People v. Harris , 300 N.Y.S. 848 ( 1937 )

Judgment of the County Court of Nassau county convicting defendant of the crime of assault in the second degree, and order denying motion for a new trial, reversed on the law and a new trial ordered. Appeal from intermediate orders dismissed. The prosecution’s case was wholly dependent upon the testimony of two young girls whose ages were ten and eleven years respectively. Section 392 of the Code of Criminal Procedure imposes upon the court the duty of determining whether or not the oath should be administered. The court did not administer the oath to either although he charged the jury that in his opinion they were of sufficient intelligence to understand what it means to tell the truth, and in his certificate of reasonable doubt he expressly stated that in his opinion they did understand the nature of an oath. The witnesses, therefore, should have been sworn. Although they were not sworn, the jury were given to understand that their testimony was as impressive as if they had been. This was substantial error. The duty of the trial court could not be delegated to the defendant on the theory that by not insisting upon the administering of an oath, he had waived its taking. Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur.