People v. McNair

21 Wend. 608

• Court: New York Supreme Court
• Decided: October 15, 1839
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

The court erred. The lad was of tender years, and if it had turned out, as it might, that he was wholly ignorant of the nature of an oath, it would have been the duty of the court to have rejected him as a witness, or at least before permitting him to testify, to have instructed him on the subject.

One of the justices assigned as a reason for the decision of the court, that he had before examined the witness as to his competency, and was satisfied; but it does not appear when or where he so examined him. The defendant was entitled to have the examination in his presence, on the trial before all the justices.

Conviction quashed.