nor did he state anything from which it could be inferred that he had a sufficient sense of the danger and wickedness of false swearing, or that he comprehended and appreciated the sanctity and obligation of an oath.

Counsel for the defendant objected to the admission of the evidence of his statements as made to Sheriff Hervey and to George Brooks. The confession to Brooks was made while the defendant was in jail, and that to the sheriff was made at a later date in the jail yard. The record shows that both statements were voluntarily made; and the statements were properly admitted in evidence: Hammons v. State, 73 Ark. 495, 108 Am. St. Rep. 66, 84 S. W. 718, 68 L. R. A. 234, 3 Ann. Cas. 912; Youngblood v. State, 35 Ark. 35, and cases cited. We have carefully examined the instructions given by the court, and find them to be correct.

Counsel for defendants urge upon us as a ground for reversal certain remarks made by the prosecuting attorney in his argument to the jury, but this assignment of error will not likely occur on a new trial, and need not be considered.

For the error in holding that the boy Will Howard was competent to testify under the examination as disclosed by the record, the judgment will be reversed, and the cause remanded for a new trial.

"McCulloch, C. J., Dissenting. I dislike to record a dissent in a case involving human life, but it seems to me that the court, in holding the admission of the child's testimony to be reversible error, is not only making a mistake, but is taking a backward step in the law of evidence, which is a field in which there has been a more wholesome growth than in any other branch of the law. The test of the competency of children under the age of fourteen, as witnesses in criminal cases, is that they must be found on examination 'to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath': Flanagin v. State, 25 Ark. 92. This must be left largely to the sound discretion of the trial judge, who has an opportunity to see the child and judge of the degree of intelligence which it possesses. An appellate court should not disturb the trial court's exercise of this discretion unless it clearly appears to have been abused. I understand this to be the rule universally followed by all appellate courts. "In the present case the learned trial judge vouched for the competency of the child's testimony by his finding as to the latter's intelligence and understanding of the nature of an oath, and there is nothing in the record to show that the finding was erroneous. The child in his examination declared his belief that an oath meant to tell the truth, and that it is wrong not to do so. The court heard these declarations, and observed from the appearance of the child not only its degree of intelligence, but the sincerity with which they were made. We ought, therefore, to accept the finding of the trial judge, and in failing to do so we discard his exercise of discretion, when no abuse appears. It is true, the child said he did not know what would be done to him if he failed to tell the

truth. Whether he understood the question to refer to future punishment or to that to be immediately inflicted by the court for perjury, we do not know, but doubtless the trial judge understood what the child meant.

"The authorities on this question are collected in a note to the case of State v. Meyer (135 Iowa, 597, 124 Am. St. Rep. 291, 113 N. W. 322), in 14 Ann. Cas. 1, and I think that, according to the great weight of authority, both English and American, the majority has reached the wrong conclusion in reversing the judgment on this point. I understand the effect of the decision to be that, before we can sustain the ruling of a trial court in admitting the testimony of a child, the record must affirmatively show that the child took the oath under an immediate sense of responsibility to God. In other words, that his answers must affirmatively show that he has an intelligent conception of his responsibility to God and takes the oath under a sense of that responsibility. This is in conflict with the decision of this court in Flanagin v. State, 25 Ark. 92, where the test is declared to be sufficient intelligence and a capacity to comprehend the nature and effect of an oath. I think this is the only test approved by the great weight of authority.

"It seems to me that the court falls into error in holding that the record must affirmatively show the capacity of the child. In Wheeler v. United States, 159 U. S. 523, 16 Sup. Ct. Rep. 93, 40 L. ed. 244, Judge Brewer, speaking for the court on the admissibility of the testimony of a child witness, said: "This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous. . . . . So far as can be judged from the not very extended examination which is found in the record, the boy was intelligent, understood the difference between truth and falsehood, and the consequences of telling the latter, and also what was required by the oath which he had taken. At any rate, the contrary does not appear.'

"The best and most concise statement of the rule, and one fully sustained by the authorities, is found in State v. Reddington, 7 S. D. 368, 64 N. W. 170, as follows: 'No witness, whether child or adult, is required to be able or willing to discuss with the court or counsel either the fact or condition of a future state. He may even have no established views of general theology. He is only required to be able to distinguish the moral difference between right and wrong; and, when the law or the court says he must understand the obligation of an oath, it means only that, possessing such ability to discriminate, he understands that his position as a witness imposes upon him the moral and legal duty to tell only what is true. Whether a witness is so qualified is left in the first instance to the discretionary judgment of the trial court, after informing itself by proper examination.'

"The Kentucky court of appeals, in a very recent case, in passing on the ruling of a trial court as to the testimony of a child, said: 'His evidence was clear, and showed mental capacity, understanding and memory sufficient to qualify him. It appears that he was conscious that the oath bound him to speak the truth, and he know the difference between telling the truth and telling a lie. It did not disqualify him as a witness that he was not able to define the legal obligation of an oath. Whether his religious training had been so developed that he comprehended his responsibility to God for lying was not made clear, nor was it material as affecting his competency': Bright v. Commonwealth, 120 Ky. 298, 117 Am. St. Rep. 590, 86 S. W. 527.

"The same court in an earlier case said: "The intelligence of the witness is the true test of competency, and that must be determined by the court, while the weight to be given to the evidence is for the jury. A child may be ignorant of "God" and of the evil of lying and of the punishment prescribed therefor, both here and hereafter, and yet have sufficient intelligence to truthfully narrate facts to which its attention is directed': White v. Commonwealth, 96 Ky. 180, 28 S. W. 340.

