I concur in the judgment of reversal and in the reasoning upon which the presiding justice concludes that a reversal should result; but as the question before us is one of great importance, I deem it proper to point out other reasons which, in my opinion, show that the trial judge abused the discretion confided to him under the law regulating the competency of children of tender years to testify.
[7] It is to be observed that, under the terms of subdivision 2, section 1880, of the Code of Civil Procedure, there are two separate tests for a determination of the question whether children under ten years of age may be witnesses. They cannot testify if it appears, first, that they are incapable of receiving just impressions of the facts respecting which they are examined; second, that they are incapable of relating those facts truly. It is worthy of *Page 777 remark, however, that each of these tests must be satisfied through a medium which is akin to one of them; that is, through the ability of the child to narrate, considering also such physical manifestations as may accompany narration, gestures, play of features, and the other indicia which will always aid in determining mental dullness or alertness. It is the existence of these latter phenomena which principally gives rise to the rule that the competency of children to be witnesses is to be left to the discretion of the trial judge; a rule founded, manifestly, upon sense, and one which, it must be conceded, renders it difficult for a court of review to say, in a given case, that the discretion has been abused.
It is to be noted, also, that, while both tests are to be ascertained through an identical medium, they relate to different periods of time: the first, to the date of the occurrences which are under inquiry, for it is then that "just impressions" are to be received; the second, to the date upon which the child is offered as a witness, for it is then that the capacity for "relating truly" is to be ascertained. Therefore, if a given child shall have made narration of the facts of an occurrence at a time less remote from the time of their happening than is the date of the trial, that narration would be expected better to indicate whether he had received a just impression of the occurrences than would his narration, or his examination on his voir dire, at the trial. On the other hand, his examination at the trial would furnish the guide for a determination of the ability truly to relate, provided that a comparison of that examination with the earlier narration would furnish a proper aid to the ascertainment of that test. It is to be remembered that such a comparison is to be made by the court, for the purpose of determining whether the child is competent to be a witness, thus presenting a very different question from the one requiring the jury to determine, by comparison, whether statements made in an earlier narration are so variant from his testimony, after he has become a witness, as to make that testimony unworthy of credence.
[8] Taking these principles as a just basis upon which to proceed, if they constitute such a basis, what is the situation in the instant case? The preliminary examination of appellant was held ten days after the alleged occurrences from which sprang the charge against him, and the testimony *Page 778 of the child on that examination, set forth in the opinion of the presiding justice, was offered for the purpose of impeaching him as a witness. Aside from that purpose, however, it should have been valuable to the court as solving the question whether the boy was competent as a witness, upon the score of his incapacity, ten days before, to receive a "just impression" of the occurrences of the day, if there were any in which appellant was concerned. Conceding to the trial judge the advantage possessed by him of observing the child, his gestures, his manner, and his expression, it appears to me that his statements made to the magistrate demonstrate that he was disqualified as a witness under the first test provided by the statute. Considering the nature of his answers, it makes no difference what was his demeanor before the trial judge during his examination on his voir dire, more than three months later. It is manifest to me that his answers before the magistrate show that his mind was incapable of receiving a just impression of anything that occurred between him and appellant, whatever may have been the nature of the occurrence. He was questioned and requestioned and questioned yet further, and nothing came of it. He was asked ten times, in slightly variant forms, whether appellant had ever done anything to him. The first time he answered with a question to the magistrate, "What is your name?" At all other times, up to and including the eighth, he answered no. The ninth time he answered yes and the tenth he returned again to no. Immediately after he answered yes to the ninth putting of the question, the following transpired: "(By the Court): Q. When did you see him? Do you know when you saw this man before? A. In the garage. Q. By Mr. Fitts: What happened in the garage? What took place there? A. He didn't do anything in there." The tenth putting of the question already mentioned then came in this form: "Did he do anything at any place?" The answer, as already stated, was no. The child was asked five times if he knew appellant. The first three times he answered yes. The fourth putting of the question, with its answer, are thus shown: "Q. Do you want to walk over there and take a look at him? Come on, you and I, and we will walk over there, that is a good boy. [The court and witness approach the defendant.] Now, then, is this the man, do you know *Page 779 him? A. No." To the fifth statement of the question he also answered no. Mr. Fitts then put a kindred question: "Did you ever see him before?" The boy answered no.
Upon this evidence it is to be wondered how the committing magistrate ever bound appellant over, as the other evidence at the trial was very slight and of no value whatever without the testimony of the child, and that testimony alone must have been taken to establish the corpus delicti. But with the action of the justice of the peace we have nothing to do; and I reiterate the statement that the answers of the boy at the preliminary examination show that he was not qualified as a witness under the first test imposed by the statute.
In developing my views upon the subject of the second test it is necessary to state a few words of the boy's testimony at the trial. He says that appellant unbuttoned one button of his clothes and that "he sucked on my hand." This rather cryptic expression is explained by the testimony of the child's father to the effect that the child had been taught to employ the word "hand" in referring to the male organ of generation. The boy also testified that the crime was committed in a garage; and the circumstance is mentioned, with the reminder that he was questioned at the preliminary examination as to what happened in a garage, for the purpose of indicating that on both occasions he had the same event and the same place in mind. A comparison of the two narratives will indicate an amazing difference between them. The variance cannot be accounted for upon the theory that the child's powers of narration had so surprisingly increased during the three months and a half which elapsed between the two events. To what, then, was the change owing? We have the key in certain of the observations of the presiding justice. He says: "Meanwhile the boy undoubtedly heard his parents talk about the case and its distressing facts. The force of suggestion, always strong, is particularly potent with the impressionable and plastic mind of childhood. . . the repetition of supposed facts in the presence of a child often creates a mental impression or concept that has no objective reality in any actually existing fact." The great change in the child's story and in his manner of telling itmust have been occasioned through the process thus so graphically described. At the *Page 780 preliminary examination the boy had no story. A quarter of a year later he has one so fully developed that it serves to establish the corpus delicti and to fasten a conviction upon the appellant.
[9] The second test prescribed by the statute must contemplate that a child's ability truly "to relate" is to depend upon his natural power of narration, exercised through his unprompted relation of facts as to which he has previously acquired a "just impression," and not upon a factitious ability to recite what he may have heard, with frequent repetition, from others, whether their utterances were spoken with design or in complete innocence; and there is no reason to suppose that anything apart from the latter was the case in the present instance.
Conceding that the child was at all times honest, if the idea of dishonesty, in the strict sense, can be thought of in contemplating a child of such tender years in connection with such a matter; conceding that he told the truth on both occasions, as he understood truth, and there appears no reason to assert the contrary; conceding that the testimony before the magistrate did not impeach the witness, — conceding all these things, it is impossible to understand how the child could answer as he did before the magistrate, could then answer as he did at the trial, and yet be said to meet the second requirement of the statute. It seems manifest, to me at least, that he was incapable, at the time of the trial, of truly relating the facts making up an occurrence of three and a half months earlier.
[10] What is said above proceeds upon the theory that it is the duty of a judge, at any time after he has determined that a child is competent as a witness, to change his mind upon due occasion, remove the child from the witness-stand, and instruct the jury to disregard his testimony. It requires no argument to convince that this must be the rule. The trial judge should have taken that course upon the presentation of the child's testimony given at the preliminary examination.
Craig, J., concurred. *Page 781