2020 Georgia Code
Title 24 - Evidence
Chapter 6 - Witnesses
Article 1 - General Provisions
§ 24-6-601. General Rule of Competency

Except as otherwise provided in this chapter, every person is competent to be a witness.

(Code 1981, §24-6-601, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- Adultery generally, § 16-6-19.

Child abandonment generally, § 19-10-1.

Testimony as to child's description of sexual contact or physical abuse, § 24-8-820.

Competency to testify in general, Fed. R. Evid. 601.

- For article, "The Evidence Code and Cases Instituted in Consequence of Adultery," see 15 Ga. St. B.J. 176 (1979). For article, "The Need for a Special Exception to the Hearsay Rule in Child Sexual Abuse Cases," see 21 Ga. St. B.J. 50 (1984). For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990). For note discussing the admissibility of husband and wife's testimony concerning nonaccess in determining the legitimacy of a child, see 6 Ga. St. B.J. 448 (1970). For note, "The Georgia Child Hearsay Statute, and the Sixth Amendment: Is There a Confrontation?," see 10 Ga. St. U.L. Rev. 367 (1994). For comment discussing the effect of mental unsoundness on the competency of witnesses, in light of O'Shea v. Jewel Tea Co., 233 F.2d 530 (9th Cir. 1956), see 19 Ga. B.J. 533 (1957). For comment on Western & A.R.R. v. Hart, 95 Ga. App. 810, 99 S.E.2d 302 (1957), holding that the accuracy of the opinion of a 12 year old as to the speed of a train is a matter for the jury to decide and its admission into evidence was not error, see 20 Ga. B.J. 395 (1958). For comment on Bacon v. State, 222 Ga. 151, 149 S.E.2d 111 (1966), see 18 Mercer L. Rev. 506 (1967).

ANALYSIS

• General Consideration
• Role of Court
• Objection Requirement
• Children
• Insane Persons
• Retarded Persons
• Application in Other Circumstances

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, §§ 3796, 3800, 3803, 3804, 3805, former Code 1873, §§ 3852, 3856, 3859, 3860, 3861, former Code 1882, §§ 3852, 3856, 3859, 3860, 3861, former Civil Code 1895, §§ 5267, 5273, 5276, 5277, 5278, former Penal Code 1895, § 1012, former Civil Code 1910, §§ 5856, 5858, 5859, 5862, 5865, 5866, 5867, former Penal Code 1910, § 1038, former Code 1933, §§ 38-1601, 38-1603, 38-1607, 38-1608, 38-1610, 38-1611, 38-1612, and former O.C.G.A. §§ 24-9-1,24-9-2,24-9-5,24-9-6, and24-9-7 are included in the annotations for this Code section.

Everyone is presumed competent to testify, and even if a person is shown to have been insane, or to have been adjudged insane previously and is presently in a state mental hospital, this does not necessarily render the person incompetent to testify. Redfield v. State, 240 Ga. 460, 241 S.E.2d 217 (1978) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

There is no presumption that a witness is incompetent; and a witness offered may be permitted to testify, unless there is an objection or exception distinctly raising the question of the witness's competency. Dowdy v. Watson & Lewis, 115 Ga. 42, 41 S.E. 266 (1902) (decided under former Civil Code 1895, §§ 5267, 5276, 5277, 5278).

- An objection on the ground of admissibility of the evidence does not raise the issue as to the competency of the witness. Sumter County v. Pritchett, 125 Ga. App. 222, 186 S.E.2d 798 (1971) (decided under former Code 1933, § 38-1603).

Lex fori regulates competency. Bowers v. Southern Ry., 10 Ga. App. 367, 73 S.E. 677 (1912) (decided under former Civil Code 1910, §§ 5858 and 5859).

- There was competent evidence to support an award based on claimant's testimony, considering its interpretation and credibility; the superior court's denial of the award solely because of the claimant's statements was reversed. Gasses v. Professional Plumbing Co., 204 Ga. App. 69, 418 S.E.2d 424 (1992) (decided under former O.C.G.A. § 24-9-1).

Former Georgia witness competency statutes presented a reasonable requirement regarding the minimal level of understanding for people participating in one of the most important functions of government and did not violate the equal protection clause. Ambles v. State, 259 Ga. 406, 383 S.E.2d 555 (1989) (decided under former O.C.G.A. § 24-9-5).

State had standing to challenge the former Georgia witness competency statutes. Ambles v. State, 259 Ga. 406, 383 S.E.2d 555 (1989) (decided under former O.C.G.A. § 24-9-5).

- When, before the defendant's first trial, the defendant made the defendant's "motion to exclude the testimony of the victim on grounds of incompetency . . . pursuant to §§ 24-9-5 &24-9-7 [now repealed]" in the broadest of terms without distinctly alleging what category of "persons who do not have the use of reason" the victim fit into, and at no point in the defendant's first or second trials did the defendant raise a distinct objection to the competency of the witness, but simply requested a hearing without specifying any valid ground of incompetency as applied to the facts and circumstances of the case, the court did not err in refusing to conduct an examination. In addition to the court's observation of the victim and the victim's testimony during the course of the first trial, no applicable specific ground of incompetency was alleged. Webb v. State, 187 Ga. App. 348, 370 S.E.2d 204 (1988) (decided under former O.C.G.A. § 24-9-5).

- Ruling that a witness was incompetent to testify under former O.C.G.A. § 24-9-5(a) (see now O.C.G.A. §§ 24-6-601 and24-6-603) failed since there was absolutely nothing in the record to demonstrate that the witness could not understand the nature of the trial oath simply because the witness was originally from Somalia and spoke in halting English. Trueblood v. State, 248 Ga. App. 78, 545 S.E.2d 628 (2001) (decided under former O.C.G.A. § 24-9-5).

- If a witness was competent as to some matters and incompetent as to others, the objection could be taken under former statute at the time the witness offerred to testify as to the matters concerning which the witness was incompetent. Dowdy v. Watson & Lewis, 115 Ga. 42, 41 S.E. 266 (1902) (decided under former Civil Code 1895, §§ 5267, 5276, 5277, 5278).

- When the plaintiff and the plaintiff's guardian and conservator sued the defendants, a corporation, one of its franchised restaurants, and the owner of that restaurant, asserting that the plaintiff was harmed by a severe allergic reaction to a peach pie served to the plaintiff instead of the apple pie the plaintiff had ordered, summary judgment was properly granted to the defendants because the plaintiff's verified interrogatory responses were inadmissible due to the plaintiff's incompetence; and the trial court was authorized to disregard the plaintiff's verified interrogatory responses even though the verification preceded the ruling in the guardianship proceeding. Little v. Jim-Lar Corporation, 352 Ga. App. 764, 835 S.E.2d 794 (2019).

Role of Court

Jurisdiction of court and jury generally.

- Questions as to the relevancy and admissibility of the testimony are properly for the court. Its sufficiency and effect belong exclusively to the jury. Hotchkiss v. Newton, 10 Ga. 560 (1851) (decided under former law).

Trial court determines competency of a witness and jury decides credibility. Bearden v. State, 159 Ga. App. 892, 285 S.E.2d 606 (1981) (decided under former O.C.G.A. § 24-9-5).