"The Pennsylvania court, in a case of this kind, said: 'It seems to us that the crude and shadowy beliefs of small children concerning God and the hereafter are so uncertain that the tests, based upon religious instruction, even though given by the trial judge himself, are of little or no moment, and should rather be discarded than followed in this enlightened age. The whole purpose of the trial is to ascertain the truth, and the oath is in pursuance of that object. If the witness understands that this is demanded and that punishment will follow its violation, it is sufficient. It is the substance, instead of the form, that is required; and if we secure this, there would seem to be little benefit in pursuing the shadow. A witness may easily show intelligence and understanding, without being asked each perfunctory question.'

"The evidence in the present case shows that the defendant is guilty of the horrible crime of which he was convicted. The testimony of the child witness was heard by the trial judge, who pronounced him of sufficient natural intelligence and of sufficient capacity to comprehend the nature and effect of an oath. The trial was a fair one, and the record is, I think, free from error, and the judgment should be affirmed."

The Competency of Children as Witnesses is the subject of a note to State v. Meyer, 124 Am. St. Rep. 295.

FRANKS v. HOLLY GROVE.

[93 Ark. 250, 124 S. W. 514.]

MUNICIPALITY-Liability for Enforcement of Void Ordinarce. A municipal corporation is not liable for the acts of its mayor and marshal in enforcing by unlawful imprisonment a void ordinance, since they are acting in a public and governmental capacity. (p. 86.)

Manning & Emerson, for the appellant.

Thomas & Lee, for the appellee.

251 WOOD, J. This appeal is to determine whether an incorporated town is liable in damages for the acts of its mayor and marshal in enforcing by unlawful imprisonment a void ordinance of the town making it a misdemeanor for persons fifteen years of age and under to get on or off any moving trains within the corporate limits, such persons not being passengers. What these officers did in connection with the arrest, conviction and imprisonment of appellant was in their capacity as public officers. 252 They acted without malice toward appellant. Although the ordinance was illegal and void as to minors under the age of twelve years, still the appellee is not liable for the acts of its officers in seeking to enforce it, for the reason that the officers were acting in a public and governmental capacity. The functions they performed were of a public, not private, nature: 28 Cyc. 1257. As early as the case of Trammell v. Russellville, 34 Ark. 105, 36 Am. Rep. 1, we held: "For acts done by them in their public capacity, and in discharge of their duties to the public, cities and towns incur no liability to persons who may be injured by them. Neither for the act of the council in passing an illegal ordinance, nor for that of the mayor in issuing a warrant of arrest for the violation, nor for that of the marshal in arresting the offender under it, is a town liable to him." And as late as Collier v. Fort Smith, 73 Ark. 447, 84 S. W. 480, 68 L. R. A. 237, we said: "Towns and cities are not answerable for the acts or omissions of their officers or agents while acting for the state or sovereign in public or governmental capacity': See, also, Gray v. Batesville, 74 Ark. 519, 86 S. W. 295. Whatever may be the rule in other jurisdictions, the above is the established doctrine of this court. It has good reason and authority to sustain it, and we therefore adhere to it. See other authorities cited in appellee's brief.

The judgment therefore is affirmed.

That a City is not Liable for the Acts of Its Officers or Agents in enforcing a void ordinance, see the note to Goddard v. Inhabitants of Harpswell, 30 Am. St. Rep. 376; Simpson v. City of Whatcom, 33 Wash. 392, 99 Am. St. Rep. 951.

'ADAMS v. STATE.

[93 Ark. 260, 124 S. W. 766.]

SEDUCTION-Impeachment of Prosecutrix.-Where the proseeutrix in seduction testifies in her examination in chief that she has never had intercourse with anyone but the defendant, the testimony of another man that he has had intercourse with her since the time of the alleged seduction is admissible to contradict or impeach her. (p. 88.)

SEDUCTION—Resemblance of Child to Defendant. The prosecuting witness in seduction may testify that her child resembles the defendant. (p. 89.)

Ben Cravens, for the appellant.

H. L. Norwood, attorney general, and C. A. Cunningham, assistant, for the appellee.

261 BATTLE, J. Will Adams was indicted for seducing Rowena Hamblin, and convicted. He prosecutes an appeal to this court from this conviction.

Rowena Hamblin testified in the trial of the defendant that he, in the month of October, 1908, obtained carnal knowledge of her by virtue of a false promise of marriage made to her by him; and of this intercourse a child was born. In her examination in chief she testified that she never had sexual intercourse with any other man at any time or anywhere. Defendant offered to prove that Charles Abels had sexual intercourse with her since the last day of November, 1908, which is since the day of seduction, at different times, for the purpose of contradicting her and thereby impeaching her credibility; and the court refused to allow him to do so.

The prosecuting witness was allowed to testify, over the objection of the defendant, that the child resembled him.

In Butler v. State, 34 Ark. 480, it is said: "In order to avoid an interminable multiplication of issues, it is a settled rule of practice that when a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question. 262 The test of whether a fact inquired of in cross-examination is collateral is this: Would the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea? This limitation, however, only applies to answers on cross-examination. It does not affect answers to the examination in chief: 1 Wharton on Evidence, sec. 559."

In McArthur v. State, 59 Ark. 431, 27 S. W. 628, "the indictment, in substance, charges that appellant slandered one Pearl Jones by falsely uttering and publishing about her words which in their common acceptation amounted to charge the said Pearl Jones with having committed fornication and adultery with the sons of appellant. On the trial of the case,