Oliver v. Commonwealth

• Decision Date: 19 July 1883
• Citation: 77 Va. 590
• Parties: OLIVER v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

77 Va. 590

OLIVER v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

July 19, 1883

(Absent, Fauntleroy, J. )

Error to judgment of circuit court of Bedford county, rendered March 2d, 1883, affirming judgment of county court of said county, sentencing John W. Oliver to imprisonment in the pententiary for a term of three years, as accessory before the fact to the crime of feloniously burning a depot of the Richmond and Alleghany Railroad Company, in said county.

The evidence tended to show that Oliver employed two boys, aged respectively, nine and fourteen years, with whom he had been intimate, to burn said depot, against the keeper whereof he had a grudge. After the younger had been arrested, he told the officer that Oliver had employed him and the older boy to burn the depot, and that they did so. At a former trial each had been examined by the court touching his knowledge of the obligation of an oath, and the court being satisfied as to their competency, admitted them as witnesses against Oliver. The jury did not agree on a verdict, and were discharged. At a subsequent trial during the same term, the prisoner's counsel moved the court to reë xamine these witnesses as to their knowledge of the obligation of an oath, which the court declined to do. He then moved to exclude them (1.) Because they showed themselves to be " approvers," and (2.) Because they showed themselves to be the principal felons, and charged the prisoner as accessory before the fact, and (3.) Because their statements criminating the prisoner, made after the object of the conspiracy was ended were evidence only against themselves, which motion was also overruled.

E P. Goggin, for the prisoner.

Attorney-General F. S. Blair, for the commonwealth.

OPINION

LEWIS, P.

The first question to be determined (and which is the subject of the first, second, and fourth bills of exception) relates to the competency as witnesses of John Williams and Preston Matheny, the alleged principals in the felony charged in the indictment, and aged, respectively, nine and fourteen years. At the trial they were called and testified for the commonwealth. Their competency is denied by the plaintiff in error, on the ground of their confessed guilt of the felony charged, and because of their want of understanding of the nature and moral obligation of an oath.

In support of the first objection, counsel rely, in part, on the statute, which provides that, " approvers shall not be admitted in any case." Code 1873, chapter one hundred and ninety-five, section eighteen. But no such question arises in the present case. The English doctrines relating to the admission of approvers seem never to have become incorporated into the laws of this state, and the ancient practice in England, which was confined to capital cases, has been long disused. 4 Bl. Comm. 330; 1 Bishop on Crim. Procedure, sec. 1072, et seq.; Dabney's Case, 1 Rob. Rep. 696. Ordinarily, an accomplice is a competent witness on the trial of his associate, provided he has not been previously sentenced and convicted of an infamous offence, which is not the case here. And by statute in Virginia his incompetency by reason of interest has been removed, unless jointly tried with his associate. Code 1873, chapter one hundred and ninety-five, section twenty-one.

It is an equally well settled rule of evidence that an infant under fourteen may be examined as a witness, provided he sufficiently appears to understand the nature and moral obligation of an oath; for competency depends not upon age but understanding. At the age of fourteen, every person is presumed to have common discretion and the necessary understanding of the obligation of an oath, until the contrary appears; but under that age it is not so presumed.

In this case, without stopping to review the evidence, it is sufficient to say that the competency of the witness Williams is satisfactorily established, and that sufficient evidence does not appear in the record to establish the incompetency of the witness Matheny. The testimony of both was, therefore, properly admitted by the county court.

The third bill of exceptions raises the question, whether a witness, whose competency has...