine years, except for perjury, and for that only when it shall appear that he had sufficient discretion to understand the nature and obligation of an oath, the statutory discretion means more than the minor’s knowledge between good and evil, but he must know the nature and illegality of the particular act.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 172; Dec. Dig. § 66.]
    4. Witnesses (§ 40) — Competency—Infants.
    Pen. Code 1911, art. 311, provides that, when perjury is committed on the trial of a capital felony, and the person guilty of such perjury has sworn falsely to a material fact tending to produce conviction, and the person so accused is convicted and suffers the penalty of death, the punishment of the perjury so commit-' ted shall be death. Articles 34 and 35 provide that no person shall be convicted of any offense committed before he was of the age of 9 years, except for perjury, and for that only when he had sufficient discretion to understand the nature and obligation of an oath, and that, for an offense committed before he arrived at the age of 17 years, no person shall be punished with death. Held that, notwithstanding the provision of Const, art. 1, § 5, that oath and affirmations shall be taken subject to the pains and penalties of perjury, an infant of under 7 years of age is competent to testify in a capital felony, even though she is not subject to the punishment of death, where the death penalty is not inflicted upon the accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.]
    5. Constitutional Law (§ 70) — Pbovince OF JUDICIARY.
    The wisdom of a law cannot be questioned by the courts.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Douglass Smith was convicted of crime, and he appeals.
    Affirmed.
    Herbert W. Reed and Fred L. Williams, both of Beaumont, for appellant C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of rape, his punishment being assessed at 15 years’ confinement in the penitentiary.

A bill of exceptions recites that in making out the case the witness Cleo Johnson, the little girl alleged to have been raped, was sworn to testify in the case. Objection was urged on the ground that it had been proved by the witness Taylor Johnson, father of the witness, that she was not quite six years of age, therefore was not competent to testify in a capital case. In answer to this objection, the court said he would examine the child to ascertain something about her, whereupon counsel renewed objection. After examining the child, the court pronounced her competent, and permitted her testimony. Counsel objected that witness was incompetent to testify by reason of the fact she was under seven years of age, and, as a matter of law, irrespective of intelligence, a child under seven years of age is incompetent to testify in a capital case. After hearing argument of defendant’s counsel that, inasmuch as the only penalty affixed to perjury committed in a capital case is death, and since it was impossible to know what punishment would be given the defendant, and since a person under 17 years of age cannot be punished in this state by the death penalty, therefore the 6 year old witness would not be amenable to punishment for perjury, should the death sentence be inflicted, and consequently she could not testify subject to the pains and penalties of perjury provided in section 5 of article 1 of the Constitution. All the objections were overruled, and the witness testified. The court qualifies this bill as follows: “The court carefully examined this witness as to her understanding of the nature and obligation of an oath. The examination disclosed that she had gone to school and knew her A B C’s; she told the name of her teacher, the names of her brother and other relatives, the school her brother attended; that her mother was dead, hat her father was living, and gave his name; that she was not living now with her father, but with her auntie, giving her name; told how many children her auntie had, and gave their names; that she lived there; that they were good to her; that she went to Sunday school out at her auntie’s church; that she heard about God, that God was up in heaven; that she knew about the devil—he was a bad man; that, if she was good, when she died she would go to heaven, and, if she was bad, she would go to the bad man; that she knew what it was to tell stories; that the knew what it meant to hold up her hand and swear she would tell the truth; and that, if she did not tell the truth, she would go to the bad man and the penitentiary. The child was quite above the ordinary in intelligence for one of her age, and had the mental capacity to qualify her as a witness in the case.”

The court permitted her to testify, and these matters and facts are set up in the bill of exceptions as qualified by the judge. Under the authorities in this state, she seems to have met the requirements of the law as to competency, and the court did not err in permitting her to testify. See White’s Ann. Code Or. Proc. art 768, subd. 2. For collated authorities see sections 951, 952, 953, 954.

The evidence in the case is approved for its brevity, succinctness, and directness, covering only a page.- The statement of facts recites the parties agreed that on the trial Oleo Johnson, prosecutrix, testified the defendant had carnal intercourse with her; that he penetrated her female organ with his male organ, in the state of Texas and county of Jefferson, at a time before the presentment of this indictment, and within one year prior to the presentment of the indictment. That no other testimony was introduced to prove penetration or the commission of the necessary acts essential to constitute the crime of rape. However, the brother, aged nine, of the prosecuting witness testified that on or about the time of the commission of the alleged offense that the defendant met him and his sister, Oleo Johnson, the prosecuting witness, near the house where the crime was alleged to have taken place, and gave him a nickel and sent him off to get firecrackers, and that he left his sister, Gleo Johnson, with the defendant. There was testimony of other witnesses to the effect that the defendant lived in a house a few doors from where prosecuting witness lived, with an aunt, and that appellant was often at the aunt’s house; that, in the absence of her testimony, the commission of the crime of rape on her person was not proved to have been committed by the defendant, Douglass Smith; that the witness Cleo Johnson was a girl under six years of age at the time she testified in said cause; that her age was established by her father and not contradicted. This is the testimony. Taking the statement of facts, the rape was admitted, that is, it was admitted she swore to penetration, and there was no contradiction of that fact. We are of opinion that, under the authorities, the court was not in error in permitting the little girl to testify, and that the evidence presented by this record is sufficient to sustain the conviction. Certainly, if appellant had intercourse with the little girl—that is, if penetration occurred—she' being under 15 years -of age, the offense of rape is shown.