- It is left to the sound discretion of the trial court to determine upon preliminary examination whether or not a child of tender years is a competent witness. Moore v. State, 79 Ga. 498, 5 S.E. 51 (1887) (decided under former Code 1882, §§ 3852, 3859, 3860, 3861); Beebee v. State, 124 Ga. 775, 53 S.E. 99 (1906); Young v. State, 125 Ga. 584, 54 S.E. 82 (1906) (decided under former Civil Code 1895, §§ 5267, 5276, 5277, 5278); Richardson v. State, 141 Ga. 782, 82 S.E. 134 (1914); Peterson v. State, 47 Ga. 524 (decided under former Civil Code 1895, §§ 5267, 5276, 5277, 5278); 50 Ga. 142 (1873); Rogers v. State, 11 Ga. App. 814, 76 S.E. 366 (1912) (decided under former Civil Code 1910, §§ 5856, 5865, 5866, 5867). Frasier v. State, 143 Ga. 322, 85 S.E. 124 (1915) See also; Holden v. State, 144 Ga. 338, 87 S.E. 27 (1915), overruled on other grounds, Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019), later appeal, Reece v. State, 155 Ga. 350, 116 S.E. 631 (1923) (decided under former Code 1868, §§ 3796, 3803, 3804, 3805); Bell v. State, 164 Ga. 292, 138 S.E. 238 (1927); Gordon v. State, 186 Ga. 615, 198 S.E. 678 (1938) (decided under former Civil Code 1910, §§ 5856, 5865, 5866, 5867); Carver v. State, 60 Ga. App. 593, 4 S.E.2d 474 (1939); Ellison v. State, 197 Ga. 129, 28 S.E.2d 453 (1943) (decided under former Civil Code 1910, §§ 5856, 5865, 5866, 5867); Young v. State, 72 Ga. App. 811, 35 S.E.2d 321 (1945); Russell v. State, 83 Ga. App. 841, 65 S.E.2d 264 (1951) (decided under former Civil Code 1910, §§ 5856, 5865, 5866, 5867); Askins v. State, 210 Ga. 532, 81 S.E.2d 471 (1954); Allen v. State, 150 Ga. App. 605, 258 S.E.2d 285 (1979) (decided under former Civil Code 1910, §§ 5856, 5865, 5866, 5867); Wood v. State, 195 Ga. App. 424, 393 S.E.2d 720 (1990);(decided under former Civil Code 1910, §§ 5856, 5865, 5866, 5867);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former O.C.G.A. § 24-9-7).

Question of competency is one of law for the trial judge to determine in the judge's discretion. Cooper v. Simmons, 50 Ga. App. 130, 177 S.E. 263 (1934) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612); Ellison v. State, 197 Ga. 129, 28 S.E.2d 453 (1943); Gilstrap v. State, 90 Ga. App. 12, 81 S.E.2d 872 (1954) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612); Porter v. State, 237 Ga. 580, 229 S.E.2d 384 (1976); 430 U.S. 956, 97 S. Ct. 1603, 51 L. Ed. 2d 806 (1977) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);cert. denied,(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

After an objection as to the competency of a witness, the duty to examine the witness and determine the witness's competency rests with the trial court. Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

Once a child's competency has been thoroughly tested in court, it is within the sound discretion of the trial court whether or not to rule the child competent to testify as a witness. Pope v. State, 167 Ga. App. 328, 306 S.E.2d 326 (1983) (decided under former O.C.G.A. § 24-9-7).

- Competency of a witness is a question generally to be determined by the court; the jury may consider such evidence only for the purpose of affecting the credibility of such witness. Bonner v. State, 59 Ga. App. 737, 1 S.E.2d 768 (1939) (decided under former Code 1933, § 38-1607).

- When, before the defendant's first trial the defendant made his "motion to exclude the testimony of the victim on grounds of incompetency . . . pursuant to §§ 24-9-5 &24-9-7 [repealed]" in the broadest of terms without distinctly alleging what category of "persons who do not have the use of reason" the victim fit into, and at no point in the defendant's first or second trials did the defendant raise a distinct objection to the competency of the witness, but simply requested a hearing without specifying any valid ground of incompetency as applied to the facts and circumstances of the case, the court did not err in refusing to conduct an examination. In addition to the court's observation of the victim and the victim's testimony during the course of the first trial, no applicable specific ground of incompetency was alleged. Webb v. State, 187 Ga. App. 348, 370 S.E.2d 204 (1988) (decided under former O.C.G.A. § 24-9-7).

- Fact that the court allowed the attorneys representing both sides to actually pose the questions in a proceeding to determine competency of witnesses did not diminish the function or abdicate responsibility for making the decision based on evidence produced before the court and the court's observations. Sprayberry v. State, 174 Ga. App. 574, 330 S.E.2d 731 (1985) (decided under former O.C.G.A. § 24-9-7); Vaughn v. State, 226 Ga. App. 318, 486 S.E.2d 607 (1997);(decided under former O.C.G.A. § 24-9-7).

- When counsel is permitted to examine witness as to issue of competency, parameters of such inquiry rest within broad discretion of trial court. Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

- Decision of the trial court regarding competency will not be overturned in absence of abuse of discretion. Cooper v. Simmons, 50 Ga. App. 130, 177 S.E. 263 (1934) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612); Porter v. State, 237 Ga. 580, 229 S.E.2d 384 (1976); 430 U.S. 956, 97 S. Ct. 1603, 51 L. Ed. 2d 806 (1977), cert. denied, Whitehead v. State, 144 Ga. App. 836, 242 S.E.2d 754 (1978) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612); Miller v. State, 250 Ga. 436, 298 S.E.2d 509 (1983); Herron v. State, 155 Ga. App. 791, 272 S.E.2d 756 (1980), overruled on other grounds,(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

- There may be situations when the trial judge would not have to examine the potential witness. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

- Although after a preliminary examination the court may hold a child competent to testify, the credibility of the witness is for the jury; and in determining whether or not the jury will credit the testimony of such witness, the age of the witness and the witness's understanding or lack of understanding as to the nature of an oath, as developed on the examination before the jury, are matters for the consideration of the jury. Frasier v. State, 143 Ga. 322, 85 S.E. 124 (1915) (decided under former Civil Code 1910, §§ 5856, 5865, 5866, 5867).

- When the trial court without any examination whatever permits the jury to pass upon the competency of a witness who has been objected to as incompetent at the time the witness was offered, on the ground that the witness has been adjudged insane and not restored to sanity, a new trial will be granted. Gilstrap v. State, 90 Ga. App. 12, 81 S.E.2d 872 (1954) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

- If the determination of the question as to whether a witness is competent to testify depends upon the decision of disputed facts, the proper practice is for the judge, after a preliminary examination, to decide the questions of fact thus arising; but the judge may in the judge's discretion take the opinion of the jury thereon. Dowdy v. Watson & Lewis, 115 Ga. 42, 41 S.E. 266 (1902) (decided under former Civil Code 1895, §§ 5267, 5276, 5277, 5278).

- If a witness has been declared to be competent by the court, and during the progress of the trial evidence should be introduced which would make the witness's competency doubtful, the jury should be instructed to determine this question of fact, and, if the jury should find that the witness is incompetent, not to consider the witness's testimony on the points concerning which the witness was not competent to testify. Dowdy v. Watson & Lewis, 115 Ga. 42, 41 S.E. 266 (1902) (decided under former Civil Code 1895, §§ 5267, 5276, 5277, 5278).

- When the court examines a child as to the child's understanding of the nature of an oath and decides that the child is competent to testify, the appellate court will not interfere, when it does not appear that such discretion has been manifestly abused. Moore v. State, 79 Ga. 498, 5 S.E. 51 (1887) (decided under former Code 1882, §§ 3852, 3859, 3860, 3861); Peterson v. State, 47 Ga. 524 see also, 50 Ga. 142 (1873), later appeal, Beebee v. State, 124 Ga. 775, 53 S.E. 99 (1906) (decided under former Code 1882, §§ 3852, 3859, 3860, 3861); Young v. State, 125 Ga. 584, 54 S.E. 82 (1906); Richardson v. State, 141 Ga. 782, 82 S.E. 134 (1914) (decided under former Civil Code 1895, §§ 5267, 5276, 5277, 5278); Rogers v. State, 11 Ga. App. 814, 76 S.E. 366 (1912); Frasier v. State, 143 Ga. 322, 85 S.E. 124 (1915) (decided under former Civil Code 1895, §§ 5267, 5276, 5277, 5278); Shields v. State, 16 Ga. App. 680, 85 S.E. 1057 (1915); Holden v. State, 144 Ga. 338, 87 S.E. 27 (1915), overruled on other grounds, Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019) (decided under former Civil Code 1910, §§ 5856, 5868, 5866, 5867); Reece v. State, 155 Ga. 350, 116 S.E. 631 (1923); Bell v. State, 164 Ga. 292, 138 S.E. 238 (1927) (decided under former Civil Code 1910, §§ 5856, 5868, 5866, 5867); Gordon v. State, 186 Ga. 615, 198 S.E. 678 (1938); Carver v. State, 60 Ga. App. 593, 4 S.E.2d 474 (1939) (decided under former Civil Code 1910, §§ 5856, 5868, 5866, 5867); Young v. State, 72 Ga. App. 811, 35 S.E.2d 321 (1945); Russell v. State, 83 Ga. App. 841, 65 S.E.2d 264 (1951) (decided under former Civil Code 1910, §§ 5856, 5868, 5866, 5867); Askins v. State, 210 Ga. 532, 81 S.E.2d 471 (1954); Lashley v. State, 132 Ga. App. 427, 208 S.E.2d 200 (1974) (decided under former Civil Code 1910, §§ 5856, 5868, 5866, 5867); Bradley v. State, 148 Ga. App. 727, 252 S.E.2d 648 (1979); Allen v. State, 150 Ga. App. 605, 258 S.E.2d 285 (1979) (decided under former Civil Code 1910, §§ 5856, 5868, 5866, 5867);(decided under former Civil Code 1910, §§ 5856, 5868, 5866, 5867);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

