The opinion
DUFRESNE, Justice
(Concurring in part and dissenting in part).
I concur in the majority opinion except where it sustains the jury verdict of guilty respecting the charge of sodomy upon the defendant’s 9 years old grandson. Although the child’s competency to testify was properly ruled upon by the presiding Justice when evaluated in preliminary examination, a reading of the transcript respecting the boy’s subsequent testimony raises serious considerations as to whether the Court’s initial determination was correct.
On direct and redirect examination conducted by the State’s attorney where leading questions were properly permitted because of the child’s obvious mental retardation, the witness related facts which if true would sustain an accusation of sodomy. On cross and recross examination by counsel for the defendant, he denied the truth of his previous accusations. He never repudiated the fact that his mother told him what to say when the questions would be asked. He denied that the defendant was his grandfather, because his mother told him that the defendant was no more related to him. No definite time appears as to when the alleged acts are supposed to have happened. Both sisters, although they corroborated acts of indecent liberties by the defendant upon the respective bodies of each other, denied ever seeing the defendant “do anything” with their young brother.
In the sodomy case, the quality of the evidence is so dubious as to cast serious speculation upon the happening of such sordid accusations as testified to by this young witness who has demonstrated beyond any doubt his susceptibility to suggestions of others, and especially to those of his mother. I am satisfied that no impartial and unpredjudiced reasoning mind *217 could decide with any degree of certainty, let alone beyond a reasonable doubt, whether the boy’s uncertain story was true or the result of his mother’s coaching.
The indictment for sodomy was tried with the indictments for indecent liberties upon the persons of the witness’ young sisters. By virtue of the consolidation evidence admitted to prove the commission of the crimes of indecent liberties was so prejudicial that it must have inflamed the minds of the jurors against the defendant to the extent that they relied upon such evidence as corroboration to sustain the defendant’s conviction of sodomy with the boy, disregarding in so doing the vacillating nature of the boy’s evidence.
The evidence in the sodomy case, standing completly uncorroborated and avowedly influenced under the instructions of the mother, undermined as it was by the witness’ contradictory shilly-shally affirmations and denials, falls far short of overcoming the presumption of innocence beyond a reasonable doubt; as a matter of fact, such evidence when viewed in a setting free of the improper inferences which naturally and subconsciously arise from the foul odors of the indecent liberties cases would in all probability result in an acquittal. The potential for prejudice was so great that a new trial should be granted in that case.
So far as the trial for sodomy is concerned, it is controlled by the principles enunciated in such cases as State v. Robinson, 1958, 153 Me. 376 , 139 A.2d 596 ; State v. Wheeler, 1954, 150 Me. 332 , 110 A.2d 578 ; State v. Doak, 1960, 156 Me. 8 , 157 A.2d 873 ; State v. Sullivan, 1951, 146 Me. 381 , 82 A.2d 629 .
Therefore, in case docketed at No. 1134 of the criminal docket of the Superior Court in and for the County of Somerset, I would sustain the appeal, set aside the verdict of guilty of sodomy and grant a new trial. With due respect I dissent from the majority opinion to the contrary.