State v. Levy
| Decision Date | 29 June 1876 |
| Citation | 23 Minn. 104 |
| Parties | State of Minnesota v. Jacob Levy |
| Court | Minnesota Supreme Court |
[Syllabus Material] [Syllabus Material]
The defendant was tried in the district court for Winona county before Mitchell, J., on October 14, 1875, on an indictment for the larceny of $ 700, the property of one Wright. The latter, being called as a witness, testified that he was an insurance agent, and that early in the morning of September 14, 1874, he visited the shop of defendant, in which a great variety of goods was kept for sale, to advise him of the expiration of his insurance policy; that he then had in his pocket the money alleged to have been stolen, which consisted of bank-notes and treasury-notes, in a package enclosed in a yellow paper and tied with twine. His testimony further tended to show that he lost the package in defendant's shop at the time of this visit.
One Minnie Bohn, a child between eight and nine years old, was offered as a witness for the prosecution. The defendant's counsel objected that she was not of proper age, whereupon the following preliminary examination took place:
Question. Do you know what you are here for? Answer. Yes.
Q. Do you go to school? A. Yes.
Q. How long have you been to school? A. I don't know how long.
Q. You are eight years old, are you? A. Yes.
Q. Do you go to Sunday-school on Sunday? A. Yes.
Q. Do you know that it is not right to tell a lie? A. Yes.
Q. Do you know what they do to little girls that do tell lies? Do you think it would be right for you to come here and not tell the truth? A. No, ma'am.
Q. If you tell what you know about this Levy matter, would you tell just what was true? A. Yes, ma'am.
Q. Just what you saw, and nothing else? A. No, ma'am.
Q. Do you know that if you should tell a lie here in court, you would be punished? A. Yes, ma'am. (The last answer was taken after defendant's objection to the question, as incompetent, had been overruled, and an exception taken.)
Q. (Cross-examination.) Minnie, do you know the nature of an oath? Do you know what it means to take an oath? (Question repeated several times without response.)
Q. (By the court.) Could you tell these gentlemen what it means to be sworn in court? (No response.)
Q. How old are you, Minnie? A. Eight years old.
The Court. She is a pretty young witness to be sworn in a criminal case; but I will let her be sworn, and give the jury some instructions in regard to her testimony. The point is this, that if a person called as a witness understands that he is brought here to tell the truth, that it is wrongful to tell a lie, and that he will be punished if he tells a lie, I think that is enough to entitle any person to be sworn. (To this ruling the defendant excepted.) I rather gather from this child's statements that she considers it wrong to tell a lie. I will allow the examination to go no farther.
The witness was then sworn and testified that she saw Wright lay a package -- which she described, and which her description showed to be similar to that described by him in his testimony -- on a box in defendant's shop; that Wright went out without taking up the package, and that soon afterward she saw defendant's wife take it up, tear off one corner, so as to disclose what looked like money, and then give it to defendant, who put it into his pocket. On her cross-examination the witness testified that she forgot whether she swore, on the former trial of the case, (in April, 1875,) that Wright told her how the package was tied up, and that she did swear on the former trial that one Briggs told her about Mr. Wright leaving the money on the box, and that he told her about the money being tied with a string. At the close of her testimony Wright was recalled, and testified that he never told her that he took the money out of his pocket and put it on the box; and Briggs was called, and testified that he never told her that Mrs. Levy had given the money to defendant. The testimony of these witnesses was taken under objection that it was "incompetent, immaterial, and not proper for impeachment," and exceptions were taken to the overruling of the objections.
The testimony of the witness Minnie Bohn was supported by that of other witnesses for the prosecution, and was contradicted by witnesses for the defence.
In the package lost by Wright there was also a draft for $ 563. On the day following the loss the defendant was arrested, and an examination was had before a magistrate, at which one Anne Steeborn testified to having seen Mrs. Levy take the package from the box in defendant's shop, open it, and carry it into an adjoining room; and, after the examination, the sheriff said to defendant that either defendant's wife or Mrs. Steeborn had the money. On the following day the defendant and his brother Moses called on the county attorney, and defendant told him that Moses had a statement to make, and left the room. Moses then told the county attorney that he had seen a woman putting something under the stoop of a house. By the attorney's direction, Moses repeated his statement to the sheriff, and pointed out the house to him. The sheriff searched beneath the stoop, and found the missing draft wrapped up in paper. The house was that of Mrs. Steeborn, who, at the trial, repeated her testimony given at the preliminary examination, and denied any knowledge of the draft. The defendant's counsel objected to the introduction in evidence of the statements and acts of Moses which led to the finding of the draft, on the ground that defendant was not properly connected therewith. The objection was overruled, and exception taken. The exceptions taken to the charge are stated in the opinion. The defendant was convicted, a new trial was refused, and he appealed to this court.
Order affirmed.
Davis, O'Brien & Wilson, G. & W. Gale, and J. W. Dyckson, for appellant.
Geo. P. Wilson, Attorney General, and A. H. Snow, for the State.
When a witness is objected to, on the ground that he or she is incompetent by reason of nonage or want of intelligence, it is the province of the trial court to determine the witness' competency, and its decision cannot be reviewed unless there is a...
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