Competency of seven-year-old as a witness is decided by the trial court, and an appellate court will overrule that determination only if there is an abuse of discretion. Lancaster v. State, 250 Ga. 871, 301 S.E.2d 882 (1983) (decided under former O.C.G.A. § 24-9-7).

Objection Requirement

Testimony received without objection.

- Testimony of an incompetent witness, if it is material, when received without objection, is of probative value, and will be considered and given such weight as the jury deems the testimony entitled to in view of the witness's interest and other circumstances. Brittain Bros. Co. v. Davis, 174 Ga. 1, 161 S.E. 841 (1931) (decided under former Civil Code 1910, §§ 5858 and 5859).

- Witness offered may be permitted to testify, unless there is an objection or exception distinctly raising the question of the witness's competency. Sumter County v. Pritchett, 125 Ga. App. 222, 186 S.E.2d 798 (1971) (decided under former Code 1933, § 38-1603).

- Even though a witness may be termed incompetent, unless a question of public policy is involved, the incompetency of the witness may be waived. Williams v. State, 69 Ga. App. 863, 27 S.E.2d 54 (1943) (decided under former Code 1933, § 38-1603).

Children

Constitutionality.

- Former subsection (b) of O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) did not violate due process; it was not fundamentally unfair to require one accused of child molestation to face one's accuser, even if the accuser was unable to articulate the meaning of an oath, and the defendant had the opportunity to cross-examine the child witness, and test the child's credibility before the jury. Sims v. State, 260 Ga. 782, 399 S.E.2d 924 (1991) (decided under former O.C.G.A. § 24-9-5).

Subsection (b) of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) applied equally to all those accused of child molestation, and therefore did not violate the equal protection clause of the federal constitution. Sims v. State, 260 Ga. 782, 399 S.E.2d 924 (1991) (decided under former O.C.G.A. § 24-9-5).

Child "available to testify" in former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) meant one competent to testify under former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603). For offenses occurring before April 19, 1989, including child molestation, a child incompetent as a witness was not available to testify and any out-of-court statements were not rendered admissible by former § 24-3-16. Hunnicutt v. State, 194 Ga. App. 714, 391 S.E.2d 790 (1990) (decided under former O.C.G.A. § 24-9-5).

Former O.C.G.A. §§ 24-9-5 and24-3-16 (see now O.C.G.A. §§ 24-6-601,24-6-603, and24-8-820) must be construed together. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18 (1990) (decided under former O.C.G.A. § 24-9-5); McGarity v. State, 212 Ga. App. 17, 440 S.E.2d 695 (1994);(decided under former O.C.G.A. § 24-9-5).

Child was considered "available to testify" under former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) only if the child was "competent" to testify within the meaning of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603). Shaver v. State, 199 Ga. App. 428, 405 S.E.2d 281, cert. denied, 199 Ga. App. 907, 405 S.E.2d 281 (1991) (decided under former O.C.G.A. § 24-9-5).

Former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) did not expand the circumstances under which hearsay statements of a child could be admitted in evidence. Thornton v. State, 264 Ga. 563, 449 S.E.2d 98 (1994) (decided under former O.C.G.A. § 24-9-65).

Competency of children to testify in a divorce action could be established only by demonstrating that the children understood the nature of an oath as required by subsection (a) of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603). Woodruff v. Woodruff, 272 Ga. 485, 531 S.E.2d 714 (2000) (decided under former O.C.G.A. § 24-9-605).

- For offenses involving child victims occurring after April 19, 1989, a determination that the child victim is competent to testify was not necessary; a child witness was "available" for purposes of the Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), as long as the child was physically available to appear at trial. Gibby v. State, 213 Ga. App. 20, 443 S.E.2d 852 (1994) (decided under former O.C.G.A. § 24-9-5).

- Out-of-court statements of a victim of child molestation are admissible whenever the victim is available to appear at trial, whether or not the child is capable of understanding the nature of an oath and thus regardless of age or degree of comprehension. Lang v. State, 201 Ga. App. 836, 412 S.E.2d 866 (1991) (decided under former O.C.G.A. § 24-9-5).

- Under subsection (b) of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603), which provided that in certain limited categories of cases a child was deemed legally competent to testify, the prerequisite administration of the oath otherwise called for by former O.C.G.A. § 24-9-60 (see now O.C.G.A. § 24-6-603) had been obviated when the child did not comprehend the oath's nature. The child simply became an unsworn witness, made so because incapable of taking an oath. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18 (1990) (decided under former O.C.G.A. §§ 24-9-5 and24-9-60).

- Porter v. State, 237 Ga. 580, 229 S.E.2d 384 (1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1603, 51 L. Ed. 2d 806 (1977) (decided under former Code 1933, § 38-1607).

- Former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) was construed as subjecting children to a competency challenge based on the allegation that children did not understand the nature of an oath. Children, like adults, were also subject to a competency challenge on the ground that the children do not have the use of reason because of mental retardation. Sizemore v. State, 262 Ga. 214, 416 S.E.2d 500 (1992) (decided under former O.C.G.A. § 24-9-5).

Determining factor in deciding competency of a witness to testify was not age but rather the ability to understand the nature of an oath. Horton v. State, 35 Ga. App. 493, 133 S.E. 647 (1926) (decided under former Penal Code 1910, § 1038); Young v. State, 72 Ga. App. 811, 35 S.E.2d 321 (1945);(decided under former Code 1933, § 38-1607).

Standard of intelligence required to qualify child as a witness is not that the child be able to define the meaning of an oath, nor that the child understand the process under which the oath is administered, but rather that the child know and appreciate the fact that as a witness the child assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as the child may be interrogated on, and that if the child violates the obligation the child is subject to be punished by the court. Jones v. State, 219 Ga. 245, 132 S.E.2d 648 (1963) (decided under former Code 1933, § 38-1607); Smith v. State, 247 Ga. 511, 277 S.E.2d 53 (1981); Alvin v. State, 253 Ga. 740, 325 S.E.2d 143 (1985), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530, 2006 Ga. LEXIS 840 (2006) (decided under former Code 1933, § 38-1607);(decided under former O.C.G.A. § 24-9-5).

- It is enough if children know the mere nature of an oath, regardless of knowledge of the oath's effects, and whether or not the children have such knowledge is to be determined by the court on a preliminary examination. Peterson v. State, 47 Ga. 524, later appeal, 50 Ga. 142 (1873) (decided under former Code 1868, § 3800); Moore v. State, 79 Ga. 498, 5 S.E. 51 (1887); Young v. State, 122 Ga. 725, 50 S.E. 996 (1905) (decided under former Code 1882, § 3856); Beebee v. State, 124 Ga. 775, 53 S.E. 99 (1906); Young v. State, 125 Ga. 584, 54 S.E. 82 (1906) (decided under former Penal Code 1895, § 1012); Richardson v. State, 141 Ga. 782, 82 S.E. 134 (1914); Reece v. State, 155 Ga. 350, 116 S.E. 631 (1923) (decided under former Penal Code 1895, § 1012);(decided under former Penal Code 1895, § 1012);(decided under former Penal Code 1910, § 1038);(decided under former Penal Code 1910, § 1038).

- Understanding the truth was one element of understanding the nature of an oath, and as such, subsection (b) of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) excepted a child from a competency challenge brought on such basis. Norton v. State, 263 Ga. 448, 435 S.E.2d 30 (1993) (decided under former O.C.G.A. § 24-9-5); Jeffries v. State, 272 Ga. 510, 530 S.E.2d 714 (2000), cert. denied, 531 U.S. 1116, 121 S. Ct. 864, 148 L. Ed. 2d 777 (2001);(decided under former O.C.G.A. § 24-9-5).

- While questions of this character are to be left largely to the discretion of the trial judge, the judge should not hold a child-witness competent when it does not appear that such witness sufficiently understands the nature and obligation of an oath to testify in the case. Pace v. State, 157 Ga. App. 442, 278 S.E.2d 90 (1981) (decided under former Code 1933, § 38-1607).

It was not necessary for child to understand meaning of the word "oath." Pace v. State, 157 Ga. App. 442, 278 S.E.2d 90 (1981) (decided under former Code 1933, § 38-1607); Raborn v. State, 192 Ga. App. 99, 383 S.E.2d 650 (1989);(decided under former O.C.G.A. § 24-9-5).

It is not necessary that a child understand the penalties for perjury in order for the trial court to rule the child competent to testify. Hill v. State, 251 Ga. 430, 306 S.E.2d 653 (1983) (decided under former O.C.G.A. § 24-9-5).

Age not determinative of competency as a witness. Johnson v. State, 146 Ga. 190, 91 S.E. 42 (1916) (decided under former Penal Code 1910, § 1038).

Capacity to commit crime not determinative of competency as a witness. Johnson v. State, 61 Ga. 35 (1878) (decided under former Code 1873, § 3856).

- Record contained sufficient evidence of indicia of reliability when the two girls, who were 12 and 10 years old, were interviewed separately on at least two different occasions, their statements were consistent with each other over time, the state's witnesses were all professionals trained in interviewing victims of child abuse without asking leading questions, and all three considered the girls credible. Gibby v. State, 213 Ga. App. 20, 443 S.E.2d 852 (1994) (decided under former O.C.G.A. § 24-9-5).

Failure of trial court to conduct examination on the issue of whether the witness understands the nature of an oath is reversible error if the witness is under 14 years of age. Young v. State, 122 Ga. 725, 50 S.E. 996 (1905) (decided under former Civil Code 1895, §§ 5267, 5276, 5277, 5278); Bennett v. State, 145 Ga. App. 56, 243 S.E.2d 265 (1978);(decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

- When the competency of a child is questioned, the better practice is for the court to make, or cause to be made, a preliminary examination of the child, for the purpose of testing the child's competency; but the failure of the court to do so will not be reversible error since it appears that the witness was fully examined on this point in the presence of the jury during examination on the main issue. Webb v. State, 7 Ga. App. 35, 66 S.E. 27 (1909) (decided under former Civil Code 1895, §§ 5267, 5276, 5277, 5278).

When preliminary examination of a 12-year-old witness was made and showed that the witness knew what it was to swear to tell the truth, understood the object of testifying, and the consequences of telling the truth and of telling a lie, the court properly held that the witness was competent. Central of Ga. Ry. v. Skandamis, 40 Ga. App. 78, 149 S.E. 60 (1929) (decided under former Civil Code 1910, §§ 5856, 5865, 5866, 5867).

When each child testified that each child knew the meaning of an oath, the child's belief in God, that it was wrong to lie, and the child would tell the truth, the fact-finder and the district attorney could decide such statements were sufficient to establish the child understood the nature of the child's oath. Bearden v. State, 159 Ga. App. 892, 285 S.E.2d 606 (1981) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

- When the principal state's witness against a defendant is a child and on examination by the court to determine the child's competency to testify stated the child knew what it meant to tell a lie and that the child was supposed to tell the truth, such examination was sufficient to determine whether the child understood the nature of an oath as required by law. Turpin v. State, 121 Ga. App. 294, 173 S.E.2d 455 (1970) (decided under former Code 1933, § 38-1607); Decker v. State, 139 Ga. App. 707, 229 S.E.2d 520 (1976);(decided under former Code 1933, § 38-1607).

Since each child testified that the child knew the meaning of an oath, the child's belief in God, that it was wrong to lie, and that the child would tell the truth, the fact-finder and the district attorney could decide such statements were sufficient to establish the child understood the nature of the child's oath. Bearden v. State, 159 Ga. App. 892, 285 S.E.2d 606 (1981) (decided under former Code 1933, § 38-1607).

When the record revealed that, during the trial the prosecuting attorney asked the victim, nearly nine years old, a series of questions, the answers to which clearly demonstrated that the child understood both the difference between truth and falsehood and the importance of telling only the truth, and the record further revealed that the defendant's counsel failed to question the witness following the examination by the state, or to object at that time on competency grounds, counsel's conduct amounted to a waiver of the right to raise the issue of the witness's competency on appeal. Wood v. State, 195 Ga. App. 424, 393 S.E.2d 720 (1990) (decided under former O.C.G.A. § 24-9-5).

Since the trial court examined each of three juvenile witnesses at the beginning of his or her testimony to ascertain that the child knew the difference between telling the truth and telling a lie and understood why telling the truth was better than telling a falsehood, and obtained from each witness a promise to tell the truth in response to questions from counsel, it was not an abuse of discretion to allow the children to testify. Carter v. State, 195 Ga. App. 489, 393 S.E.2d 746 (1990) (decided under former O.C.G.A. § 24-9-5).

Since the 15-year-old victim of a sexual abuse testified at trial that the victim knew it was bad to tell a lie, that the victim would be punished if the victim did so and that the victim also understood the importance of telling the truth, the trial court did not abuse the court's discretion in refusing to strike the victim's testimony. Lott v. State, 206 Ga. App. 886, 426 S.E.2d 667 (1992) (decided under former O.C.G.A. § 24-9-5).

Defense counsel was not ineffective for falling to challenge the competency of child witnesses because both victims were asked to demonstrate their understanding of the difference between the truth and a lie and both stated that they would tell the truth; the defendant gave no basis upon which, had defense counsel challenged their competency, the trial court would have ruled the children incompetent to testify, and defense counsel was not required to make a meritless objection. Vaughn v. State, 307 Ga. App. 754, 706 S.E.2d 137 (2011) (decided under former O.C.G.A. § 24-9-5).

- Child over 14 is presumed competent to testify, but to hold that this presumption is so conclusive that the court is inhibited from examining the witness on this point unless objection has been specifically made on one of the grounds stated in the former statute would be to circumscribe the authority of the court to elicit the truth, and would seriously impede the administration of justice. Schamroth v. State, 84 Ga. App. 580, 66 S.E.2d 413 (1951) (decided under former Code 1933, § 38-1607).

- It is left to sound discretion of trial court to determine whether or not a child of tender years is a competent witness; and when the court examines a child as to the child's understanding of the nature of an oath and decides that the child is competent to testify, this court will not interfere, if it does not appear that such discretion has been manifestly abused. Gordon v. State, 186 Ga. 615, 198 S.E. 678 (1938) (decided under former Code 1933, § 38-1607); Young v. State, 72 Ga. App. 811, 35 S.E.2d 321 (1945); Russell v. State, 83 Ga. App. 841, 65 S.E.2d 264 (1951) (decided under former Code 1933, § 38-1607); Middleton v. State, 194 Ga. App. 815, 392 S.E.2d 293 (1990);(decided under former Code 1933, § 38-1607);(decided under former O.C.G.A. § 24-9-5).

Competency of a child as a witness is within the sound discretion of the court, and the court's ruling will not be disturbed unless there is a manifest abuse of discretion. Adams v. State, 166 Ga. App. 807, 305 S.E.2d 651 (1983) (decided under former O.C.G.A. § 24-9-5).

