Commonwealth v. Robinson

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: ALLEN, J.
• Citation: Commonwealth v. Robinson, 165 Mass. 426, 43 N.E. 121 (Mass. 1896)
• Decision Date: 29 February 1896
• Parties: COMMONWEALTH v. ROBINSON.

165 Mass. 426

43 N.E. 121

COMMONWEALTH v. ROBINSON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 29, 1896

At the trial in the superior court, before Robert R. Bishop, J., the defendant objected to the indictment because it alleged that Charles I. Robinson made the assault and later on charged the assault as being made by "him the said Charles Robinson." Defendant also objected to the evidence of the child, on the ground of incompetency, by reason of the fact that she was but 5 years and 9 months old. The defendant was convicted, and excepted. The other material facts appear in the opinion.

COUNSEL

Fred N. Wier, Dist. Atty., for the Commonwealth.

Clarence W. Rowley, for defendant.

OPINION

ALLEN J.

1. The words "the said Charles Robinson," in the latter part of the indictment, must necessarily refer to the Charles R. Robinson who had been mentioned in the earlier part of the indictment, and the motion to quash was rightly overruled.

2. 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. Of course, upon the bill of exceptions, we have not to consider how much weight might properly be given to her testimony. She was a little over 5 years and 5 months old at the time of the alleged assault and a little over 5 years and 9 months old at the time of the trial. In Wheeler v. U.S., 159 U.S. 523, 16 Sup.Ct. 93 (a case which has come to our notice since the arguments), a new trial was refused where a child, younger at the time of the occurrence, and at the time of the trial, had been allowed to testify; and in that case there had also been a longer interval between the time of the occurrence and the time of the trial. That case is fully in point, and many recent decisions are cited. See, also, Com. v. Lynes, 142 Mass. 577, 8 N.E. 408; McGuire v. People, 44 Mich. 286, 6 N.W. 669; Johnson v. State, 61 Ga. 35.

3. The defendant further objects to the admission of the testimony of Hewitt, the officer. The substance of this testimony appears to have been that he arrested the defendant, and, on the way to the police station, the defendant told him that he was not in Everett on August 2d, but was on August 1st and 3d; that the defendant was at no time told that anything said by him might be used as evidence against him; and that, when accused by witness of assaulting children in Everett defendant denied his guilt. The admission by defendant that he was in Everett, on August 1st and 3d was competent in support of the indictment. It is true that the indictment charged the assault as having been committed on August...