Day v. Day , 1876 N.H. LEXIS 145 ( 1876 )

FROM STRAFFORD CIRCUIT COURT. The decision of the judge who tried this cause in the court below must be deemed conclusive upon all questions of fact. Bowman v. Sanborn,25 N.H. 87; Burnham v. McQuesten, 48 N.H. 446; Higbee v. Bacon, 11 Pick. 428. The facts reported furnish evidence from which the judge was authorized to find that the charge of extreme cruelty, as defined in Harratt v. Harratt, 7 N.H. 196, and Poor v. Poor, 8 N.H. 307, on pages 315 and 316, was supported. There is no claim that the in treatment was drawn upon the libellant by her own misconduct.

The second question raised by the case arises from the admission of George R. Day, a child ten years of age, to testify. The ancient rule of the common law was, that no witness under the age of nine years should be sworn; but the later rule is, that if the child appear, after examination by the court, to possess a sufficient sense of the wickedness and danger of false swearing, he may be sworn, although less than nine years of age. The jury will give his testimony such credit as they shall think it deserves, considering his appearance and intelligence, and the circumstances of his testifying. Commonwealth v. Hutchinson, 10 Mass. 225. Mr. Greenleaf says — 1 Gr. Ev., sec. 367 — that there is no precise age within which children are excluded from testifying. Every person of the age of fourteen is presumed to have common discretion and understanding until the contrary appears; but under that age it is not so presumed. If, after inquiry, he appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he is admitted to testify, whatever may be his age. In Rex v. Pike, 3 Car. P. 598, the declaration in articulo mortis, made by a child four years of age, was rejected on the trial of an indictment for the murder of such child, Mr. Justice PARK remarking, — "It is quite impossible that she, however precocious her mind, could have had that idea of a future state which is necessary to make such a declaration admissible." On the other hand, Mr. Greenleaf says, it is not unusual to receive the testimony of children under nine, and sometimes, even, under seven years of age, if they appear to be of sufficient understanding, — and cites as authorities 1 East P. C. 442, Commonwealth v. Hutchinson,10 Mass. 225, McNolle's Ev. 154, and State v. Whittier, 8 Shefe 341; and it has been admitted even at the age of five years, — for which he gives Rex v. Brasier, 1 Leach Cr. Cas. 237, Bull. N. P. 293, S.C., and 1 East P. C. 443, S.C.

We are cited by the counsel for the libellee to the case of Rex v. Williams, 7 Car. P. 320, where, upon the trial of an indictment for murder, a daughter of the prisoner, aged eight years, was called as a witness on the part of the prosecution. After being examined as to the nature of an oath, she was rejected by PATTERSON, J., who said he must be satisfied that the child felt the binding obligation of an oath from the general course of her religious education. The effect of the oath upon the conscience of the child should arise from religious feelings of a permanent nature, and not merely from instructions confined to the nature of an oath recently communicated to her for the purpose of the trial. Previous to the happening of the circumstances to which the witness was offered to testify, she had no religious education whatever, and had never heard of a future state, and, as the learned judge remarked, "now has no real understanding on the subject." This probably furnishes the reason why he excluded her.

In Clements v. Marston, 52 N.H. 31, the history of legislation in this state removing disabilities from witnesses is given; and it is there stated that, under our statutes, neither interest nor infamy is any disqualification as a witness, whether as a party or otherwise. In view of the policy pursued by the legislature in removing disabilities from witnesses, and allowing their testimony to be weighed by the jury for what in their minds it might be worth, the rule, as laid down in Commonwealth v. Hutchinson, and in Greenleaf, supra, would not seem to be in conflict therewith.

When it appears that a child who is offered as a witness has not been sufficiently instructed in the nature of an oath, the court will, in its discretion, put off the trial that this may be done. 1 Gr. Ev., sec. 367. And that is what was done in this case: "the court instructed him upon that point, and received his testimony." We must presume that this was not done unless the court was satisfied that, after being instructed, he understood the nature and effect of an oath, and its binding obligation; — and, this being so, the witness was properly admitted to testify.