Appellant earnestly insists that we erred in holding the child witness to be competent, and we have again reviewed the record in this regard. It is generally understood that before a witness can testify, to whom objection is made because of immaturity, it must appear from the circumstances, or from the examination had, that the witness possesses intelligence enough to fairly narrate the facts, and understandings the evil of lying, and the fact that such wrongdoing is punishable. Under Sec. 1771 of Mr. Branch's Annotated P. C. appears the statement that the fact that a child's testimony is intelligently given and that it believes that it is wrong to lie, seems to commend it competency more than its knowledge of an obligation of an oath, or its idea of where liars go now or hereafter. In the same section appear citation of several authorities supporting the proposition that the admission of a child's evidence is properly within the sound discretion of the trial court. McCormick v. State, 52 Tex.Crim. Rep.; Zunago v. State, 63 Tex.Crim. Rep.; Brown v. State, 176 S.W. Rep. 51. We regret that we cannot agree with appellant in this contention. Our observation of the testimony of this little girl leads us to conclude that she was unusually intelligent and told her story in straightforward, clear and understanding language.
Appellant also insists that we misunderstood his bill of exceptions complaining of the court's treatment of the alleged hearsay statement of a witness. It appears that the witness was testifying and narrating various facts and made the statement complained of. There was no objection to the question asked the witness, and no objection to the testimony now complained of until after the statement had been made by the witness. There seems not to have been any further injurious reference to this matter either in the argument or otherwise, and the only complaint is of the statement of the witness. The court qualifies the bill of exceptions by saying that the witness voluntarily made the statement and that objection was received, but no request was made to have the court withdraw said remarks from the consideration of the jury. Under the facts thus stated we are unable to conclude that the matter presents any reversible error. The statement was not one particularly germane to the question of appellant's guilt or innocence; it consisted of a statement regarding sugar bought by another party, and what was then said. The matter was stated by the witness as part of his narration of the circumstances. No request was made that it be withdrawn. No further hurtful use of the matter appears. We are unable to agree with appellant's contention in regard to this matter.
The motion for rehearing will be overruled.
Overruled. *Page 545