#### STATE v. ROBERT MERRITT.

(Filed 29 October, 1952.)

Criminal Law § 41a—

Whether a five-year-old child is competent to testify in a rape prosecution is a matter resting in the sound discretion of the trial judge, and where the evidence upon the *voir dire*as well as the child’s testimony upon the trial negates abuse of discretion, the ruling of the trial court that the child was a competent witness will not be disturbed on appeal.

Appeal by defendant from *Burney, J.,*and a jury, at May Term, 1952, of Pitt.

Criminal prosecution tried upon a bill of indictment charging the defendant with rape, in violation of Gr.S. 14-21 as rewritten, Chapter 299, Section 4, Session Laws of 1949.

The jury returned a verdict of guilty with recommendation of life imprisonment. Thereupon judgment was entered directing that the defendant be confined in the State’s Prison for the term of his natural life.

The defendant appealed, assigning errors.

*Attorney-General McMullan and Assistant Attorney-General Moody for the State.*

*Marvin V. Horton for the defendant, appellant.*

JOHNSON, J.

The prosecuting witness is a child, who at the time of her alleged ravishment was 4 years, 10 months and 5 days of age. She lived with her mother and other relatives in a downstairs apartment at a rooming house. The defendant, aged 28, had living quarters in an upstairs room at the same house. The gist of the testimony of the prosecu-trix is that the defendant picked her up from her seat on the porch and with his hand over her mouth carried her upstairs to his room and there effected the ravishment as charged. When she came back downstairs, her relatives and other roomers, seeing the physical signs and marks of her ravishment and acting upon information given by her, went upstairs and *364found tbe defendant in bis room lying across tbe bed. Officers were called. In tbe ensuing investigation, and also on later occasions, tbe prosecutrix identified tbe defendant as being the one who raped her. Her testimony was strongly corroborated by testimony of tbe officers and others respecting tbe condition of tbe bed and of defendant’s wearing apparel, some of which was found in tbe stove.

Tbe defendant, on tbe other band, firmly and unequivacally denied any and all connection with tbe alleged crime and offered substantial evidence tending to refute tbe incriminating testimony and circumstances relied on by tbe State. Tbe trial developed into a controverted issue of fact for tbe jury on sharply conflicting evidence. It would serve no useful purpose to relate tbe details of tbe sordid story which unfolded below.

Tbe defendant insists that the trial court erred in permitting tbe prose-cutrix to testify as a witness in tbe case. Her competency to testify was a matter resting in tbe sound discretion of tbe trial judge. *S. v. Gibson,*221 N.C. 252, 20 S.E. 2d 51; *S. v. Jackson,*211 N.C. 202, 189 S.E. 510, and cases there cited. See also Wigmore on Evidence, Third Edition, Vol. II, Sections 505, 506, 507, 508 and 509. Tbe rule is succinctly stated by *Reads, J.,*in *S. v. Edwards,*79 N.C. 648, bot. p. 650: “There being now no arbitrary rule as to age, and it being a question of capacity, and of moral and religious sensibility in any given case whether tbe witness is competent, it must of necessity be left mainly if not entirely to tbe discretion of tbe presiding Judge. *S. v. Manuel,*64 N.C. 601. It may be stated, however, that a child of tender years ought to be admitted with great caution; and where there is doubt it ought to be excluded.”

Here it appears that tbe trial court at tbe conclusion of a lengthy examination of tbe witness, conducted in tbe absence of tbe jury, ruled that she possessed tbe requisite qualifications to testify. A transcript of tbe examination appears in the record, from which it appears, among other things, that tbe witness related where she lived, who her relatives were, her concept of tbe Diety and responsibility for telling tbe truth, tbe details of tbe ravishment, and identified tbe defendant as being tbe perpetrator. Tbe *voir dire*examination of tbe witness sustains tbe ruling of tbe court below, as does tbe over-all tenor of her testimony later given before tbe jury. No abuse of discretion has been made to appear. See *S. v. Gibson, supra,*upholding tbe ruling of tbe lower court in permitting a girl a little less than six to testify in a rape case; and *S. v. Jensen,*70 Ore. 156, 140 P. 740, where tbe trial court was sustained in permitting a child of four to testify in a prosecution charging assault with intent to commit rape.

We have examined tbe rest of tbe defendant’s exceptive assignments of error and find them to be without substantial merit. A careful study *365of the record leaves us with the impression that no prejudicial error has been made to appear.

No error.