
    STATE v. ZEEZICH.
    No. 3838.
    Decided November 24, 1922.
    (210 Pac. 927.)
    1.Criminal Law — Admission of Testimony of Witness of Questionable Competency Within Court’s Discretion. The admission of testimony of a witness whose mental capacity is questioned is within the sound discretion of the court and will1 not he reversed except for manifest abuse of discretion. Citing State v. Blythe, 20 Utah, 379, 58 Pac. 1108; State v. Moraseo, 42 Utah, 5, 128 Pac. 571; State v. Macmillan, 46 Utah, 19, 145 Pac. 833.
    2. Witnesses — Court May Exclude Witness’ Testimony Thouoh Sworn for Want of Mental Capacity. After a voir dire examination of a witness and the acceptance of his testimony, it may develop on examination as a witness that he is so mentally incapable as to warrant the court in excluding - his testimony, notwithstanding that he has been sworn as a witness; but such action must be founded on grounds of incompetency and not on questions affecting his credibility.
    3. Witnesses — Eight Year Old Girl Held Competent to Testify, Though She Never Heard of God. The testimony of a girl eight years old, who on voir dire examination testified that she knew “what it is to tell the truth” and “what it is to tell a lie” and that she would be punished if she told a lie, and that her mother and a district attorney had instructed her and told her to tell the truth, held admissible, though she testified that she never went to Sunday school and knew nothing about God.
    4. Criminal Law — Instruction as to Testimony of Eight Year Oi© Girl Held Sufficient. Instruction that jury should examine the testimony of eight year old girl with care and caution on account of her tender years and susceptibility to wrong impression held all that defendant could ask for.
    Appeal from District Court, Seventh District, Carbon County; F. E. Woods, Judge.
    Joe Zeezich was convicted of indecent assault, and he appeals.
    AFFIRMED.
    
      E. L. Pratt, of Salt Lake City, and L. A. McGee, of Price, for appellant.
    
      Harvey E. Gluff, Atty. Gen., and W. Eal. Fart', Asst. Atty. Gen., for the State.
   THURMAN, J.

Defendant was convicted of the crime of indecent assault upon a female child under the age of fourteen years and sentenced to a term of imprisonment in the state prison not exceeding five years. Defendant appeals from the judgment and assigns as error the admission, over his objection, of evidence alleged by him to be incompetent.

The only evidence appearing in the record is that of the little girl upon whom it was alleged the assault was committed. She was eight years when her testimony was taken. Defendant objected to her being sworn as a witness, whereupon she was examined as to her competency to testify in the cause. In answer to questions propounded to her by the district attorney, she gave her name, age, and place of residence. She stated she had gone to school, knew how to read, and knew “what it i§ to tell the truth,” and also “what it is to tell a lie,” and that she would tell the truth. She identified several persons in the courtroom, among whom were her mother and the defendant. She said that if she told a lie sbe would be punished. On cross-examination sbe said sbe bad talked with ber mother and also the district attorney, and that they bad told her to tell the truth. Sbe said if sbe told a lie sbe would ‘ ‘ get a licking. ’ ’ . Sbe stated sbe did not go to Sunday school and that ber mother went neither to Sunday school nor to church. Sbe also said sbe knew nothing about God; bad never beard of him, and that nobody ever talked to ber about a Heavenly Father. In the course of her cross-examination sbe also stated sbe bad been told what to say. The foregoing is the substance of ber voir dire examination. The court overruled defendant’s objection. The witness was sworn and testified on behalf of the state. Her evidence was sufficient to sustain the conviction.

The only question is: Hid the court err in permitting the child to be sworn as a witness ?

The authorities are practically uniform to the effect that the admission of testimony in cases of this kind is within the sound discretion of the trial court, and that its decision in such cases will not be reversed unless there is a manifest abuse of discretion. Such has been the bolding of this court in many decisions heretofore rendered. State v. Blythe, 20 Utah, 379, 58 Pac. 1108; State v. Morasco, 42 Utah, 5, 128 Pac. 571; State v. Macmillan, 46 Utah, 19, 145 Pac. 833. There are no decisions to the contrary in this jurisdiction. Besides holding that the question of competency is within the discretion of the trial court, these cases hold that, not age, but mental capacity, is the test of competency.

In State v. Blythe, supra, at page 380 of 20 Utah, at page 1108 of 58 Pac., it is said: ,

“Not age, but capability of receiving just impressions of facts and of relating them truly, are the tests of competency, under the statute.”

