OPINION OP THE COURT BY
WHITING, J.Tlie defendant was indicted, tried and convicted of the crime of rape on a girl of the age of 5 years, in the First Circuit Court, November term, 1895, and the case is brought to us on defendant’s bill of exceptions.
The principal exception is to the competency of the prosecuting witness, Aimoku, a girl of the age of five years.
The authorities in the United States and England have repeatedly sustained the competency of witnesses of five to seven years of age, and permitted them to make oath or affirm, although such witnesses could not be convicted of perjury, and *525only in few instances Las the discretion of the trial judge been reversed. A preliminary examination by the trial judge is necessary to ascertain the competency of the minor to give testimony.
There is no precise age within which children are excluded from testifying. Their competency is to be determined, not by their age, but by the degree of their knowledge and understanding. It is essential that they should possess sufficient intelligence to receive just impressions of the facts respecting which they are examined, sufficient capacity to relate them correctly, and sufficient instruction to appreciate the nature and obligation of an oath.
People v. Bernal, 10 Cal. 66.
State of Virginia v. Mitchell, 19 Lawy. Rep. Ann. 605, and notes.
The competency of a child of five years of age as a witness does not depend upon his years, but upon the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless, from that which is preserved, it is clear that it was erroneous. These rules have been settled by many decisions, and there seems to be no dissent among the recent authorities.
Wheeler v. U. S., 159 U. S. 525, and cases cited.
Com. v. Robinson (Mass. 1896), 43 N. E. 121.
But, however, our statutes have provided the authority for receiving the evidence of minors, and the tests necessary to be applied to ascertain their competency.
Chapter 32, Laws of 1876, Section 50 (Comp. Laws p. 375).
*526“On the trial of any issue joined, or of any matter or question, or any enquiry arising in any suit, action or proceeding in any court, or before any person having by law or by consent of parties, authority to hear, receive and examine evidence, it shall be lawful for such court or person to receive the evidence of any minor, notwithstanding he may be destitute of the knowledge of God and of any belief in religion or in any future state of rewards and punishments. Provided always, that the evidence of such minor shall be given upon his affirmation or declaration to tell the truth, the whole truth, and nothing but the truth, or in such other form as may be approved of and allowed by such court or person as first aforesaid and after he shall have been camPioned by such court or person that he will incur and will be liable to punishment if he do not tell the truth. Provided also, that no such evidence shall in any case be received unless it shall be proved to the satisfaction of such court or such person that such minor perfectly understands the nature and object of such declaration or affirmation aforesaid, and the purpose for which his testimony is required.”
(Our attention has been called by Mr. Justice Prear to the omission in the statute (Sec. 50) as printed in the Oomp. Laws, p. 375, of the following words: “as first aforesaid and after he shall have been catdioned by such court or person,” the same being italicised in the above quotation from Ohap. 32, Sec. 50, Laws of 1876, to which chapter and section, in- the future, reference should be specially made to avoid error and misconception.)
The trial judge through the court interpreter, had a preliminary examination of the young witness, the transcript of which is as follows:
Preliminary examination of Aimoku (a native Hawaiian girl of five years of age) by the court—
Q. Aimoku, where do you live?
A. In Kamanuwai.
Q. Where is your mother?
*527A. Out there.
Q. Have you auy fatter?
A. Yes, sir.
Q. Where is Re?
A. He Ras gone to Maui.
Q. Do you ever go to cRurcR?
A. Ho.
Q. Does your mother ever go to church?
A. Ho.
Q. Do you know whether your father goes to church or not?
A. Ho.
Q. Do you know where Kaumakapili Church is?
A. Yes, sir.
Q. Do you know where Kawaiahao Church is?
A. Yes, sir.
Q. Where is Kawaiahao Church?
A. It is near our place.
Q. Where is the Kaumakapili Church?
A. Our place where we live is in back and Kaumakapili Church is outside our place.
Q. Do you think it is wrong to tell a lie?
A. It is not good.
Q. Hot good to tell a lie?
A. Hot good.
Q. Do you think that you shall always tell the truth or not?
A. Yes, sir.
Q. If you should tell a lie what do you think would happen to you?
A. I don’t know.
Q. Did you ever hear of God?
A. Yes, sir.
Q. Do you know whether or not he loves little children who tell a lie?
A. Ho.
Q. Do you know what he would do with them?
A. Ho.
*528Q. Do you think he would love little children that didn’t tell the truth?
A. Aole makemake.
Q. If you were taken as a witness in this case, would you uv derstand that you must tell the truth ?
A. Tes, sir.
Mr. Robertson — I think it must be shown that the witness fully understands the nature and object of an oath; she ha® not done so yet.
Q. Do you know when you come here whether or not you hold up your hand and say that you will tell the truth?
A. Yes, sir.
The Court — I shall allow the witness to be sworn.
Mr. Robertson — I object to the witness being sworn in the-case, because it is not shown that the witness understands the nature or object of an oath nor the purpose for which she is-put on the witness stand.
Objection overruled. Exception.
The witness was sworn in the usual form of oath.
I am of opinion that in this case no oath ought to have been administered, for in any case, in order that, an oath or affirmation may be efficient for the purpose, that is, binding on the conscience of the witness, it is necessary that such witness, should at least have some appreciation of its nature and obligation, and such cannot be said of the witness Aimoku.
Our statute specially provides that in these cases no such evidence shall in any case be received unless it shall be proved to the satisfaction of such court or such person that such minor perfectly understands the nature and object of such declaration or affirmation, and the purpose for which his testimony is required.
The trial judge apparently overlooked the last clause of this, law, viz., perfectly understands * * * * purpose-for which his testimony is required,” for I do not find from the statement of the preliminary examination of the witness; *529that there was any compliance witR tliis requisite of tRe statute.
Attorney-General W. 0. Smith, for prosecution. A. G. M. Robertson, for defendant.On tRis ground tRe exceptions are sustained and a new trial ordered. TRe otRer exceptions are not necessary to Re considered.