¶1On Application for Rehearing
¶2The Attorney General has asked us to extend this opinion so as to show the following from the transcript of evidence as to the testimony in chief of Lawrence Fountain recalled as a prosecution witness:
“Q. Lawrence I’ll ask you when you went out to Delphine’s that day— how you happened to find the whiskey there? A. Delphine’s little boy told me where it was.
“Q. Did you ask him where his mother’s whiskey was? A. Yes, sir.
“Mr. Owens: I object to that Your Honor,—
“The Court: I overrule the objection.
“Mr. Owens : We except.
“Q. The little boy told you where his mother’s whiskey was ?
“Mr. Owens: I object to leading the witness.
“The Court: I sustain the objection to leading the witness.
*95“Q. Did her little boy there tell you where her whiskey was ? A. Yes, sir.
“Mr. Owens: I object to the testimony as to what the 5 year old boy told him Your Honor on the ground it’s incompetent. It’s not shown the little boy was competent to,—
“The Court: I overrule the objection.
¶3From Carter v. State, 63 Ala. 52, it is abundantly clear that a child of tender years is incompetent as a witness until the condition is met, i. e., the trial judge fulfilling his duty to ascertain that the child comprehends the nature of an oath. 58 Am.Jur., Witnesses, § 134; 97 C.J.S. Witnesses § 58, notes 3, 4.
¶4Whatever might be said as to the shortcomings and tardiness of the objections of defendant’s counsel, and regardless of the discretion of a trial judge who has a child put before him as a witness (Code 1940, T. 7, §§ 439, 440), we consider the use of hearsay evidence here is wrong. Nor is Rule 45, Code 1940, Tit. 7 Appendix pertinent.
¶5Application for rehearing overruled.