In State v. Morasco, supra, the court states the rule as follows:

“If the child has the mental capacity to understand the obligations of an oath — that is, appreciates the difference between truth and falsehood — is sensible of the impropriety of telling a falsehood, and that it is his duty to tell the truth, and is capable of receiving just impressions of the facts of which he is to testify, and has the ability to relate them correctly, he is a competent witness.”

In State v. Macmillan, supra, a case in wbicb tlie offense charged and the age of the child were the same as in the case at bar, the court, speaking of the discretion vested in the trial court, .at page 22 of 46 Utah, at page 834 of 145 Pac., says:

“It is next contended that the district court erred in receiving the testimony of the little -girl, with whose person the indecent liberties were taken, and who testified in behalf of the state, upon the ground that she by reason of her youth and want of comprehension of the solemnity of an oath, was incompetent to testify. The question of the competency of a child who is called as a witness, in the very nature of things, must, to a large extent at least, be left to the sound discretion of the trial court. When that court has passed upon the question either way, we cannot interfere, unless it is clearly made to appear that the court abused the discretion vested in it.”

In addition to our own decisions upon tbis question, counsel for the state call our attention to numerous text-writers and cases from other jurisdictions, among which are the following: Wharton’s Crim. Ev. vol. 1 (10th Ed.) §§ 366-367; Underhill, Crim. Ev. vol. 4, § 720; 40 Cyc. 200; 7 Eney. of Ev. pp. 271, 272; 28 R. C. L. p. 462; Wheeler v. United States, 159 U. S. 523, 16 Sup. Ct. 93, 40 L. Ed. 244; State v. Meyers, 135 Iowa 507, 113 N. W. 322, 124 Am. St. Rep. 291, 14 Ann. Cas. 1.

Many other authorities are cited generally all to the same effect.

Counsel for appellant cites one case only, Donnelley v. Territory, 5 Ariz. 291, 52 Pac. 368, and-quotes the third paragraph of the syllabus, which reads as follows:

“A witness 6 years and II months of age, whom defendant was charged with assaulting, on the voir dire did not reveal much knowledge of the nature of an oath or the consequences of falsehood, except that people who told lies would go to jail. Besides, his testimony tended strongly to corroborate his mother’s, and he admitted having been under her instructions in regard to his testimony, and a great deal of feeling existed against defendant at the trial. Held, that he should not have been permitted to testify.”

From the foregoing quotation it appears that the Arizona Supreme Court decided tbe question of competency, not alone upon wbat was developed on tbe voir dire examination, but also upon tbe fact that tbe evidence of tbe child was corroborated by that of bis mother from whom be bad received instructions.

We are of tbe opinion that the principle upon which tbe court decided tbe question was fundamentally wrong. Tbe witness was examined as to bis competency to testify. After such examination, tbe court decided to take bis testimony. Whether or not tbe testimony was corroborated, or was in conflict with that of another witness, and tbe conclusions to be drawn therefrom, were questions for the jury. A witness may be instructed and corroborated by another witness and nevertheless tell tbe truth. A rule which would permit a trial judge presiding over a trial by jury to exclude a witness on account of matters merely affecting bis credibility would be a novelty in American jurisprudence. It is .quite probable that, after a witness has been examined and passed upon a voir dire examination, it might develop upon bis examination as a witness that be is mentally incapable of understanding facts and intelligently communicating them as a witness. In such case, tbe court would, no doubt, have tbe power to reject bis testimony notwithstanding be bad been sworn as a witness in tbe ease. Tbe exclusion, however, should be on tbe grounds of incompetency, and not upon questions affecting bis credibility. We are therefore not inclined to adopt tbe reasoning of tbe Arizona case.

In tbe case at bar tbe witness said she knew “wbat it is to tell the truth” and “wbat it is to tell a lie”; she knew she should tell tbe truth, and would do so if sworn as a witness; she had been told to tell tbe truth by her mother and tbe district attorney; she knew if she told a lie she would be punished. It is true she said she knew nothing about God. In tbe administration of justice we seriously doubt tbe expediency of excluding tbe testimony of a witness on that account. If tbe test were applied to adults, as well as infants, it might disqualify thousands of persons hitherto supposed to be competent to testify in a court of justice. The witness also stated that her mother told her what to say. In the same connection, she reiterated time and again that her mother told her to tell the truth. The jury could easily reconcile the two statements as meaning one and the same thing. They were instructed by the court to examine the testimony of the child with care and caution on account of her tender years and susceptibility to wrong impressions concerning facts. The instructions in that respect were all that defendant could ask.

In view of the mental capability of the witness as disclosed by her answers to the questions propounded, we are not justified in holding that the admission of her testimony was an abuse of discretion.

The judgment of the trial court is affirmed.

CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.  