This was an indictment presented in the District Court of Wagoner county, August 15, 1913, against Dotson Walker, plaintiff in error, for rape, alleged to have been committed on or about the 15th day of September, 1911, upon the person of Bessie Burgess, a female child under the age of *Page 190 fourteen years. On a trial before a jury the defendant was found guilty of rape in the first degree as charged in the indictment and his term of imprisonment in the penitentiary was fixed at ten years. The court overruled a motion for a new trial and rendered judgment on the verdict, to reverse which the defendant appealed by filing in this court May 2, 1914, a petition in error with case-made.
Of the various errors complained of it is only necessary to note those based upon the rulings of the court on the admission and exclusion of evidence, and the sufficiency of the evidence to sustain the verdict.
The first question presented is, did the court err in holding the child Bessie Burgess competent as a witness?
Our statute provides:
"The following persons shall be incompetent to testify:
"First. Persons who are of unsound mind at the time of their production for examination.
"Second. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly."
Section 5050 Rev. Laws.
Under the statute when a witness is objected to, on the ground of incompetency by reason of nonage, or want of intelligence, it is the province of the trial court to determine the witness' competency, and its decision will not be reviewed unless there is a clear abuse of discretion, or the court admits or rejects the witness upon an erroneous view of a legal principle.
Adams v. State, 5th Okla. Cr. 347, 114 P. 347.
The examination of the witness, Bessie Burgess, shows that she was nine years old; that she knew when she held up her hand she was swearing to tell the truth; that she had attended Sunday school and had learned about God, and if she was a good girl and always tell the truth she would go to God; that if she would tell a story she would go to the Boogerman. *Page 191
Counsel for the defendant then asked her if she knew, "the meaning of an oath." She answered, "No, sir." It is contended that this answer of the witness shows incapacity and incompetency, and therefore, "The court committed an abuse of discretion in permitting her to be sworn and to testify as a witness."
There is no precise age fixed at which children are excluded from giving evidence. Under the statute the competency of children is to be determined not by their age, but by the degree of understanding which they appear to possess. As a general rule the child should appear capable of distinguishing between good and evil and should be of sufficient intelligence to have a just appreciation of the difference between right and wrong, and a proper consciousness of the punishment of false swearing.
In this case no question seems to have been made as to the witness' capacity to receive just impressions respecting the facts upon which she was to be examined. While she stated that she did not understand the nature of an oath, as possibly many an adult might do if required to define the nature of the crime of perjury, we are satisfied that she understood the difference between right and wrong and the danger of false swearing, and that she was of sufficient intelligence to appreciate the conditions in which she was placed. Courts of justice should regard substance, not words, and a child that has an adequate sense of the impropriety of falsehood does understand the nature of an oath in the proper sense of the term, even though she may not know the meaning of the word oath, and may never have heard that word used.
Williams v. United States, 3 App. D.C. 335.
In this case it does not appear by the preliminary examination of the witness that she was incapable of receiving just impressions of the facts about which she was to testify or of relating them truly. For the reasons given we are of opinion that this witness was properly permitted to testify. *Page 192
It appears from the record that when the case was called for trial the defendant demanded that a physical examination of the prosecutrix by a competent physician should be made. Which demand was denied by the court and exception allowed.
It will be seen from the statement of the testimony that the evidence adduced to establish the corpus delicti is of a very doubtful and inconclusive character; it consists exclusively of monosyllable answers by the child to leading and suggestive questions propounded by the county attorney and on her cross-examination she unhesitatingly states that her uncle Oliver Walker promised to buy her new shoes and her uncle Bill Brady promised to buy her a new dress if she would tell this story to the grand jury, and that before the trial they told her again they would get her a new dress and shoes if she would tell this story. In view of the unsatisfactory character of the testimony of the child witness and the fact that there is a direct conflict in her testimony, and that of the only other witness produced by the state, we think that the court erred in refusing the defendant's demand, that a physical examination of the child be made by a competent physician. While, "any sexual penetration however slight, is sufficient to complete the crime." Section 2416 Rev. Laws, there must be proof of some degree of entrance of the female organ, and the practice seems to be not to permit a conviction in those cases in which it is alleged violence was done, without medical proof of the fact, whenever such proof is attainable. If the private parts of the defendant entered those of the child, then only seven years of age, as the testimony of the state tends to show, the marks of penetration would be permanent and would be the best evidence of the actual commission of the crime charged.
It appears that when the state rested the court announced "that it will be the holding of the court in this case, in view of the evidence that has been introduced, that the state is not confined to any particular day but that any day or date within three years prior to the date the grand jury returned this indictment fixes this offense." And when the defendant's mother, the *Page 193 first witness for the defense was called, the court upon the objection of the county attorney refused to permit the witness to testify where she was or where the prosecutrix was on the day alleged in the indictment on the ground that such testimony "is incompetent, irrelevant and immaterial to any issue in this case."
While the announcement of the court may be a correct general statement of law as applied to a variance between the time fixed in an indictment and that proven upon a trial, it was not a fair and explicit statement of the rule as it should have been applied to the facts in evidence in this case. The only testimony tending to show the time of the commission of the offense was that of the witness Brady, who stated that "it was either in September or October of the year 1911." The defendant was entitled to know the particular offense that he was called upon to defend against and to know approximately the time when it was committed, and we think that under the peculiar circumstances of this case, the uncalled for announcement of the court was prejudicial to the substantial rights of the defendant. We also think that the evidence rejected by the court was relevant, and competent as a preliminary inquiry, and that the remarks of the court excluding the same, could not have been otherwise than prejudicial to the defendant. A brief reference to a few facts of the case is all that is necessary to show the materiality of the evidence offered on the part of the defendant and rejected by the court. The evidence on the trial showed that the wife of the defendant, the mother of the prosecutrix died within a week from the date alleged in the indictment, and that the defendant's mother made her home with the defendant at the time the evidence for the state tends to show the alleged crime was committed.
The fact that no complaint was made until about two years after the alleged outrage, and that this delay is unexplained are circumstances which should be considered in connection with the utterly improbable statement of the despicable wretch who would have it inferred from his testimony that he witnessed the commission of a most revolting and atrocious crime committed upon a helpless child without protest on his part, or the manhood to *Page 194 attempt to protect her or to at least make his presence known so as to prevent further abuse and outrage. A defendant in a criminal prosecution is entitled to a legal trial, conducted in accordance with the rules of law; and the question of his guilt or innocence should be determined upon legal evidence. Where material evidence has been offered on the part of the defendant, and erroneously rejected by the court, we are not at liberty to say that the error is merely technical, or that the substantial rights of the defendant have not been prejudiced. The defendant has the right to submit evidence of such character to the jury in order that it may pass upon its weight and credibility, and if he be deprived of that right, it is a substantial one, which, when properly presented to this court by exceptions reserved will require a reversal of his conviction.
Other questions are raised but we forbear from further discussion of this case. Enough has been said to indicate that we are of the opinion that the defendant did not have such a fair and impartial trial as he was entitled to under the law. If the unnatural and revolting crime charged has been committed, and if the defendant be guilty, it can be proven on another trial conducted more in accordance with the rules of law than the one under consideration.
The judgment of conviction is reversed and a new trial awarded.
FURMAN and ARMSTRONG, JJ., concur. *Page 195