Appeal from the Circuit Court of Cook County; the Hon. WILLIAM
S. WHITE, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Two indictments were returned against the defendant, Willie Pearson, one charging him with taking indecent liberties with Cora Rambert, and the other charging him with taking indecent liberties with Beverly Rambert. The indictments were consolidated, and at a bench trial the defendant was found guilty of both charges. After a hearing in aggravation and mitigation, the trial court sentenced the defendant to not less than ten nor more than twenty years in the penitentiary.
The evidence on which the conviction was obtained was testimony by Beverly Rambert, who was ten years old at the time of the trial, and Marshall Rambert, who was eight. These two children, with Cora Rambert, were present when the defendant committed the criminal acts; however, at the time of trial, Cora was in a mental institution.
The defendant raises many issues on appeal; one, that he was not proved guilty beyond a reasonable doubt. He argues that the two children were not competent to testify against him, and that the trial court committed reversible error in allowing the children to testify over defendant's counsel's objection. Defendant further urges that the testimony of Beverly was uncorroborated and not clear and convincing. His reasonable doubt issue is thus twofold; first, he says the children should not have been allowed to testify, and that without their testimony there would have been no case against him. Second, that even if the testimony were accepted, it does not contain the clear narration required before a court can conclude that a defendant has been proved guilty beyond a reasonable doubt.
The defendant also asserts that the trial court committed reversible error when it refused to allow his pretrial motion to suppress certain evidence (two knives) which had been taken from his bedroom. Finally, he urges that the trial court unduly restricted the cross-examination of the children's mother, Geraldine Rambert.
The law is now well settled that it is not the age of the child, but rather the child's intelligence, ability to comprehend the meaning of an oath, and to speak the truth which determine if the child is competent to testify. In People v. Davis, 10 Ill.2d 430, 140 N.E.2d 675, at 436, the court said:
"If the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, she was competent. Not age, but the degree of intelligence of a child, determines the question of the child's competency. (Shannon v. Swanson, 208 Ill. 52; State v. Segerberg, 131 Conn. 546, 41 A.2d 101.)"
The appearance and conduct of the child on the witness stand are factors which assist in evaluating the child's intelligence. These are factors which are obviously not subject to review, and consequently, after a trial court has ruled on the competency of a child, that ruling will stand, unless it appears that there was a manifest abuse of discretion.
The defendant does not disagree with the above principles; however, he asserts that an abuse of discretion did occur when the trial court allowed both children to testify, since he believes that neither child was qualified to do so under the Davis test. The question as to whether or not a child witness is competent to testify in cases involving indecent liberties, presents a perplexing problem, since without such testimony there would rarely be convictions. Nevertheless, a man cannot be found guilty on incompetent testimony, and the State's "inability to produce it [proper evidence] cannot throw the door open to the receipt of improper evidence; . . . ." State v. Segerberg, 131 Conn. 546, 551, 41 A.2d 101, 103.
The defendant points out certain portions of the testimony of each child which he claims shows that the children were incompetent to testify. We have carefully reviewed all of the testimony given by the children, and have concluded that those isolated instances cited by the defendant in which he charged that the children were unresponsive or failed to comprehend certain questions, were very few, and in nearly all the instances the matters were cleared up by a simple rephrasing of a question. We have also found that several quotations brought to our attention are not damaging when put into context. For example, defendant's brief contains the following regarding the testimony of Beverly:
"When asked by the State's Attorney to identify the knife which was alleged to have been shown to her she first merely answers `Yes.' When asked `What color was it?' She answers, `It was a straight knife.'"
From this version it would appear that the child failed to understand the questions asked of her or was not intelligent enough to give responsive answers. However, when reading the actual ...