Commonwealth v. Ramage

58 N.E. 1078, 177 Mass. 349, 1901 Mass. LEXIS 645

Opinion

Knowlton, J.

The only question in this case is whether the judge was bound to exclude the testimony of the witness Helen C. Tuttle, on the ground that she was incompetent to testify by reason of infancy.

In the opinion in Commonwealth v. Robinson, 165 Mass. 426, we find the following language: “ The law fixes no limit of age which children must have reached in order to be competent as witnesses; and unless for manifest error we cannot revise the decision of the presiding justice that the little girl in this case had sufficient intelligence and sufficient sense of the duty of telling the truth to enable her to testify. No such error appears in the present case, although there is a certain incongruity in administering an oath to one who cannot be convicted of perjury. Nevertheless, the fact that the child was- too young to be convicted of perjury is not decisive against her competency.” The girl'who was permitted to testify in that case was younger than the witness in this case, and the decision covers the question now before us.

In Commonwealth v. Reagan, 175 Mass. 335, it was decided that the presiding justice must in the first instance determine whether a child is competent -to testify. In Wheeler v. United States, 159 U. S. 523, a child younger than this witness was permitted to testify, and it was held that there was no error in admitting the evidence.

Exceptions overruled.