State v. Williams , 13 N.C. App. 619 ( 1972 )

GRAHAM, Judge.

Defendant concedes that the competency of a child to testify as a witness is a matter resting in the sound discretion of the trial court. State v. Bowden, 272 N.C. 481, 158 S.E. 2d 493; State v. Turner, 268 N.C. 225, 150 S.E. 2d 406. He argues, however, that the court’s finding in this case that the seven-year-old witness was competent amounts to an abuse of discretion. We do not agree.

Responses of the child to questions asked on voir dire indicate that she had a sufficient understanding to apprehend the obligations of her oath and that she was capable of giving a correct account of the events which she witnessed on 21 April 1971. In addition, the trial judge personally observed the demeanor of the child and properly considered this in concluding that she was a competent witness. “There is no age below which one is incompetent, as a matter of law, to testify. The test of competency is the capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the jury in determining the truth of the matter as to which it is called upon to decide. This is a matter which rests in the sound discretion of the trial judge in the light of his examination and observation of the particular witness.” State v. Turner, supra at 230, 150 S.E. 2d at 410.

Defendant further contends that the court erred in permitting the solicitor to ask the seven-year-old witness leading questions. The record reflects the following:

“All right, now, Coya, on April 21, 1971, tell the Court

Mr. Todd: I object to his leading questions.

The Court: Well, in light of the tender years of the child, the Court will permit leading questions to be put to her. Objection overruled.

Mr. Todd: Exception.

Exception No. 2.”

The allowance of leading questions is a matter entirely within the discretion of the trial judge, and his rulings will not be reviewed on appeal in the absence of a showing of an abuse of discretion. State v. Staten, 271 N.C. 600, 157 S.E. 2d 225. “Leading questions are permissible when ... a child of tender years ... is testifying and his attention cannot otherwise be directed to the matter in question.” Stansbury, N.C. Evidence 2d, § 31 at 59.

We find no abuse of discretion on the part of the trial judge in permitting the solicitor to ask leading questions of the seven-year-old witness. Moreover, it is noted that except for the question which prompted defendant’s objection, no questions by the solicitor are set forth in the record, all of the child’s testimony being in the narrative. In view of this, it is impossible to tell whether the solicitor actually asked leading questions as the court had indicated he could do.

Defendant’s final contention is that the court erred in overruling his motion to dismiss the charges as of nonsuit. This contention is obviously without merit.

No error.

Chief Judge Mallard and Judge Hedrick concur.