State v. Labriola

• Citation: 75 N.J.L. 483,67 A. 386
• Parties: STATE v. LABRIOLA.
• Decision Date: 15 July 1907
• Court: United States State Supreme Court (New Jersey)

67 A. 386

75 N.J.L. 483

STATE

v. LABRIOLA.

Court of Errors and Appeals of New Jersey.

July 15, 1907.

Error to Court of Oyer and Terminer, Atlantic County.

Joseph Labriola was convicted of murder in the first degree, and brings error. Affirmed.

Clarence L. Cole, for plaintiff in error. J. E. P. Abbot and J. Hampton Fithian, for the State.

MAGIE, Ch. Labriola, the plaintiff in error, was convicted of the crime of murder in the first degree in a trial before the Atlantic county oyer and terminer. He sued out an ordinary writ of error, which has brought to this court for review the judgment of conviction. The writ has brought up the record with a bill of exceptions. The entire record of the proceedings has not been returned with the writ, nor have the causes relied upon for relief or reversal been filed or served upon the Attorney General or prosecutor, as required by sections 136 and 137 of the criminal procedure act of 1898 (P. L. p. 915). The plaintiff in error must therefore be confined to the errors assigned. State v. Young, 67 N. J. Law, 223, 51 Atl. 939; State v. Lyons, 70 N. J. Law, 635, 58 Atl. 398. Those assignments which have been argued will be considered.

The bills of exception show that two infants, one of the age of 9 years and the other of the age of 11 years, were admitted to be sworn and testified in the cause. An exception was sealed to the ruling admitting them. Every person over the age of 14 years is presumed to be competent to be sworn and to testify in any cause civil or criminal. Such presumption will justify his admission as a witness, unless it is overcome by proof. Children under the age of 14 years are not thus admissible as witnesses. There is no presumption of admissibility in their case; but they are to be admitted, if they are adjudged to possess mental capacity and moral responsibility. This adjudication is to be made upon a preliminary examination by the trial court to which they are offered as competent witnesses. 1 Greenleaf's Evidence, § 367. With respect to their capacity, the trial court is able to discover its sufficiency in their examination. With respect to their moral responsibility, it has been frequently said that it depends upon their understanding "the nature of the oath." It might puzzle many adult witnesses to explain the nature of an oath. But it is well settled that if infants under the age of 14 years have a clear apprehension of the penalties which may fall upon them in this life, and the punishment which will await them after death if, upon being sworn as witnesses, they fail to testify truthfully, they are admissible, if mentally competent. The adjudication as to capacity and responsibility is to be made by the trial court. Its judgment is often said to be an exercise of judicial discretion. Whether that phrase properly describes the nature of the judicial act in admitting infant children as witnesses need not be determined....