Campbell v. Wilson

23 Tex. 252

Opinion

Wheeler, C. J.

Infancy is a personal privilege, or exemption, -and the burden of proof rests on the person setting up the privilege. The assertion of this principle was what was meant, by the charge of the court complained of; and it would doubtless be so understood. There is no reason to apprehend that the jury were misled by the charge.

The entries in the family Bible, offered to prove the date of the defendant’s birth, were excluded upon the ground, that there was better evidence accessible, his mother being within reach of the process of the court. In this, there was no error. It has been considered, that these entries stand on the ground of family acknowledgments, and that they are admissible, on account of their publicity, without proof that the entries were made by a member of the family. (1 Phil. Ev. 231, 216, n. 2; 2 Russ. & Mylne, 162.) But when better evidence is shown to be accessible, they are excluded, by the rule that excludes the secondary, when primary evidence can be obtained. When admitted, it is, in general, as the declaration of the persons by whom they were made. But they cannot be received where the father, mother, or other declarant, is present in court, or within reach of process. (1 McCord, 165.) Thus, the mother’s entry in the family Bible was held to have been properly rejected, she being in court. (Leg gett v. Boyd, 3 Wend. 376.) There is no error in the judgment, and it is affirmed.

Judgment affirmed.

Bell, J., did not sit in this case.