State's counsel in an oral argument, as well as in a written motion showing research and ability, asks for a review of the reversal of the decision holding that in receiving the testimony of the child to which reference is made in the original opinion, error was committed.
In the motion the age of the child is treated as seven years. As the matter was before the court upon the record, as shown by the bill of exceptions, the child was only four years old. As stated in the original opinion, she was four years old, could not read nor write, and did not, in the opinion of this court, possess sufficient comprehension of the obligation of an oath to warrant *Page 169 the receipt of her testimony. Courts and text-writers agree in the conclusions that when the child is only four years of age, extreme caution should be used in ascertaining its competency. In Hipple's case, 60 Tex.Crim. Rep., the following quotation from Wharton's Crim. Evidence, Sec. 366, page 743, is taken:
"To permit a child under four years of age to be sworn and examined as a witness would be to trifle with public justice. Hence, the dying declarations of a child of four years have been properly held inadmissible, and the admissibility of children of that age, as witnesses, is, on the same reasoning, disputed. But the testimony of a child between four and five years of age, and that of a child between six and seven, has been received on the trial of an indictment charging an attempt to ravish. Four years has been assigned as the minimum age, but after this age the question of admissibility is to be decided by the court."
The statute declares one incompetent who does not appear to have sufficient intelligence to relate transactions with reference to which they are interrogated or who do not understand the obligations of an oath. It is not to be assumed that a child is to be examined in the same manner, nor to be expected to explain its comprehension of the obligation of an oath in like language or with such clearness as would be expected from an older person. From a text-writer we quote:
"He is competent if he possesses mental capacity and memory sufficient to enable him to give a reasonable and intelligible account of the transaction he has seen, if he understands and has a just appreciation of the difference between right and wrong, and comprehends the character, meaning and obligation of an oath. If the witness fulfills these requirements, it is immaterial as bearing upon its competency that he is unable to define the oath to definite testimony." (Underhill's Crim. Ev. 3rd Ed., Sec. 331.)
Where the child is not under four years of age, the intelligence and the knowledge of the obligation of an oath is primarily for the trial judge, and in the absence of an abuse of discretion, his decision will be final. See Anderson v. State, 88 Tex.Crim. Rep., 110 S.W. Rep. 57; Zunago v. State, 138 S.W. Rep. 713; Partin v. State, 30 S.W. Rep. 1067; Click v. State, 66 S.W. Rep. 1104; Wren v. State, 264 S.W. Rep. 1007; Nicholas v. State, 270 S.W. Rep. 555; Branch's Ann. Tex. P. C., Sec. 1771, and cases cited. Where the conclusion of the trial judge upon the facts before him was clearly wrong, this court has frequently held that in receiving the testimony of a child, there *Page 170 was harmful error. See Williams v. State, 12 Tex.Crim. App. 127; Holst v. State, 23 Tex.Crim. App. 9; Lawson v. State, 50 S.W. Rep. 346; Mays v. State, 58 Tex.Crim. Rep.; Anderson v. State, 88 Tex.Crim. Rep.. In a case where a child so young as the present record reveals, and so ignorant touching the obligations of an oath as her testimony discloses, we cannot bring ourselves to believe the receipt of her testimony to be conducive to the due administration of justice. It may be that upon another trial, with proper instructions touching the nature of the obligations of an oath and the knowledge acquired through the lapse of time, her testimony may appear in a more favorable light. Upon this record showing her age to be four years and her lack of comprehension such as disclosed, we are constrained to regard the receipt of her testimony as error. In the original opinion, we have declined to follow the precedents holding that the husband may slay his wife when he takes her in the act of adultery. We cannot, however, bring ourselves in accord with the view of state's counsel that in the present case a charge on the law of manslaughter was not required. The situation portrayed by the appellant's testimony, if true, was obviously such as to warrant the jury in concluding that his mind, by adequate cause, was rendered incapable of cool reflection. The truth or falsity of his words and his state of mind were matters for the jury to determine. The fact that the court instructed that the circumstances being such as the appellant in his testimony declared them to be, he would be justified in killing his wife does not, we think, answer the contention that a charge on manslaughter should have been accorded. The jury might shrink from deciding that one might deliberately take the life of his wife when taken in adultery and yet easily conclude that the act might so inflame his mind as to render the accused incapable of cool reflection. Upon this subject we refer to the remarks made in the Billings case, 277 S.W. Rep. 687.
With the foregoing comments, the state's motion for rehearing is overruled.
Overruled. *Page 171