# Martin v. State > Indiana Supreme Court · January 31, 1969 · 251 Ind. 587 URL: https://www.frixlaw.com/law-library/cases/9859645 ## Case - **Full name:** Martin v. State of Indiana - **Court:** Indiana Supreme Court - **Decided:** January 31, 1969 - **Citations:** 251 Ind. 587; 244 N.E.2d 100; 1969 Ind. LEXIS 405 - **Precedential status:** Published - **Opinion:** Dissent by Hunter - **Judges:** Debruler, Jackson, Hunter - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9859645 ## Opinion text Dissenting Opinion. Hunter, J. I respectfully dissent from the majority opinion in the case at bar because of my belief that the testimony of the prosecutrix was inadmissible and constitutes a reversible error. Ind. Anno. Stat. § 2-1714 (1968 Repl.) provides that children under ten (10) years of age shall not be competent wit *604 nesses unless it appears they understand the nature and obligation of an oath. Whether this five-year-old prosecutrix understood the nature and obligation of her oath is a question of fact within the discretion of the trial court. Martin v. State (1959), 239 Ind. 174 , 154 N. E. 2d 714 ; Tyrrel v. State (1912), 177 Ind. 14 , 97 N. E. 14 . To say that the determination is within the trial court’s discretion does not mean that the decision need not be supported by probative evidence. “The use of the word ‘discretion’ in connection with the competency of a child as a witness is not entirely satisfactory. And the frequency with which the appellate courts have reversed the trial courts on the issue of competency demonstrates that if there is a true discretion, it operates in a very narrow field. What the decisions really mean is that the trial court is called upon to decide a few questions of fact before it decides whether the child may testify, that the decision is based not only upon statements made by the child gives as he makes his statements, and that when the trial court makes such preliminary findings of fact its decision should not be reversed unless the appellate court can see clearly that the trial court has reached the wrong conclusion as to the facts or has applied an incorrect principle of law. To say that a court has a discretion in such matters is akin to saying that in an action for damages for personal injuries the court has a discretion as to whether it shall find for the plaintiff or for the defendant. In this connection see Carlotz v. Gavin (1945) 133 NJL 61, 42 A. 2d 461 , wherein the court said: ‘The adjudication as to capacity and responsibility ... is to be made by the trial court. Its judgment is often said to be an exercise of judicial discretion. Whether that phrase properly describes the nature of the judicial act in admitting infant children as witnesses need not be determined. Whatever its nature may be, it is well settled that the judgment will not be reviewed on error unless it is plainly shown to have been made without any evidence to support it.” (our emphasis) Annotation, 81 A. L. R. 2d 386, 402-03. The decision by the trial court as to the competency of an infant witness might better be characterized as a limited discretion, and must be based on answers to certain questions of fact, and these answers must in turn be supported by the *605 evidence presented at the trial. Artesani v. Gritton (1960), 252 N. C. 463 , 113 S. E. 2d 895 . 81 A. L, R. 2d, supra, at 400. To understand the obligation of an oath, an infant witness must understand that some adverse consequence may result from telling a known falsehood. Martin v. State (1959), 239 Ind. 174 , 154 N. E. 2d 714 ; Wheeler v. United States (1895), 159 U. S. 523 . Jurisdictions with a similar interpretation of this statutory requirement include: New York Code Cr. Proc. §392 and Olshansky v. Prensky (1918), 185 App. Div. 469 , 172 N. Y. S. 856; Texas Code Cr. Proc. § 38.06 and Anderson v. State (1921), 88 Cr. R. 307, 226 S. W. 414 ; Canada: Rex v. Antrobus (British Columbia, 1946), 2 D. L. R. 55; Bigelow, “Witness of Tender Years,” 9 Crim. L. Q. 298 (March, 1967). Some authorities have advocated a more relaxed test for determining the competency of an infant witness. E.g., see Notes, 32 Conn. B. J. 103 (March, 1958) and 38 N. D. Law. 95 (Dec., 1962). However, most states do not have a statute that requires that a competent infant witness must understand the obligation of an oath. “It should be noted that the common 10-year statute does not refer to the obligation of an oath.” 81 A.L.R. 2d supra at 405. Cases arising in jurisdictions not having this express statutory requirement must be distinguished from the case at bar, for, absent this statute, the courts would admittedly be free to judicially establish their own tests for determining the competency of an infant witness. Our legislature has established the test for a witness under ten years of age and, unless there is a compelling justification for not following the statute, this test should be used in the case at bar. In Indiana, because of Ind. Anno. Stat. §2-1714 (1968 Repl.), the determination for the trial judge, as regards a witness under ten years of age, is not whether the witness is competent generally but rather the narrower question of whether the witness understands the nature and obligation of an oath. *606 The retribution envisioned by the witness may be physical, legal or divine, but it must be present for the witness to realistically appreciate the obligation to tell the truth which is imposed by the oath. In determining the competency of an infant witness in the first appeal which dealt with the Indiana statute, this court reasoned: “Here, the examination of the proposed witness, as it appears in the record, indicates the requisite capacity. True, she is ignorant as to the mode in which false swearing is punished; yet it may be fairly inferred from her statement, that she comprehends the obligation of an oath, and is satisfied that any deviation from the truth, while under oath, will certainly be followed by an appropriate punishment.” (our emphasis) Blackwell v. The State (1858), 11 Ind. 196, 198 . All the evidence necessary to support the determination that the prosecutrix understood the nature and obligation of an oath should have been established during the voir dire examination of the witness before determining that the witness was competent to testify on any other matter. Simpson v. The State (1869), 31 Ind. 90 . See also People v. Klein (1935), 266 N. Y. 188 , 194 N. E. 402 . To the contrary, in the case at bar, the voir dire examination of the prosecutrix by the court simply amounts to her being asked four different times if she is willing to tell the truth. At no time during the testimony of this five-year-old was it established that she understood the consequences of not telling the truth while under oath. Absent any evidence on this necessary question of fact, the determination that the witness understood the nature and obligation of an oath cannot be sustained. Her testimony was never stricken from the record, and a conviction which may have been based on this testimony should be reversed. Note. — Reported in 244 N. E. 2d 100 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9859645. Public record. Not legal advice.