Opinion
46400.
ARGUED JUNE 28, 1971.
DECIDED SEPTEMBER 7, 1971.
Child molestation. Fulton Superior Court. Before Judge Williams.
Atkins Atkins, Dorothy D. Atkins, for appellant.
Lewis R. Slaton, District Attorney, Carter Goode, William M. Weller, Joel M. Feldman, for appellee.
The defendant was indicted, tried and convicted of the offense of child molestation. His motion for new trial was overruled and he appealed to this court, enumerating as error the admission of testimony of a five-year-old child on the ground that she was incompetent as an infant under Code § 38-1607, which provides that "children who do not understand the nature of an oath, shall be incompetent witnesses." The only evidence relating to her competency in this respect was as follows: "Q. Do you know about God? A. (Nods affirmatively). Q. What will God do if you tell a story? A. I don't know . . . Q. Do you know the meaning of telling the truth and telling a story? A. (Nods negatively) . . . Q. Do you know what it means to tell the truth? A. (Smiles). Q. Have you ever told a story? A. (Nods negatively). Q. You have not. You tell the truth? A. (Nods affirmatively). Q. What happens if you tell a story? A. (Shrugs shoulders). Q. Do you get a whipping? A. (Smiles)." While this examination and the answers given thereto might show that the witness had knowledge there was a difference between telling the truth and not telling the truth, it does not show that she had any knowledge that telling the truth was right and telling an untruth was wrong. Under these circumstances, it is our opinion that the trial judge erred in finding the witness competent. See in this connection Page v. State, 120 Ga. App. 709 ( 172 S.E.2d 207); Johnson v. State, 76 Ga. 76; Bell v. State, 164 Ga. 292 ( 138 S.E. 238); Young v. State, 72 Ga. App. 811 ( 35 S.E.2d 321); Gordon v. State, 186 Ga. 615 ( 198 S.E. 678); Reid v. Moyd, 186 Ga. 578 ( 198 S.E. 703); Frasier v. State, 143 Ga. 322 (2) ( 85 S.E. 124); Vickery v. State, 48 Ga. App. 851 (2) ( 174 S.E. 155); Edwards v. State, 162 Ga. 204 ( 132 S.E. 892); Horton v. State, 35 Ga. App. 493 ( 133 S.E. 647); Brewer v. James, 76 Ga. App. 447 ( 46 S.E.2d 267).
Judgment reversed. Bell, C. J., and Deen, J., concur.