Trial court had sound discretion to determine whether a child was competent to testify. Hill v. State, 251 Ga. 430, 306 S.E.2d 653 (1983) (decided under former O.C.G.A. § 24-9-5).

Once a child's competency has been thoroughly tested in court, it is within the sound discretion of the trial court whether or not to rule the child competent to testify as a witness. Pope v. State, 167 Ga. App. 328, 306 S.E.2d 326 (1983) (decided under former O.C.G.A. § 24-9-5).

- When an examination by the court shows that the child has no knowledge of the nature of an oath, it is error to permit the child to testify over proper objection. Horton v. State, 35 Ga. App. 493, 133 S.E. 647 (1926) (decided under former Penal Code 1910, § 1038).

- While the decision of whether a child, or "infant," is competent to testify is one made in the sound discretion of the judge, based upon the capacity of the child to know the nature of the oath rather than upon the child's years, the admission in evidence of an infant's admission against interest must be very carefully scanned because of the child's immaturity and the deleterious effect such admissions would have. Howard v. Hall, 112 Ga. App. 247, 145 S.E.2d 70 (1965) (decided under former Code 1933, §§ 38-1601, 38-1607, 38-1610, 38-1611, 38-1612).

- Since the question of the competency of a victim's ten-year-old brother was one of law for the trial court to determine, the court did not err in refusing to give in charge to the jury the requested language contained in former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) which was relevant only to that issue. Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981) (decided under former Code 1933, § 38-1607).

Inconsistency in a child's testimony did not render the child incompetent to testify, but went to the child's credibility as a witness. Pendergrass v. State, 168 Ga. App. 190, 308 S.E.2d 585 (1983) (decided under former O.C.G.A. § 24-9-5).

When a four-year-old victim expressed the victim's understanding of the difference between the truth and a lie and of the importance of telling the truth, expressed a fear of punishment if the victim did not tell the truth, and stated that the victim would tell the truth, there was no abuse of the trial court's discretion in the court's determination that the child was competent to testify, even though there may have been some inconsistency in the child's responses. Hutton v. State, 192 Ga. App. 239, 384 S.E.2d 446 (1989) (decided under former O.C.G.A. § 24-9-5).

Child witness's unresponsiveness to a number of questions as put by the defendant did not constitute a deprivation of defendant's constitutional confrontation right so as to require that the witness's out-of-court statements be stricken since the defendant was not denied the right to a thorough and sifting cross-examination of a witness who appeared to answer as well as the witness was capable of answering. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18 (1990) (decided under former O.C.G.A. § 24-9-5).

Defendant's right to confront and cross-examine a child witness was protected in spite of the child's unresponsiveness on cross-examination as to the merits of the case brought against the defendant; the child's unresponsiveness did not preclude the defendant from thoroughly cross-examining the child as to the veracity of hearsay statements made against the defendant's interests by the child's parents and the caseworker. Byrd v. State, 204 Ga. App. 252, 419 S.E.2d 111 (1992) (decided under former O.C.G.A. § 24-9-5).

Trial court did not err by allowing the victim, a five-year-old child, to testify since although the child was unable to define the meaning of an oath or of the truth, it was demonstrated that the child appreciated the difference between the truth and a lie and that the child knew the child was obligated to tell the truth on the witness stand. Akers v. State, 179 Ga. App. 529, 346 S.E.2d 861 (1986) (decided under former O.C.G.A. § 24-9-7).

Fact that five-year-old victim may have testified inconsistently did not render the victim incompetent to testify as a matter of law. Akers v. State, 179 Ga. App. 529, 346 S.E.2d 861 (1986) (decided under former O.C.G.A. § 24-9-7).

Court did not err in finding nine-year-old child competent to testify, since when the child testified as to the child's grade in school, the child's teacher's name, that it was good to tell the truth and bad to tell a lie, that the child would get a whipping if the child told a lie, and that the child was going to tell the truth in court. Hester v. State, 187 Ga. App. 873, 371 S.E.2d 684 (1988) (decided under former O.C.G.A. § 24-9-7).

Trial court did not abuse the court's discretion in ruling competent to testify children who witnessed a crime since the children testified that to tell the truth means "to tell what really happened" as opposed to "making something up," and also testified that the children understand the significance of their oath to tell the truth while testifying in court and that if the children lied they would "get in big trouble." Hill v. State, 251 Ga. 430, 306 S.E.2d 653 (1983) (decided under former O.C.G.A. § 24-9-5).

When a child was examined at length by the court and by counsel, and the court found that the child was inattentive and not responsive, and also found that there were inconsistencies in the testimony of the child, there was no abuse of discretion in the court refusing to allow the child to testify. Batton v. State, 260 Ga. 127, 391 S.E.2d 914 (1990) (decided under former O.C.G.A. § 24-9-5).

After two videotapes of interviews with a child were showed to a jury, the child was called as the court's witness and testified similarly, and the child was examined by all parties, there was no abuse of the court's discretion in finding the child qualified to testify, nor in admitting the videotapes. Frazier v. State, 195 Ga. App. 109, 393 S.E.2d 262 (1990)(Trial held prior to April 19, 1989).(decided under former O.C.G.A. § 24-9-5).

For illustrations of preliminary examination to test a child's competency, see Minton v. State, 99 Ga. 254, 25 S.E. 626 (1896) (decided under former Penal Code 1895, § 1012); Gaines v. State, 99 Ga. 703, 26 S.E. 760 (1896); Miller v. State, 109 Ga. 512, 35 S.E. 152 (1900) (decided under former Penal Code 1895, § 1012);(decided under former Penal Code 1895, § 1012).

- Although a child witness said the witness did not know the meaning of the worth "oath," there was sufficient evidence, including testimony on direct and cross-examination that the witness knew right from wrong and that the witness had to tell the truth when the witness was in court, to determine that the child met the standard of intelligence required to qualify the child as a witness. Maynard v. State, 171 Ga. App. 605, 320 S.E.2d 806 (1984) (decided under former O.C.G.A. § 24-9-7).

Trial court did not err by not conducting a preliminary hearing before determining that two minor witnesses were competent to testify since the record shows that one witness was seventeen years old and the other was fourteen. Johnson v. State, 195 Ga. App. 385, 393 S.E.2d 712 (1990) (decided under former O.C.G.A. § 24-9-7).

- When a child of five years was not shown to possess sufficient intelligence to understand the nature of an oath or the penalty for the oath's violation, it was held that the court erred in permitting the witness to testify. Edwards v. State, 162 Ga. 204, 132 S.E. 892 (1926) (decided under former Civil Code 1910, §§ 5856, 5865, 5866, 5867).

- Fourteen-year-old witness suffered from hyperactivity, seizures, and schizophrenia, but took medication for these problems; since the trial judge questioned this witness outside of the jury's presence about the witness's understanding of the difference between the truth and a lie, and there was no basis to inquire further into the witness's competency, allowing the witness to testify was not an abuse of discretion. Simmons v. State, 251 Ga. App. 682, 555 S.E.2d 59 (2001) (decided under former O.C.G.A. § 24-9-7).

- See Johnson v. State, 76 Ga. 76 (1885) (child of six) (decided under former Code 1882, § 3856); Marshall v. State, 74 Ga. 26 (1884) (child of seven) (decided under former Code 1882, § 3856); Minton v. State, 99 Ga. 254, 25 S.E. 626 (1896) (child of eight) (decided under former Penal Code 1895, § 1012); Hicks v. State, 105 Ga. 627, 31 S.E. 579 (1898) (child of ten) (decided under former Penal Code 1895, § 1012); Central of Ga. Ry. v. Skandamis, 40 Ga. App. 78, 149 S.E. 60 (1929) (child of twelve) (decided under former Civil Code 1910, § 5862); Thurmond v. State, 220 Ga. 227, 138 S.E.2d 372 (1964) (child of eight) (decided under former Code 1933, § 38-1607); Perryman v. State, 244 Ga. 720, 261 S.E.2d 588 (1979) (victim's nine-year-old daughter) (decided under former Code 1933, § 38-1607); Brown v. State, 167 Ga. App. 245, 306 S.E.2d 361 (1983) (child of seven) (decided under former O.C.G.A. § 24-9-5); Aleywine v. State, 169 Ga. App. 805, 315 S.E.2d 35 (1984) (child of eight) (decided under former O.C.G.A. § 24-9-5); Westbrook v. State, 186 Ga. App. 493, 368 S.E.2d 131, cert. denied, 186 Ga. App. 919, 368 S.E.2d 131 (1988) (child of five) (decided under former O.C.G.A. § 24-9-5); Syfrett v. State, 210 Ga. App. 185, 435 S.E.2d 470 (1993) (child of nine) (decided under former O.C.G.A. § 24-9-5).

