Wheeler v. United States

• Court: U.S. Supreme Court
• Writing for the Court: BREWER
• Citation: Wheeler v. United States, 159 U.S. 523, 16 S.Ct. 93, 40 L.Ed. 244 (1895)
• Decision Date: 11 November 1895
• Docket Number: No. 571,571
• Parties: WHEELER v. UNITED STATES

159 U.S. 523

16 S.Ct. 93

40 L.Ed. 244

WHEELER

v UNITED STATES.

No. 571.

November 11, 1895.

Asst. Atty. Gen. Whitney, for the United States.

Mr. Justice BREWER delivered the opinion of the court.

On January 2, 1895, George L. Wheeler was by the circuit court of the United States for the Eastern district of Texas adjudged guilty of the crime of murder, and sentenced to be hanged; whereupon he sued out this writ of error. Three errors are alleged: First, that the indictment is fatally defective in failing to allege that the defendant and the deceased were not citizens of any Indian tribe or nation. It charges that they were not Indians, nor citizens of the Indian Territory. The precise question was presented in Westmoreland v. U. S., 155 U. S. 545, 15 Sup. Ct. 243, and under the authority of that case this indictemnt must be held sufficient.

Another contention is that the court erred in overruling the motion for a new trial, but such action, as has been repeatedly held, is not assignable as error. Moore v. U. S., 150 U. S. 57, 14 Sup. Ct. 26; Holder v. U. S., 150 U. S. 91, 14 Sup. Ct. 10; Blitz v. U. S., 153 U. S. 308, 14 Sup. Ct. 924.

The remaining objection is to action of the court in permitting the son of the deceased to testify. The homicide took place on June 12, 1894, and this boy was five years old on the 5th of July following. The case was tried on December 21, at which time he was nearly five and a half years of age. The boy, in reply to questions put to him on his voir dire, said, among other things, that he knew the difference between the truth and a lie; that if he told a lie, the bad man would get him, and that he was going to tell the truth. When further asked what they would do with him in court if he told a lie, he replied that they would put him in jail. He also said that his mother had told him that morning to 'tell no lie,' and, in response to a question as to what the clerk said to him when he held up his hand, he answered, 'Don't you tell no story.' Other questions were asked as to his residence, his relationship to the deceased, and as to whether he had ever been to school, to which latter inquiry he responded in the negative. As the testimony is not all preserved in the record, we have before us no inquiry as to the sufficiency of the testimony to uphold the verdict, and are limited to the question of the competency of this witness.

That the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness is clear. While no one sould think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review, unless from that which is preserved it is clear that it was erroneous. These rules have been settled by...