Appellant’s contention is that, under the facts, the little girl was incompetent, not by reason of her intelligence, but by reason of the fact that the offense was a capital one, and, being under 17 years of age, the girl was incompetent, because she could not be punished with death. The statute (article 34, Penal Code) provides that: “No person shall in any case- be convicted of any offense committed before he was of the age of nine years, except perjury, and for that only, when it shall appear by proof that he had sufficient discretion to understand the nature and obligation of an oath; nor of any other offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.” It has been held that the statutory discretion means more than the minor’s knowledge of the difference between good and evil. He must know the nature and illegality of the particular act Parker v. State, 20 Tex. App. 451; Keith v. State, 33 Tex. Cr. R. 341, 26 S. W. 412; Linhart v. State, 33 Tex. Cr. R. 504, 27 S. W. 260; Price v. State, 50 Tex. Cr. R. 71, 94 S. W. 901. This is a matter for the court, not the jury.

The rule with reference to governing the discretion of witnesses under such circumstances has been discussed in Wusnig v. State, 33 Tex. 651; Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905. Article 35, Penal Code, provides: “A person, for an offense committed before he arrived at the age of seventeen years, shall in no case be punished with death; but may, according to the nature and degree of the offense, be punished by imprisonment for life, or receive any of the other punishments affixed in this Code to the offense of which he is guilty.” It has been held also that first degree murder by a person under 17 years of age is not a capital offense. Ex parte Walker, 28 Tex. App. 246, 13 S. W. 861.

Article 311, Penal Code, is in the following language: “When the perjury is committed on a trial of a capital felony, and the person guilty of such perjury has, on the trial of such felony, sworn falsely to a material fact tending to produce conviction; and the person so accused of the capital felony is convicted and suffers the penalty of death, the punishment of the perjury so committed shall I be death,”

Section 310, Penal Code, provides that: “The crime of perjury, except as in cases provided for in article 311 of the Penal Code, shall be punished by imprisonment in the penitentiary for a term not more than ten years nor less than two years.”

Appellant’s contention, and his main contention, is that the witness, being a minor under 17 years of age, could not be capitally punished under the statute, and therefore, under the articles quoted, the child could not be used as a witness at all, because, by virtue of the terms of article 311, the perjury, if perjury, was committed in a capital case. We have read with great interest the learned argument of counsel for appellant, in which the reasons are stated why his position should be sustained. It shows wonderful research and profound erudition, but we are of opinion that, by the terms of article 311 of the Penal Code, his position is not sound. In order to make his position tenable, the conviction in this case should have been for the death penalty. Had the jury awarded the defendant in the case the death penalty, the question would have been fraught with many difficulties, but, unless the perjury, if perjury, is committed as to a material fact before a jury in a case in which the witness testified resulted in the death penalty, we are of opinion that the terms of article 311 of the Penal Code would not apply. The perjury must not only be in a capital case, but it must be as to a material fact, and the result of the trial must end in the death penalty conviction in which the party suffers death. It is a peculiar statute in some respects, but the Legislature saw proper to enact it in the form in which it is enacted, and, having the power to do so, this court would be without authority to construe the meaning of that statute otherwise than expressed on the face by its terms. Therefore appellant’s contention is not brought within the terms of the article, because the defendant was only allotted 15 years in the penitentiary ; he was not convicted of the death penalty. We are of opinion that appellant’s contention is not sound that, as the death penalty might be inflicted therefor, the witness was incompetent. The statute requires more than this, not only that the death penalty might be inflicted, but, as a matter of fact, it is inflicted, and that the witness testified to some material fact bringing about or tending to bring about that conviction. That the witness testified to the material facts in the case is conceded in the statement of facts. The main fact, perhaps, in the case, or at lease one of the most cogent facts necessary to conviction for rape, is penetration. This occurred. It is not every perjury committed in capital cases that would justify a prosecution or conviction for perjury with a view of obtaining the death penalty. In order to obtain the death penalty in death cases, the terms of the statute must be met, and the record must show that these terms were fully met. As we view the case, and as we understand the law from these statutes, appellant was not brought within the terms of article 311 of the Penal Code, and therefore his position that the child was incompetent for these reasons is not well taken.

Whether it be wise or not that the Legislature should make the exception in favor of perjury authorizing the conviction of children is not for this court to say. The Legislature saw proper to do so, and excused from punishment all children under nine years of age, except in perjury cases. They had the authority, under the Constitution, to enact the statute, and this court is not empowered to revise their authority. The wisdom of it may or may not be questioned. The authority is a different proposition.

Finding no such error in the record as requires a reversal of the judgment, it is ordered that it be affirmed.  