113 P. 205 | Okla. Crim. App. | 1910
In the trial of this case Costa Bowerman, a girl eleven years of age, was introduced as a witness in behalf of the prosecution. Plaintiffs in error objected to her testifying because she was not of the age at and after which persons are presumed competent to testify, and because she had not been shown to be a competent witness. The court peremptorily overruled the objection, and without any examination of the witness whatever as to her competency, and without any showing of any kind or character that she knew the nature, obligation or effect of an oath, permitted her to testify. She gave damaging testimony against plaintiffs in error. The latter saved an exception to the ruling of the court, and assign the ruling as error.
We think the assignment well taken. This homicide was committed prior to statehood; and under the Act of Congress of March 4, 1907 (c. 2911, sec. 39, 34 Stat, 1287), amending sec. 20 of the Enabling Act (Act of June 9, 1906, c. 3335, 34 Stat. 277; U.S. Comp. St. Supp. 1909, p. 154), the terms of which were accepted by section 28 of the Schedule of our Constitution, plaintiffs in error were entitled to be tried under the laws in force in the Indian Territory at the time of the admission of the state into the Union. Hawkins v. United States,
The next assignment is that "the court erred in excluding the testimony of Clay Roper concerning the reputation of the deceased for offering insults to ladies and slandering their character." It is stated in the brief that the question at issue was whether the deceased had slandered Birdwell's wife, but this is not true. The plea was self-defense. No quarrel preceded the killing, no words were spoken. The offered evidence was not competent, and would not have been competent even if the question whether deceased had slandered Birdwell's wife had been legitimately in the case.
For the error indicated the cause is reversed and remanded, with directions to set aside the judgment and grant plaintiffs in error a new trial.
FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur.