State v. Cooke

179 S.E.2d 365 (1971)

278 N.C. 288

STATE of North Carolina v. Bernard COOKE.

No. 7.

Supreme Court of North Carolina.

March 10, 1971.

*367 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Sidney S. Eagles, Jr., for the State.

Charles O'H. Grimes, Raleigh, for defendant appellant.

MOORE, Justice.

The defendant's assignments of error are: (1) The trial court erred in ruling that the seven-year-old prosecuting witness was competent to testify, and (2) the court erred in denying defendant's motions for nonsuit and arrest of judgment.

There was no error in holding that the child who was the victim of this offense was a competent witness. There is no age below which one is incompetent as a matter of law to testify. The test of competency is the capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the jury in determining the truth with respect to the ultimate facts which it will be called upon to decide. Competency is to be determined at the time the witness is called to testify and rests mainly, if not entirely, in the sound discretion of the trial judge in the light of his examination and observation of the particular witness. State v. Bowden, 272 N.C. 481, 158 S.E.2d 493; State v. Turner, 268 N.C. 225, 150 S.E.2d 406; Artesani v. Gritton, 252 N.C. 463, 113 S.E.2d 895; State v. Merritt, 236 N.C. 363, 72 S.E.2d 754; 7 Strong's N.C. Index 2d, Witnesses § 1; Stansbury's N. C. Evidence § 55 (2d ed., 1963); 2 Wigmore on Evidence §§ 505-509 (3d ed., 1940); 3 Jones on Evidence § 757 (5th ed., 1958); Annot., 81 A.L.R.2d 386.

In McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321, Justice Parker (later Chief Justice) quotes with approval from Wheeler v. United States, 159 U.S. 523, 16 S. Ct. 93, 40 L. Ed. 244 (in which a boy nearly five and one-half years old was held to be a competent witness in a murder case), as follows:

"`That the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness, is clear. While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review, unless from that which is preserved it is clear that it was erroneous. These rules have been settled by many decisions, and there seems to be no dissent among the recent authorities.'"

In the instant case the prosecutrix was examined in the absence of the jury with reference to her intelligence, understanding, and religious belief concerning the telling of a falsehood. Among other things, she related where she lived, what school she attended, the names of her teachers and the grades she made. She further testified that she regularly attended the House of Prayer Church with her mother where she was taught about God and the Bible; that she knew an oath meant that she was to tell the truth and if she did not tell the truth, she would get a whipping and get punished.

*368 The defendant contends that due to certain conflicting statements made by the prosecutrix on the voir dire examination, the court erred in finding that the prosecutrix was a competent witness. "Conflicts in the statements by a witness affect the credibility of the witness, but not the competency of the testimony." 7 Strong's N.C. Index 2d, Witnesses § 2; Graham v. Spaulding, 226 N.C. 86, 36 S.E.2d 727. And where there is conflicting evidence offered in the voir dire hearing, the judge's findings of fact are binding on this Court if supported by competent evidence in the record. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344. In the present record there is ample evidence to support the judge's finding that the prosecutrix was a competent witness.

Defendant next assigns as error the trial court's denial of his motion for judgment as of nonsuit. This assignment is without merit. Where, taken in the light most favorable to the State, there is sufficient evidence from which a jury could find that the offense charged had been committed and that defendant committed it, nonsuit should be denied. State v. Primes, 275 N. C. 61, 165 S.E.2d 225; State v. Lipscomb, 274 N.C. 436, 163 S.E.2d 788; State v. Goines, 273 N.C. 509, 160 S.E.2d 469; State v. Davis, 272 N.C. 469, 158 S.E.2d 630; 2 Strong's N.C. Index 2d, Criminal Law § 104. The testimony of the prosecuting witness, corroborated in part by her mother, her grandmother, and the examining physician, is sufficient to withstand a motion for judgment as of nonsuit.

Defendant finally assigns as error the court's denial of his motion in arrest of judgment. "A motion in arrest of judgment is one made after verdict and to prevent entry of judgment, and is based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record. * * * A judgment in a criminal prosecution may be arrested on motion duly made when, and only when, some fatal error or defect appears on the face of the record proper." 3 Strong's N. C. Index 2d, Criminal Law § 127, pp. 42-43; State v. Benton, 275 N.C. 378, 167 S.E.2d 775; State v. Stokes, 274 N.C. 409, 163 S.E.2d 770; State v. Ingram, 271 N.C. 538, 157 S.E.2d 119; State v. Higgins, 266 N.C. 589, 146 S.E.2d 681. The defendant did not point out any such error or defect, and a careful examination of the record discloses none.

No Error.