
    ANDERSON v. STATE.
    (No. 6030.)
    (Court of Criminal Appeals of Texas.
    Dec. 16, 1920.)
    1. Assault and battery <&wkey;>77 — Count, charging aggravated assault on child, need not allege means.
    A count, charging an aggravated assault by an adult male upon a child, need not allege the means used in committing the assault.
    2. Criminal law <&wkey;l 172(7)— Submitting simple assault on' charge of aggravated assault is favorable to accused.
    In a prosecution for aggravated assault by an adult male upon a child, the submission of simple assault is favorable to accused, and he cannot complain thereof on appeal.
    3.'Assault and battery <&wkey;69 — Assault in defense of property justified only if necessary.
    An assault by an adult man1 upon a child can be justified on the right to protect property from trespass only if the circumstances made the assault necessary.
    4. Witnesses t&wkey;45(2) — Boy, who did not know nature of oath, held incompetent.
    A 7 year old negro boy, who stated on voir dire that he did not know what it meant to swear, or that he would be punished if he swore falsely, but who stated that he knew it was right to tell the truth, and that he was going to tell it, is incompetent to testify as a witness, though he might have been qualified to testify if the court had further instructed him as to the nature of the oath and the punishment for false swearing.
    5. Criminal law <&wkey;l 168(3) — Admitting testimony of incompetent witness essential to conviction is prejudicial.
    Error in admitting testimony of a boy who was incompetent to testify requires reversal, where his testimony was .essential to make out the state’s case.
    Appeal from Lee County Court; John H. Tate, Judge.
    Chris Anderson was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    The Bowers, of Giddings, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant, an adult male, was charged with aggravated assault upon a child. The evidence shows that the child was trespassing upon his premises, and that the appellant whipped him. The indictment in this count did not allege the means used, though in another count it was charged the assault was committed with a stick. The evidence showed it was done with a switch. The prosecution could be sustained under the first count; the law not requiring in this ground of aggravation that the means used in committing the assault be alleged. Collins v. State, 39 Tex. Cr. R. 39, 44 S. W. 846.

No just complaint can be founded upon the submission of the issue of simple assault It was favorable to the appellant. Branch’s Ann. Texas P. C. p. 927, and cases listed.

Nor wa^ there error in refusing to charge upon the right to commit the assault in protecting property. We understand that to justify upon this ground the circumstances must make the assault necessary.

The competency of the state’s witness is challenged. I-Ie' was a negro boy, seven years of age. The boy’s testimony on voir dire discloses that he did not know what it meant to swear; that he did not know that he would be punished if he swore falsely. In the court’s qualification of the bill, it appears that the court asked him, “Is it right to tell a story or to tell the truth?” to-which he replied: “It is right to tell the truth,” and that he was going to tell the truth. The statute makes children incompetent to testify who are wanting in sufficient intellect, or who do not understand the obligation of an oath. In our judgment, the bill fails to disclose that the child understood the obligation of an oath. He might have had sufficient intelligence, and under proper instruction might have understood the obligation. It would, we think, have been permissible to instruct him, either before putting him upon the witness stand, or in the absence of the jury we see no reason why the court might not have done so. Wharton’s Orim. Evidence, vol. 1, p. 745; Clinton v. State, 53 Fla. 98, 43 South. 312, 12 Ann. Cas. 151; 16 Amer. & Eng. Encyc. of Law (2d Ed.) p. 267. We think the competency of the witness is not disclosed by the record. Ake v. State, 6 Tex. App. 398, 32 Am. Rep. 586; Williams v. State, 12 Tex. App. 127; Holst v. State, 23 Tex. App. 1, 3 S. W. 757, 59 Am.- Rep. 770; Anderson v. State, 53 Tex. Cr. R. 341, 110 S. W. 54; Mays v. State, 58 Tex. Cr. R. 651, 127 S. W. 546.

We think there was error requiring reversal committed in overruling the objection to receiving the testimony of the child; his testimony being essential to make out the state’s case.

The judgment is reversed, and the cause remanded. 
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