- Testimony of a child witness who, in response to questioning by the state, demonstrated that the child was aware that the child was under an obligation to tell the truth and could have been punished for not doing so, and who was shown to be competent, was properly admitted although the child was not sworn, when, after the preliminary questioning by the state, the defendant failed to request that the child be formally sworn and did not object to the child's testifying. Hilson v. State, 204 Ga. App. 200, 418 S.E.2d 784 (1992) (decided under former O.C.G.A. § 24-9-5).

- In an action wherein two parents were found to have deprived an adopted child due to one parent's sexual abuse of the child and the other parent's failure to protect the child from such abuse, the juvenile court did not abuse the court's discretion by allowing the testimony of a forensic interviewer regarding statements made by the child as the Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), permitted such testimony, despite the parents' challenges to the competency of the child. In the Interest of B.H., 295 Ga. App. 297, 671 S.E.2d 303 (2008) (decided under former O.C.G.A. § 24-9-5).

Any apparently inconsistent testimony presented by children does not render such children incompetent to testify as a matter of law, but is a matter for consideration by the trial court in making the court's determination of competency and by the jury in determining the credibility of the witnesses. Thomas v. State, 168 Ga. App. 587, 309 S.E.2d 881 (1983) (decided under former O.C.G.A. § 24-9-7).

Inconsistency in a child's testimony does not render the child incompetent to testify, nor is it necessary for a child to understand the meaning of the word "oath." Sprayberry v. State, 174 Ga. App. 574, 330 S.E.2d 731 (1985) (decided under former O.C.G.A. § 24-9-7).

When the trial court used suggested questions from the Criminal Benchbook for Georgia Superior Courts (p. 166) to examine a seven-year-old as to the child's understanding of the nature of an oath and the necessity for telling the truth and found the child competent, there was no abuse of discretion. Lancaster v. State, 250 Ga. 871, 301 S.E.2d 882 (1983) (decided under former O.C.G.A. § 24-9-7).

- When competency of victim's ten-year-old brother has been determined as a matter of law by the trial court, there is no error in the trial court's refusal to charge the jury that testimony of a child of such tender age should be corroborated by other testimony. Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981) (decided under former O.C.G.A. § 24-9-7).

- Thrust of the child witness statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), was to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child's accusations. If a child, who had reported child molestation to an adult permitted to testify to the out-of-court statement at trial, was incapable of reiterating the accusation at trial or was unresponsive or evasive during cross-examination, the jury must decide the child's credibility. Jones v. State, 200 Ga. App. 103, 407 S.E.2d 85 (1991) (decided under former O.C.G.A. § 24-9-5).

Former rules applicable to idiots and lunatics were analogous to those applicable to children. Langston v. State, 153 Ga. 127, 111 S.E. 561 (1922) (decided under former Penal Code 1910, § 1038).

- There was no presumption that the declarant was so bereft of reason as to forbid the reception of evidence concerning the declarant's declarations, although it was admitted that before the making thereof the declarant had been adjudged insane and committed to an asylum. Fountain v. McCallum, 194 Ga. 269, 21 S.E.2d 610 (1942) (decided under former Code 1933, § 38-1607).

- Person who has been adjudged insane is not, in all cases, incompetent as a witness. The person's testimony is admissible if the person has sufficient understanding to apprehend the obligations of an oath and to be capable of giving a correct account of the matters the person has seen or heard in reference to the questions at issue; and whether the person has that understanding is a question to be determined in each case, the weight to be given to the person's testimony being finally a question for the jury. Cuesta v. Goldsmith, 1 Ga. App. 48, 57 S.E. 983 (1907) (decided under former Civil Code 1895, § 5273); Watkins v. State, 19 Ga. App. 234, 91 S.E. 284 (1917);(decided under former Penal Code 1910, § 1038).

- One may be medically or metaphysically insane, yet be capable in law of making a contract, a will, or of giving competent testimony in the trial of a case; from a legal standpoint there can be no satisfactory definition of insanity, but each case must be determined from the case's own peculiar facts. The law adopts as a general standard: the ability of the witness to understand the obligation of an oath and the ability to give a correct account of the matters the witness has seen or heard in reference to the questions at issue; the fact that a person has previously been adjudged insane upon an inquisition is by no means conclusive that the person is incompetent to testify. Bonner v. State, 59 Ga. App. 737, 1 S.E.2d 768 (1939) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, 38-1612).

- Trial court did not abuse the court's discretion in admitting the testimony statements of a sexual abuse victim in a dissociative state because their nonvolitional nature rendered statements made while in such a state inherently more reliable than comparable statements made in a hypnotic trance. Moreover, the testimony indicated that the witness was sufficiently competent to understand the witness's obligation to tell the truth, and that in a dissociative state, the witness could remember what happened to the witness previously in a dissociative state and truthfully relate this material evidence to the jury. Dorsey v. State, 206 Ga. App. 709, 426 S.E.2d 224 (1992) (decided under former O.C.G.A. § 24-9-7).

- Mere fact that the declarant had been adjudged insane and placed in a lunatic asylum previously to the time that the declarant is alleged to have been the declarant, the declarant at that time not being in the asylum, was not in itself a reason why the testimony should have been excluded. Fountain v. McCallum, 194 Ga. 269, 21 S.E.2d 610 (1942) (decided under former Code 1933, § 38-1607).

That the chief witness for the state had been adjudicated insane in another state prior to the commission of the offense charged and testified about does not have the effect of denying probative value to the testimony of such witness: such a person is not incompetent to testify and the proof of the commitment for insanity goes to the credit of the witness only. Saxe v. State, 112 Ga. App. 804, 146 S.E.2d 376 (1965) (decided under former Code 1933, § 38-1603).

- Witness had been previously adjudged insane, and the jury was authorized to find that this mental state still existed, and to reject the witness's testimony for that reason. Harris v. Folsom, 17 Ga. App. 676, 87 S.E. 1090 (1916) (decided under former Civil Code 1910, § 5862).

- Witness having been examined on interrogatories by commission duly issued, the witness was, prima facie, mentally competent to testify, and evidence subsequently taken tending to show that the witness was insane when examined, was for consideration by the jury under proper instructions from the court, and not for final adjudication by the judge presiding, there being also testimony in favor of insanity. Formby v. Wood, 19 Ga. 581 (1856) (decided under former law); Mayor of Gainesville v. Caldwell, 81 Ga. 76, 7 S.E. 99 (1888);(decided under former Code 188, § 3856).

- Once an objection was interposed to the calling of a witness to testify as being incompetent on the ground of having been adjudicated insane, the trial judge must conduct a preliminary examination of the witness and then rule upon the witness's competency. Bryant v. State, 236 Ga. 790, 225 S.E.2d 309 (1976) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, and 38-1612).

- When a defendant objected to admitting a statement made to police implicating the defendant in a murder for reason that the defendant was insane at the time the defendant made the statement, but offered no evidence concurrent with the objection to prove insanity, the trial court properly admitted the statement because no motion was made to strike the statement following the statement's introduction into evidence. Kimbell v. State, 252 Ga. 65, 311 S.E.2d 465 (1984) (decided under former O.C.G.A. § 24-9-5).

