State v. . Edwards

79 N.C. 648

• Court: Supreme Court of North Carolina
• Decided: June 5, 1878
• Status: Published

Opinion

Reabe, J.

Formerly the age at which infants might be examined as witnesses was almost arbitrary. They were not regularly admissible under fourteen, subject to exceptions. At one time it was a general rule that none could be admitted under nine years, very few under ten. Gilb. Ev. 144; 1 Hale P. C. 302; 2 Ib. 278; 1 Phil. Ev. But of .late years since the means and opportunities for the early cultivation of the intellect have multiplied, a more reasonable rule has been adopted, and age is not the test, but the degree of understanding which they possess, including their moral and religious culture. 1 Phil. Ev., 1 East P. C. 448; 1 Leach 190; Roscoe Cr. Ev. 106 n. So formerly, deaf and •dumb persons were classed with idiots, and were incapable of crime, and incompetent as witnesses; but since the facilities for educating them, the rule is abrogated.

In the case of infants where there was sufficient capacity to understand the transaction and to communicate it, but not sufficient moral and religious impression to comprehend the obligation of an oath, time,has been allowed to make the impression and to cultivate the conscience. 1 Leach, 199, 430.

There being now no arbitrary rule as to age, and it being a •question of capacity, and of moral and religious sensibility in any given case whether the witness is competent, it must •of necessity be left mainly if not entirely to the discretion of the presiding Judge. State v. Manuel, 64 N. C. 601. It ■may be stated however that a child of tender years ought to be admitted with great caution; and where there is doubt it ought to be excluded. The formal answers to the usual questions,' — -who made you? .what will become of you if you swear to a lie ? and the like, are so easily taught, that much more ought to be required. The capacity of the child may be ascertained not only by examining it, but other persons who have had the care of it.

Although the capacity of the child in this case is not for our ■consideration, yet it is gratifying to find upon our 'examination of the testimony, that it was sensible and clear, and that it was corroborated where corroboration could be expected by other evidence. We can not say that there was error in admitting it.

The objection of the defendant, — that His Honor did not •caution the jury not to allow themselves to be tampered with during recess, has no force in it. If the jury had been tampered with, it might have vitiated their verdict, whether they had been cautioned or not; but as they were not tampered with, their verdict is good.

No error. Judgment affirmed.