I respectfully dissent from the majority opinion in this case. In my opinion, the lower court erred in permitting Pauline Pheiffer to testify. This little negro girl was said by one witness to be eight years old. According to other witnesses, she was younger. Granting that the trial court did not abuse its discretion in finding that she had sufficient intelligence and understanding to be a competent witness, the record, as I see it, conclusively shows that she did not appreciate the meaning of an oath, and that she did not realize that she had been sworn to tell the truth. While she stated that she knew that it was wrong to tell "a story" and that file "bad man" would "get" her if she told something that was not true, she said that she did not know what swearing was, that she did not know what an oath was, that she did not hold up her hand with the other witnesses, and that when the clerk administered the oath she did not know what he was asking of the witnesses.
Now it is essential that a witness should not only know what telling the truth means, but should also knowingly assume an obligation to tell the truth. No matter how mature or intelligent a witness may be, his testimony should not be received unless he has made some formal promise by oath or affirmation that he will tell the truth in the case. In Greenleaf on Evidence, 15th Ed., vol. 1, pp. 448-449, the rule is thus expressed: "But here *Page 31 it is proper to observe, that one of the main provisions of the law, for securing the purity and truth of oral evidence, is, that it be delivered under the sanction of an oath . . . . A security to this extent, for the truth of testimony, is all that the law seems to have deemed necessary; and with less security than this, it is believed that the purposes of justice cannot be accomplished."
It is possible that, if the meaning of an oath had been explained to this witness, she might have acquired an understanding thereof which a subsequent examination would have disclosed, and the oath could then have been administered to her so as to make her testimony given thereafter competent. "If the child, being a principal witness, appears not yet sufficiently instructed in the nature of an oath, the court will, in its discretion, put off the trial, that this may be done." Greenleaf on Evidence, 15th, vol. 1, p. 505.
What was said by Judge HART in the case of Crosby v. State, 93 Ark. 156, 124 S.W. 781, 137 Am. St. Rep. 80, is applicable here: "In the present case we do not think the examination of the witness by the circuit judge was sufficiently comprehensive. The child must not only have intelligence enough to understand what he is called upon to testify about and the capacity to tell what he knows, but he must also have a due sense of the obligation of an oath, by which is meant . . . that the promise to tell the truth, must be made under `an immediate sense of the witness' responsibility to God, and with a conscientious sense of the wickedness of falsehood.'"
In the face of the witness' unequivocal statement that she was not sworn, that she did not understand the nature of an oath, and that she did not know she had promised to tell the truth, I cannot agree that her testimony was properly admitted. In a trial where the issue is life or death of a human being no solemnity, commanded by law to be observed, ought to be omitted. *Page 32