- See Ray v. State, 32 Ga. App. 513, 124 S.E. 57 (1924) (woman 21 years old declared incompetent in bastardy proceeding) (decided under former Penal Code 1910, § 1038); Ravenel v. State, 153 Ga. 130, 111 S.E. 643 (1922) (female victim in rape case held competent) (decided under former Penal Code 1910, § 1038).

Retarded Persons

Witness somewhat retarded.

- Though there was evidence that the witness was "somewhat retarded," when in response to questions by the court the witness testified that the witness went through the eighth grade in school, attended church and Sunday school, and knew that it was right to tell the truth, the trial court was correct in determining that the witness was competent to testify. Lee v. State, 108 Ga. App. 97, 132 S.E.2d 107 (1963) (decided under former Code 1933, § 38-1607).

- After the 22-year-old retarded victim indicated the victim knew how to tell the truth and the victim's mother and sister testified the victim knew the difference between right and wrong, such evidence was sufficient to show that the victim had an appreciation for the truth and could testify. Dumas v. State, 239 Ga. App. 210, 521 S.E.2d 108 (1999) (decided under former O.C.G.A. § 24-9-5).

- Defendant's girlfriend, the victim, was not presumed to be incompetent to testify under former O.C.G.A. § 24-9-7 simply because of the victim's mental disability; absent an objection by the defendant, it was not error to allow the victim to testify without first determining the victim's competence. Austin v. State, 286 Ga. App. 149, 648 S.E.2d 414, cert. denied, No. SO7C1698, 2007 Ga. LEXIS 687 (Ga. 2007) (decided under former O.C.G.A. § 24-9-7).

Application in Other Circumstances

Impeachment at prior trial.

- Fact that a witness for the state had been impeached by the state, as unworthy of belief, in a previous trial of the witness, is not ground for refusing to permit the witness to testify in a present case. Daniel v. State, 118 Ga. App. 370, 163 S.E.2d 863 (1968), cert. denied, 394 U.S. 919, 89 S. Ct. 1193, 22 L. Ed. 2d 453 (1969) (decided under former Code 1933, § 38-1603).

- Former O.C.G.A. § 24-9-1 allowed a party to be a witness for oneself on all relevant issues; but former O.C.G.A. § 24-9-2 created an exception for proceedings "instituted in consequence of adultery," with the result that in such proceedings a party was not competent to testify to that party's or that party's spouse's adultery. Owens v. Owens, 247 Ga. 139, 274 S.E.2d 484 (1981) (decided under former O.C.G.A. §§ 24-9-1 and24-9-2).

- When the judge appointed an auditor to pass upon all questions arising in a case, and authorized the auditor to employ a certified public accountant to assist in examining books, records, and accounts, an accountant who was thereafter so employed, and who had made an examination of books of the plaintiff upon which the defendant relied in part to establish a defense and counterclaim, was not incompetent as a witness to testify as to what the books showed, either because the accountant was employed under authority of the court to assist the auditor, or because the order referring the case to an auditor had been revoked and the objecting party had never had an opportunity to appear before the auditor. Bible v. Somers Constr. Co., 197 Ga. 761, 30 S.E.2d 623 (1944) (decided under former Code 1933, § 38-1603).

- Trial court erred in making a determination that a prospective witness was incompetent to testify based on ex parte statements made by the administrator of the institution where the prospective witness was confined. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, and 38-1612).

- Testimony of a transaction alleged to have been undertaken with the deceased in 1978 should have been admitted because it was not against the interest of the estate of the deceased. Bowens v. Holmes, 262 Ga. 179, 415 S.E.2d 632 (1992) (decided under former O.C.G.A. § 24-9-1).

- Appellee's parents were competent witnesses regarding statements made to the parents by the decedent prior to July 1, 1979 to prove that the decedent contracted to adopt the appellee. Morgan v. Howard, 285 Ga. 512, 678 S.E.2d 882 (2009) (decided under former O.C.G.A. § 24-9-1).

Continuing business relationship did not constitute a "transaction" within the meaning of subsection (b) of former O.C.G.A. § 24-9-1 and thus testimony as to an alleged oral contract made before July 1, 1979 with a party since deceased, which defined the relationship which extended beyond that date, was not admissible under the former dead man's statute. Wilson v. Nichols, 253 Ga. 84, 316 S.E.2d 752 (1984) (decided under former O.C.G.A. § 24-9-1).

Former dead man's statute barred testimony regarding a conversation between plaintiff, plaintiff's mother, and a person since deceased because the plaintiff's claim was "against the interest" of the deceased, i.e., the interest of the deceased's estate. Willis v. Kennedy, 267 Ga. 165, 476 S.E.2d 246 (1996) (decided under former O.C.G.A. § 24-9-1).

Former dead man's statute rendered a witness incompetent to testify as to a conversation with a person since deceased regardless of whether the testimony might be admissible under other rules of evidence. Willis v. Kennedy, 267 Ga. 165, 476 S.E.2d 246 (1996) (decided under former O.C.G.A. § 24-9-1).

Under former Code 1933, § 38-1603, neither plaintiff nor his wife could testify as to promise of a "contract for life" allegedly made to plaintiff and plaintiff's spouse by two deceased officers of defendant corporation. Kitfield v. Henderson, Black & Greene, 231 Ga. App. 130, 498 S.E.2d 537 (1998).

For application of former dead man's statute in action seeking cancellation of deed allegedly obtained by fraud, see McLendon v. Georgia Kaolin Co., 782 F. Supp. 1548 (M.D. Ga. 1992) (decided under former O.C.G.A. § 24-9-1); Garbutt v. Southern Clays, Inc., 894 F. Supp. 456 (M.D. Ga. 1995);(decided under former O.C.G.A. § 24-9-1).

Competency rules apply in adultery cases. Owens v. Owens, 247 Ga. 139, 274 S.E.2d 484 (1981), was no longer applicable in view of the 1982 amendment to former O.C.G.A. § 24-9-2 which eliminated language excepting certain adultery cases from the broad competency rules of former O.C.G.A. § 24-9-1 (see now O.C.G.A. § 24-9-601) ; consequently, in such cases the competency rules of former § 24-9-1 were now applicable. Brown v. Hauser, 249 Ga. 513, 292 S.E.2d 1 (1982) (decided under former O.C.G.A. §§ 24-9-1 and24-9-2).

- When spouse obtained a favorable ruling on motion in limine to suppress evidence as to the spouse's adulterous conduct, and abided by that ruling, but nevertheless such evidence was offered at trial, that spouse was entitled to make an offer of proof as to such allegations. Reno v. Reno, 249 Ga. 855, 295 S.E.2d 94 (1982) (decided under former O.C.G.A. § 24-9-2).

- Question of qualification as expert witness is one of discretion with the trial court judge. Wilkie v. State, 153 Ga. App. 609, 266 S.E.2d 289 (1980) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, and 38-1612).

- Trial court abused the court's discretion in excluding a homeowner's expert witness solely on the basis of the expert's alleged interest in the outcome of the case, and because the trial court's unauthorized preemptive protection of the homeowner's attorney immediately led to the dismissal of the claim for damages for failure to produce any expert evidence of causation, the homeowner did not have a day in court; although the expert indicated that, at the time of the expert's deposition, the expert intended to decide how much to bill the homeowner after the trial, based on the expert's own evaluation of whether the expert testimony was "usable," there was no evidence in the truncated voir dire of the expert that the homeowner's attorney agreed to that scheme or otherwise agreed that the expert's compensation would be contingent on the outcome of the case. Meacham v. Franklin-Heard County Water Auth., 302 Ga. App. 69, 690 S.E.2d 186 (2009), cert. denied, No. S10C0865, 2010 Ga. LEXIS 427 (Ga. 2010) (decided under former O.C.G.A. § 24-9-1).

- Former law required the trial court to determine the competency to testify of a witness who was under the influence of alcohol or other drugs. Geter v. State, 231 Ga. 615, 203 S.E.2d 195 (1974) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611, and 38-1612).

- Evidence that the witness was in a drunken condition when the witness undertook to testify went to the witness's competency, while proof that the witness was drunk on the occasion concerning which the witness testified went only to the witness's credit. Whitus v. State, 222 Ga. 103, 149 S.E.2d 130 (1966) (decided under former Code 1933, § 38-1608).

