The opinion
Dissenting Opinion.
Jackson, J.
I cannot agree with the conclusions reached in the majority opinion and dissent thereto.
*598 Appellant was charged, by affidavit filed in the Grant Superior Court, with Assault and Battery with Intent to Gratify sexual desires. The trial court, without the intervention of a jury, found appellant guilty as charged. Pre-sentence investigation was ordered on March 31, 1966.
Thereafter, on April 5, 1966, the pre-sentence investigation report was filed, and the court being duly advised, rendered judgment on its previous finding, sentencing the defendant-appellant to imprisonment in the Indiana State Prison for not less than two nor more than twenty-one years.
April 25, 1966, appellant’s Motion for New Trial was filed, such motion, omitting heading, formal parts, etc., contains the following grounds:
“1. That the Court erred in abusing its discretion by allowing an incompetent witness, the Haley child, age five (5) to testify.
2. That the Court erred in overruling the defendant’s motion to suppress evidence with respect to statements made to the Police prior to his being informed of his Constitutional Rights.
3. That the finding of the Court is contrary to law.
4. That the finding of the Court is not sustained by the evidence.
5. That the finding of the Court is contrary to law and not sustained by sufficient evidence.”
Appellant’s Motion for New Trial was by the court overruled on November 29, 1966.
The praecipe for appeal was filed on December 7, 1966. Appellant’s Assignment of Errors was filed in this Court on February 27, 1968, and omitting heading, formal parts and signatures, reads as follows:
“The Appellant says that there is manifest error in the judgment and proceedings in this cause in the trial Court, in this, to-wit:
1. That the Court erred in overruling Appellant’s Motion for a New Trial. (Transcript page 10, lines 1-26).
*599 2. That the Court erred in that its findings are contrary to law.
3. That the court erred in that its findings are not sustained by sufficient evidence in that the State failed to prove by any probative evidence the venue of the crime charged.
4. That the Court erred in overruling Appellant’s Motion for a Finding of Not Guilty immediately after the State rested its cause in chief. (Transcript page 112, line 22, to page 113, line 9.)
5. That the Court erred in overruling Appellant’s objection allowing the witness, Wilma Jean Haley, age five (5) years to testify in that she did not know to tell the truth or understand the nature and obligation of an oath. (Transcript page 49, lines 10-18.)
6. That the Court erred in that it abused its discretion by allowing an incompetent witness, Wilma Jean Haley, age five (5) years to testify as to occurrences that happened when she was three (3) years old. (Transcript page 49, lines 10-18.)
7. That the Court erred in failing to properly qualify the witness, Wilma Jean Haley, by showing that she knew the difference between truth and falsehold and that she knew punishment would follow if a falsehood was testified to. (Transcript page 47, lines 1 to page 49, line 8.)
8. That the Court erred in forcing and allowing defendant’s attorney to waive a change of venue from the county or change of judge without the defendant being present, this violating the defendant’s rights. (Transcript page 4, line 29 to page 5, line 5.)
9. That the Court erred in allowing defendant’s attorney to file a Motion for a Jury Trial and sustaining same outside the presence of the defendant and then proceeding to try this cause without a jury thus depriving the defendant of his most basic constitutional right. (Transcript page 4, lines 17-27.)
For which errors, Appellant prays that judgment be in all things reversed.”
From the evidence adduced at the trial it appears that on or about September 24, 1964, appellant who was on friendly terms with the Haleys, and apparently a rather frequent visitor at their home, stopped by their home in the late afternoon to see Mr. Haley. On being advised by Mrs. Haley that *600 her husband had not yet returned from work he continued to converse with Mrs. Haley. During this time Wilma Jean, then approximately four years of age appeared on the scene clad in a blouse and a pair of pants with a hole in them. Appellant asked permission from the mother, Mrs. Haley, to take the daughter and buy her some new clothes. Appellant had previously helped the family financially and the mother consented. Appellant and Wilma Jean left in appellant’s automobile and were gone for a period of over three hours. The mother became worried and telephoned the police. Appellant and Wilma Jean returned just as the mother was returning home from calling the police. The child was in the house when the mother walked over to the car and spoke to appellant. Appellant and Mrs. Haley talked for several minutes, and then appellant gave her a dime to call the police to tell them the child was home.
