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State v. Gambutti

Decided: June 14, 1955.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PHILIP GAMBUTTI, DEFENDANT-APPELLANT



Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

Defendant was convicted after jury trial on an indictment charging that he "unlawfully did force and induce (name), a child under the age of 16 years, to wit, of the age of 7 years, to do and submit to an act tending to debauch said child and impair the morals of the said child, to wit, by then and there forcibly compelling the said (name) to submit to the fondling of her private parts," contrary to N.J.S. 2 A:96-3. His appeal is based upon certain alleged trial errors and the contention that the verdict was contrary to the weight of the evidence.

Before considering the grounds urged for reversal, it appears necessary to discuss a matter disclosed by the record which was not presented by the parties. The only witness offered by the State as to the actual commission of the offense, the victim of the alleged indecent act, was eight years of age at the time of the trial. Defendant's daughter, age nine years, also testified. Neither was sworn before doing so.

No objection was registered by the defendant to the failure of the court to administer the oath to these children. And the propriety of the course taken is not made a ground of appeal. But we were advised, in answer to questions during oral argument, that some of the trial courts follow the practice employed in this instance. For this reason, and because a new trial is to be ordered on grounds to be set forth, it is deemed expedient to restate the controlling principles here.

It has been settled for a long time that the competency of a child to be a witness is a matter for inquiry by the trial judge and rests largely in his discretion. His conclusion will not be disturbed unless it plainly appears to be unsupported by the evidence. State v. Labriola , 75 N.J.L. 483 (E. & A. 1907); State v. Tolla , 72 N.J.L. 515, 522 (E. & A. 1905); State v. Cracker , 65 N.J.L. 410 (Sup. Ct. 1900).

Here, when the infant complainant was called to the stand the usual inquiry was pursued by the trial judge to determine her competency to testify and to be sworn as a witness. After satisfying himself that she was competent to do so, he obtained an agreement from her to tell the truth and said:

"All right. I will let her testify on that affirmation."

Then without being sworn she was permitted to give her account of the defendant's conduct with her.

Substantially the same procedure was followed when defendant's daughter was called in his defense. She was questioned about her belief in God, her knowledge of the difference between right and wrong, her duty to tell the truth, and the divine retribution which would come upon her if she failed in that duty. The court then said:

"All right, Sandra is qualified."

She was not sworn.

Failure to administer the oath to these witnesses, children though they be, was error. The very purpose of the interrogation is to ascertain if such immature persons understand

the nature, quality and burdens of the oath. If so, they qualify as witnesses and must be sworn or affirmed (if the circumstances require that ritual). The fact of childhood does not alter that requirement. State v. Levine , 109 N.J.L. 503, 511 (Sup. Ct. 1932); Williamson v. Carroll , 16 N.J.L. 217 (Sup. Ct. 1837); Anderson v. Barnes , 1 N.J.L. 203 [ Reprint 235] (Sup. Ct. 1793); State v. Brewer , 1 W.W. Harr. 363, 114 A. 604 (Del. Ct. Gen. Sess. 1921); Wigmore on Evidence (3 d ed.), § 1824(2), p. 308.

This rule was announced as far back as 1779 in King v. Brasier , 1 Leach 199, 1 East, Pleas of the Crown 443, 168 Eng. Rep. 202. There the defendant was indicted for assault with intent to rape an infant under seven years of age. The report of the case says:

"The Judges assembled at Sergeants' Inn Hall, 29 April 1779, were unanimously of opinion that no testimony whatever can be legally received except upon oath; and that an infant, although under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath * * * for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if they are found incompetent to take an oath, their testimony cannot be received."

Cf. Rex v. Antrobus , 2 D.L.R. 55 (B.C. Ct. App. 1947); Rex v. Court , 3 D.L.R. 223 (P.W.I. Sup. Ct. 1947).

Commenting on this opinion, Wigmore wrote:

"There was a time when it was doubted whether an infant was in all cases to be rejected when incapable of understanding the oath. But in R. v. Brasier it was settled that there should be no exception." § 1825.

We turn now to a consideration of the assignments of error. The infant complainant asserted that she came to the defendant's home seeking his daughter, they being playmates. Only the defendant was present at the time. He invited her

to sit on his lap and when she did so he put his hand inside her clothes and fondled her private parts. Immediately thereafter she went home and told her mother what had happened. On cross-examination defendant elicited the ...


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