Com. v. Lynes

• Decision Date: 23 October 1886
• Citation: Com. v. Lynes, 142 Mass. 577, 8 N.E. 408 (Mass. 1886)
• Parties: COMMONWEALTH v. LYNES.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 577

8 N.E. 408

COMMONWEALTH v. LYNES.

Supreme Judicial Court of Massachusetts, Hampshire.

October 23, 1886

COUNSEL

Chas G. Delano, for defendant.

The admissibility of the evidence of a child under 14 depends upon the sense and reason it entertains of the danger and impiety of falsehood.Com. v. Hutchinson,10 Mass 224;Brasier's Case, 1 Leach, 199; Phil.Ev. (9th Ed.) 6.This test of capacity is to be found as a fact by the court below, and the existence of a statute which dispenses with the necessity of an oath does not affect it.The knowledge of the nature and obligation of the oath must exist independently of the exigencies of the trial, and it cannot be supplied for that purpose by special instruction, through the agency of a Christian minister or other moral functionary.The admission of the witness to testify, not found or rendered competent except in this manner, is the subject of exception, as involving an erroneous view of the law.Com. v. Hills,10 Cush. 532.See PATTERSON, J. in Rex v. Williams, 7 Car. & P. 320.But no case is found in that common law from which ours is derived, where instruction has been held proper when the trial has commenced, and the jury sworn, and the prisoner put on his trial, before the incompetency is discovered; and, if a conviction cannot be obtained without the evidence of a child thus instructed, it has been held that the judge cannot discharge the jury, to have the instruction given, but must direct an acquittal.SeeWade's Case, 1 Moody, Cr.Cas 86;1 Phil.Ev. (8th Ed.) 5; B. Alderson in 1 Phil.Ev. (10th Ed.) 10;Rex v. Nicholas, 2 Car. & K. 246.In the American cases in which the point has arisen the same view is adopted.Jones v. People, 6 Park.Crim.R. 126;Carter v. State,35 Amer.Rep. 5.It is not laid down in any authority that the case can be postponed, or the incompetency cured, and the party instructed, except when the incompetency was ascertained, and an application to instruct was made, before the trial commenced.Starkie, Ev. (4th Ed.) 117;1 Phil.Ev. (10th Ed.) 9;White's Case, 1 Leach, 430, note a;Rex v. Milton, 1 Car. & K. 61;2 Bac.Abr. 577, note 1;Rex v. Baylis, 4 Cox, C.C. 23.

The evidence to corroborate was not such as, of itself, and independently of the evidence of the accomplice, to lead to the inference of the commission of a crime, or that the defendant had committed it.Roscoe, Crim.Ev. (7th Ed.) 130;Com. v. Bosworth,22 Pick. 397.It was wholly circumstantial, and the relation of the parties was such as to rebut any necessary inference of guilt, (Roscoe, Crim.Ev.[ 7th Ed.]130;2 Greenl.Ev. § 40;) and the evidence of the child's condition at a period six weeks subsequent to the alleged crime was inadmissible for the same reason that it was not connected with the act of the defendant, either by showing that her condition was the same as then, or that it was the result of the act of the defendant.Com. v. O'Connor,107 Mass. 219;Hosmer v. Oldham,122 Mass. 551;Com. v. Page, 6 Gray, 361;Com. v. Holmes,127 Mass. 424.

E.J. Sherman, Atty. Gen., for the Commonwealth.

OPINION

GARDNER J.

1.The witness was 13 years old, and, when called to be sworn, the defendant objected to the administration of the oath to her, upon the ground that she was ignorant of its nature and obligation.The presiding judge asked her some questions, when the district attorney withdrew her, and she was not called until the next day, when she was offered as a witness, and, upon examination, found competent.It appeared that since the last adjournment of the courtshe had been instructed by a Christian minister.The defendant objected to her being sworn, because, as he contended, the knowledge of the nature and obligation of an oath must exist independently of the exigencies of the trial, and that it cannot be supplied, for that purpose, by special instruction.

The practice has been various upon this question.In Rex v. Williams, 7 Car. & P. 320, it was held that, before a child is examined as a witness, the judge must be satisfied that the child feels the binding obligation of an oath, from a general course of religious education; and the effect of the oath on the conscience of the child should arise from religious feelings of a permanent nature, and not from instruction recently communicated, for the purposes of a trial.In the course of the trial, the counsel for the king states that it was every day's practice to put off a trial in order that a witness may be instructed as to the nature of an oath; citing Rex v. Wade, 1 Moody, Cr.Cas. 86.The oath, however, was refused the witness.This case has been criticised and has not generally been followed.In Rex v. Nicholas, 2 Car. & K. 246, POLLOCK, C.B., refused to put off the trial in order that a child of six years of age might receive instruction; but said "that there may be cases where the intellect of the child is much more ripened, as in the cases of children of nine, ten, or twelve years old, for example, where their education has been so utterly neglected that they are wholly ignorant on religious subjects.In those cases a postponement of the trial may be very proper; but where the infirmity arises from no neglect, but from the child being too young to have been taught;" and that the judge should act in each case according to his discretion.In the English practice it is usual for the judge to examine an infant as to his competency before going before the grand jury, or before proceeding to trial, and, if found incompetent for want of proper instruction, in his discretion, to put off the trial in order that the party may, in the mean time, receive such instruction as may qualify him to take an oath.Russ.Crim.Ev. 114;2 Russ.Crim.Ev. 590; 1 Starkie, Ev. (2d Ed.) 94;Rex v. White, 1 Leach, 430;2 Bac.Abr. 577;Rex v. Milton, 1 Car. & K. 61;Rex v. Baylis, 4 Cox, C.C. 23.The same practice is laid down in Greenl.Ev.(14th Ed.)§ 366, and cases cited.It is left discretionary with the court, where a principal witness offered is not sufficiently instructed in the nature of an oath, to put off the trial that this may be done.

In the case at bar the witness, when first offered, was examined by the judge.She replied, to questions put to her, "that she understood that the oath was to tell the truth, and that she would be punished if she did not tell the truth, after taking it; but she did not know how, or by whom, she would be punished."The witness was then withdrawn.The judge was not asked to have the witness withdrawn, so that she might be...