After telephoning the police Mrs. Haley went home, spoke again with appellant, and then went into the house to see her daughter’s new clothes. It was then she noticed the child had marks on her face and arms and her face had been scratched, like beard marks, she observed blood stain in the vaginal area. The- mother then went back outside and started calling appellant names and hitting him with her fists and accusing him of hurting her daughter. Appellant told her she was crazy, got in his car and left, and Mrs. Haley called the police.
In his Motion for New Trial and in his Assignment of Errors appellant alleges numerous grounds for reversal. In view of the determination reached in the case at bar I need and will discuss only appellant’s allegation that the trial court erred in permitting the alleged victim to testify at the trial in behalf of the State.
At the time of the alleged assault Wilma Jean was four, and one-half years of age. At the time of trial she was almost six years old.
*601 It is the appellant’s contention that as the child was under the age of ten at the time of trial and that as disclosed by the record it was not properly demonstrated that she understood the nature and obligations of an oath and that she knew she should tell the truth and that she would be punished if she told a lie, it was error to permit her to testify. Appellant also contends the child was incompetent to testify to events that occurred when she was four and a half years of age and at a time approximately one and one-half years prior to trial.
By statute children, under ten years of age, are in this State presumed to be incompetent as witnesses. The applicable statute, Ind. Anno. Stat. § 2-1714 (1968 Repl.) reads in pertinent part as follows:
“Who are incompetent. — The following persons shall not be competent witnesses:
Second. Children under ten (10) years of age, unless it appears that they understand the nature and obligation of an oath.”
There is, as yet, no clear test with which to determine whether a child under ten understands the “nature and obligation of an oath.” However, prior decisions of this Court have indicated that it will be sufficient for the purposes of the statute if the child witness knows that he must tell the truth, and believes that he will somehow be punished if he tells a lie. Shipman v. States (1962), 243 Ind. 245 , 183 N. E. 2d 823 ; Morgan v. State (1962), 243 Ind. 315 , 185 N. E. 2d 15 ; Martin v. State (1958), 239 Ind. 174 , 154 N. E. 2d 714 .
Whether the child does understand the nature and obligation of an oath is a question to be decided by the trial judge, and this Court may only interfere with his decision where there is a clear abuse of discretion. Shipman v. State, supra; Morgan v. State, supra; Martin v. State, supra; Tyrrel v. State (1912), 177 Ind. 14 , 97 N. E. 14 .
*602 In the case at bar the trial judge questioned the child in the following manner:
“Q. How old are you, Wilma Jean?
A. 5.
Q. Ordinarily, when people come into court, we ask them to tell the truth, the whole truth and nothing but the truth. Do you understand you have got to tell the truth ?
A. Yes.
Q. You understand every word you give to the Court must be the truth?
A. Yes.
Q. Are you willing to tell the truth?
A. Yes.
Q. You understand here is a man whose liberty is at stake. You are willing to tell the truth and, to put it bluntly, you will tell the truth?
A. Yes.”
It is apparent from the foregoing that, although the trial judge attempted to ascertain the child’s willingness to tell the truth, it was never properly determined whether the child understood the difference between telling the truth and telling a lie. Moreover, on the basis of several answers given by the child to questions put to her by appellant’s trial counsel, it does not appear that she did know the difference between telling the truth and telling a lie. The following excerpts from the transcript clearly illustrate that the child could not distinguish between telling the truth and telling a lie:
“Q. Have you ever told a lie?
A. I don’t know.
Q. You don’t know?
A. No.”
On cross examination, the following testimony was illicited:
“Q. Do you know that man there?
A. No.
*603 Q. You don’t know him?
A. No.
Q. Are you now telling us the truth, Jean?
A. I don’t know.
Q. You don’t know? Do you remember my name?
A. No.”
The record clearly discloses from the child’s testimony that she was unable to distinguish between telling the truth and telling a lie, further she gave no indication of knowledge that she would be punished if she told a lie. That being so, the statutory requirement that children under ten years of age “must understand the nature and obligation of an oath” before being competent to testify has not been met. The statute specifically creates a presumption of incompetency that must be clearly overborne before a child under the age of ten may be considered competent to testify. In the case at bar a child not yet six was permitted to testify to events occurring when she was four and a half years of age. The presumption of incompetency was not overborne, on the contrary it is clearly apparent from the record by her answers to questions that she was indeed incompetent to testify and the action of the trial court in permitting her to be used as a witness constituted reversible error.
The judgment should be reversed and the cause remanded to the trial court with instructions to grant appellant’s Motion for a New Trial.