The appellant was convicted in the court below of the offense of assault with intent to rape, and present ■ his case here on appeal.
The indictment charges the offense to have been committed upon Cordelia Holst, a female under the age of ten years. Over objection, the State was permitted to make proof in the court below that Cordelia had complained of the assault and exhibited marks of violence. To this extent it was proper, in an ordinary case, that the testimony should go. The prosecution was further permitted to put in evidence the particulars of the complaint, and the name of the person whom she had given as the person making the assault. This also being objected to, its admission in evidence was erroneous.
Upon this subject Mr. Bishop has well said: “Neither the particulars of the complaint, nor the name of the person whom she mentioned as offender, can, by the English and more common American practice, thus be given. They may be brought out by the defendant, if he chooses, on cross examination.” (BishopV Crim. Proc., vol. 2, sec. 963.)
In some of the States, however, it is held that the prosecution may call for these particulars, to an extent varying in the different States, in the first instance. In this State the holding on this question is with the common law rule. In Pefferling v. The State, 40 Texas, 487, the court says: “It is, we think, well established, by reason as well as the great weight of authority, that proof of the particulars of the complaint, and the detailed statement of the alleged facts and circumstances connected with it, as was permitted in the court below, can not be admitted as original evidence to prove the truth of the statements testified to by the injured party, or to establish the charge against the prisoner.” And “if the girl is too young, or too little instructed in the nature of an oath, to testify in the usual way, she can not give the evidence otherwise; nor will proof of her declarations be admitted, and so the evidence is lost.” (2 Bishop’s Crim. Proc., 961.)
We conclude that there was error in admitting as original testimony evidence of the particulars of the girl Cordelia’s complaint, and more especially the giving of the offender’s name. *8The child was in her sixth year at the time of the alleged assault, and had barely attained the age of seven when offered as a witness. When placed upon the stand, as preliminary to her examination, she was tested as to her competency as follows: “I do not know what the gentleman did (presumably referring to the act of administering the oath) when I held up my hand. I do not know how old I am. I have never been to school. I know my A B C’s. I do know where I live. I live here in Beaumont now. Last summer I lived down on the bayou. ‘When you were on the bayou, did you know how to go around to the neighbor houses by yourself?’ Yes, sir; I would walk. I would go by myself and would come back by myself. ‘Do you know what would be done with you if you were to tell a story in the court house?’ Ho, sir. ‘Have you been talked to about where you would go if you were to tell a story and be a bad girl and then die?’ I don’t know, sir. ‘Do you see anybody else in the court house that you know?’ I see Cousin Shep; he is standing by that post out yonder. I do not see anybody else I know. The judge: ‘If you were to tell a story while in the court house, it will be very bad, very wrong. If you were to tell a story in the court house, after being sworn, you might be sent to the penitentiary; or if you were to die after telling a story you might go to the bad man.’ ”
“Examination resumed by counsel: I do know Edward; then be sits (points him out). The Judge: ‘Cordelia, that is Mr. Leonard. We will be as good to you as we can be. You shan’t be hurt. We are good to little girls here. When Mr. Leonard asks you a question, tell him as near as you can answer the question. Answer just as you remember it, and, if you do not know, just tell him you do not know. This is Mr. Greer here. When he asks you a question, answer that, too.’ ”
Our law upon this subject provides that, “children, or other persons, who, after being examined by the court, appear not to possess sufficient intelligence to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath, are incompetent witnesses.” (Code Crim. Proc., art. 730.)
By reference to the examination above quoted from, the record, taken in connection with the child’s manner of testifying in her after examination, it is doubtful if she came up to the standard of intelligence demanded by the statute, with respect to her ability to relate the transaction. But if this qualification *9for competency be admitted, she unquestionably fell short in the other qualifications, viz.: that of being sufficiently advanced in intelligence to “understand the obligation of an oath.” This fact was impressed upon the mind of the trial judge, as is evidenced by his effort to instrúct the witness upon this subject. The evidence quoted shows that she did not know the fact that she had been sworn at all. Her answer was that she “did not know what the gentleman did when she held up her hand;” nor, it may be added, was she subsequently informed.
Was the instruction given by the court, at the time the witness was placed on the stand, sufficient to bring to her mind a realizing sense of the obligation of an oath? Upon this subject Mr. Russell says: “The effect of the oath upon the conscience of the child should arise from religious (with us, moral) feelings of a permanent nature; and not from instructions confined to the nature of an oath, recently communicated to it for the purposes of a trial. ” Where the child does not appear to adequately comprehend the nature and obligation of an oath, courts have often thought it necessary for the purposes of justice to continue the case, directing that the child should in the meantime be properly instructed. It is in the discretion of the court to continue for such a purpose. And in a case for want of this qualification, the incapacity arising from no neglect, but from being but six years old and too young to be taught this obligation, Pollock, C. B., refused to postpone the trial, since he “doubted whether the loss in part of memory would not more than countervail the gain in part of religious (moral) education.” “Application to postpone in such a case should be made before the child is examined by a grand jury, or, at all events, before the trial'is begun; since, if the postponement is after the jury are sworn and the prisoner put upon trial, the judge can not discharge the jury, but should direct an acquittal (if this be all the evidence); and where the child is incompetent to be sworn, the account of the matter which she has given to others is inadmissable.” (3 Russ, on Crimes, 612.)
“But, if the witness be an adult, and still does not possess sufficient intelligence to understand the obligation of an oath, it is not proper to postpone the trial in order that the witness may have an opportunity of being instructed upon the subject before the next term, as may be done in the case of a child.” (Id., 617.)
*10Opinion delivered January 26, 1887.As also bearing upon this subject, vide Taylor v. The State, decided at last Tyler term, opinion by White, P. J.
Cordelia Holst being incompetent to testify, because not possessing sufficient intelligence to understand the obligation of an oath, the objections of the defendant to the admission of her testimony should have been sustained. For this error of the court below, and for that considered in the opening of this opinion, the judgment is reversed and the cause remanded.
Reversed and remanded.