- Person convicted of a felony is a competent witness; the fact of the person's conviction only goes to the person's credit. Bowers v. Southern Ry., 10 Ga. App. 367, 73 S.E. 677 (1912) (decided under former Civil Code 1910, §§ 5858 and 5859); Lewis v. State, 243 Ga. 443, 254 S.E.2d 830 (1979);(decided under former Code 1933, § 38-1603).

- Competency of the witness to testify as to market value is for the court. Williams v. Colonial Pipeline Co., 110 Ga. App. 824, 140 S.E.2d 150 (1964) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611 and 38-1612).

- When an attorney-in-fact sought to enjoin the attorney-in-fact's siblings from enforcing a revocation of their parent's durable health care power of attorney, the trial court did not err in determining that the parent, who had Alzheimer's disease, was not competent, as well as in refusing to allow the siblings to present the ailing parent as a witness, given the evidence of the parent's seriously impaired mental capacity. Luther v. Luther, 289 Ga. App. 428, 657 S.E.2d 574 (2008), cert. denied, No. S08C0912, 2008 Ga. LEXIS 520 (Ga. 2008) (decided under former O.C.G.A. § 24-9-7).

- Trial court did not err by refusing to allow the defendant to learn the identity of the confidential informant on grounds that identity was the defendant's sole defense, and the confidential informant was the one who "fingered" defendant as a drug dealer, given the state's interest in retaining the informant's confidentiality because of other, ongoing investigations and the fact that the evidence as to defendant's identity was overwhelming in that two police officers positively identified the defendant. Wilson v. State, 191 Ga. App. 833, 383 S.E.2d 197 (1989) (decided under former O.C.G.A. § 24-9-7).

- In the absence of a written request, the trial judge does not ordinarily charge the jury concerning the witness's competency, and it is never error for the judge to omit to instruct the jury concerning the credibility of a witness. Whitus v. State, 222 Ga. 103, 149 S.E.2d 130 (1966) (decided under former Code 1933, §§ 38-1601, 38-1610, 38-1611 and 38-1612).

- Trial court did not err by allowing the victim to testify in a prosecution for aggravated assault, notwithstanding the fact that a probate judge had appointed a guardian for the victim's person and property after the victim's injuries, since the trial court questioned the victim outside the presence of the jury and determined that the victim was competent to testify. McClain v. State, 248 Ga. App. 338, 545 S.E.2d 926 (2001) (decided under former O.C.G.A. § 24-9-7).

- See Smith v. State, 249 Ga. App. 39, 547 S.E.2d 598 (2001) (decided under former O.C.G.A. § 24-9-7).

RESEARCH REFERENCES

Am. Jur. 2d.

- 81 Am. Jur. 2d, Witnesses, §§ 78 et seq., 82, 86 et seq., 160 et seq., 180 et seq., 195, 203, 204, 681 et seq.

- 98 C.J.S. (Rev), Witnesses, §§ 92, 108 et seq., 102, 124 et seq., 132 et seq., 215, 216, 238, 245, 270, 290, 447.

- Exhibition of child in criminal prosecution, or civil action, for seduction, 1 A.L.R. 622.

Competency of hospital physician or attendant to testify as to condition of patient, 22 A.L.R. 1217.

Mental condition as affecting competency of witness, 26 A.L.R. 1491; 148 A.L.R. 1140.

Competency or qualification of witness who had not seen or examined property before fire to testify as to damage by fire, 33 A.L.R. 297.

Competency of witness to testify as to his own age, 39 A.L.R. 376.

Insanity of witness as ground of writ of error coram nobis, 43 A.L.R. 1387.

Admissibility and probative force, on issue as to mental condition, of evidence that one had been adjudged incompetent or insane, or had been confined in insane asylum, 68 A.L.R. 1309.

Infant's admissions out of court as evidence in civil cases, 89 A.L.R. 708; 12 A.L.R.3d 1051.

May question as to qualification or competency of witness be raised by or upon motion for nonsuit or for directed verdict, absent objection on that ground when testimony was given, 93 A.L.R. 788.

Refusal to permit an otherwise competent witness to take witness stand because of mental or physical condition not amounting to unsoundness of mind, 97 A.L.R. 893.

Competency of testimony as to one's mental condition, based upon handwriting, 103 A.L.R. 900.

Judge as a witness in a cause on trial before him, 157 A.L.R. 315.

Competency of child as witness as affected by fact that his prosecution for perjury is prohibited, 159 A.L.R. 1102.

Review on appeal of decision of trial court as to qualification or competency of expert witnesses, 166 A.L.R. 1067.

Conviction in another jurisdiction as disqualifying witness, 2 A.L.R.2d 579.

Right of one against whom testimony is offered to invoke privilege of communication between others, 2 A.L.R.2d 645.

Testimony of children as to grounds of divorce of their parents, 2 A.L.R.2d 1329.

Competence, as against principal, of statements by agent to prove scope, as distinguished from fact, of agency, 3 A.L.R.2d 598.

Effect of voluntary statements damaging to accused, not proper subject of testimony, uttered by testifying police or peace officer, 8 A.L.R.2d 1013.

Alleged incompetent as witness in lunacy inquisition, 22 A.L.R.2d 756.

Admissibility of deposition of child of tender years, 30 A.L.R.2d 771.

New trial in criminal case because of newly discovered evidence as to sanity of prosecution witness, 49 A.L.R.2d 1247.

Court's witnesses (other than expert) in criminal prosecution, 67 A.L.R.2d 538.

Competency of young child as witness in civil case, 81 A.L.R.2d 386.

Admissibility of evidence of train speed prior to grade-crossing accident, and competency of witness to testify thereto, 83 A.L.R.2d 1329.

Declarant's age as affecting admissibility as res gestae, 83 A.L.R.2d 1368; 15 A.L.R.4th 1043.

Competency of physician or surgeon of school of practice other than that to which defendant belongs to testify in malpractice case, 85 A.L.R.2d 1022.

Validity of indictment where grand jury heard incompetent witness, 39 A.L.R.3d 1064.

Cross-examination of witness as to his mental state or condition, to impeach competency or credibility, 44 A.L.R.3d 1203.

Rule as regards competency of husband or wife to testify as to nonaccess, 49 A.L.R.3d 212.

Power of court to control evidence or witnesses going before grand jury, 52 A.L.R.3d 1316.

Judge as witness in cause not on trial before him, 86 A.L.R.3d 633.

Trial jurors as witnesses in same state court or related case, 86 A.L.R.3d 781.

Conviction by court-martial as proper subject of cross-examination for impeachment purposes, 7 A.L.R.4th 468.

Court's witnesses (other than expert) in state criminal prosecution, 16 A.L.R.4th 352.

Appealability of state criminal court order requiring witness other than accused to undergo psychiatric examination, 17 A.L.R.4th 867.

Propriety and prejudicial effect of prosecution's calling as witness, to extract claim of self-incrimination privilege, one involved in offense charged against accused, 19 A.L.R.4th 368.

Attorney as witness for client in civil proceedings - Modern state cases, 35 A.L.R.4th 810.

Deaf-mute as witness, 50 A.L.R.4th 1188.

Insured-insurer communications as privileged, 55 A.L.R.4th 336.

Witnesses: child competency statutes, 60 A.L.R.4th 369.

Compelling testimony of opponent's expert in state court, 66 A.L.R.4th 213.

Sufficiency of evidence that witness in criminal case was hypnotized, for purposes of determining admissibility of testimony given under hypnosis or of hypnotically enhanced testimony, 16 A.L.R.5th 841.

Propriety of using prior conviction for drug dealing to impeach witness in criminal trial, 37 A.L.R.5th 319.

Admissibility of expert testimony regarding questions of domestic law, 66 A.L.R.5th 135.

Validity, construction, and application of child hearsay statutes, 71 A.L.R.5th 637.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.

Calling and interrogation of witnesses by court under Rule 614 of the Federal Rules of Evidence, 53 A.L.R. Fed. 498.