With regard to persons who are declared to be incompetent to testify on criminal trials in this State, our statute names “children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with regard to which they are interrogated, or who do not understand the obligation of an oath.” Code Crim. Proc. art. 730, subdiv. 2. It is now said to be the established rule as well in criminal as in civil cases,, that children of any age are competent to testify and may be examined upon oath if capable of distinguishing between good and evil, whenever they show intelligence enough to observe and narrate transactions, or where they have a due sense of the obligation of an oath,— that is, possess sufficient knowledge of the nature and consequences of an oath. 1 Phill. Ev. C. H. & E. Notes, p. 11; 1 Greenlf. Ev. 367; Whart. Crim. Ev. (8th ed.) § 366.
The mode of eliciting and determining by examination the fact of competency is left to the sound discretion of the judge; and when the exercise of that discretion has been called in question, it has been more than once declared by this court that “ we believe that the court before whom the examination of a child offered as a witness is made is better able to determine as to its competency to testify than this court can possibly be from the bare transcript, and we would not feel warranted in reversing a conviction had on account of the admission of such testimony unless it was made clearly to appear that the discretion of the court had been abused.” Brown v. State, 2 Texas Ct. App. 115; Ake v. State, 6 Texas Ct. App. 398; Brown v. State, 6 Texas Ct. App. 286.
Mr. Starkie says that whether the infant be competent *138or not is a question for the discretion of the court. 2 Stark. Ev. 393. We are aware that the soundness of this doctrine has been called in question by the Supreme Court of Alabama, in State v. Morea, 2 Ala. 275, wherein it is said, “it may not be improper to add that we incline strongly to the impression that the admission or rejection of all evidence is not a matter of mere discretion, but rather that all such questions involve rights which must be ascertained aiid determined by fixed principles and by rules of law. We are not aware of any adjudicated case which tends to support Mr. Starkie in the contrary opinion.” In his work on Criminal Evidence (8th ed.), Mr. Wharton says, “the prehminary examination thus requisite is usually undertaken exclusively by the court, and it is said that it will require a strong case to sustain a reversal of the ruling of the court examining such a witness.” Sec. 368.
In the case before us the learned judge appears to have entertained serious doubts of the competency of the prosecuting witness, Mandy Burrell, both as to her intelligence and her sense of the nature, consequences and obligations of an oath. She was nine years of age, it is true, and yet her examination discloses an utter want of anything like a knowledge of the nature or character and consequences of the oath she had taken as a witness. As to the narrative she gave of the transaction, she stated that the facts she was to testify to had been rehearsed to her time and again by her parents, and she had been instructed by them what to testify. From the examination of the witness on her voir dire, as shown by defendant’s bill of exceptions (which the Reporters will give in full), we are of opinion that the witness showed herself wholly incompetent to • testify under our statute, and that the court erred in permitting her to do so over defendant’s objections.
The judgment is reversed and the cause remanded.
Reversed and remanded.