175 A. 422 | Pa. | 1934
This is an action of quo warranto to test the right of the respondent, William Joyce, to hold the office of township *436 commissioner of North Versailles Township, Allegheny County. As the case is presented, there is but one question for our determination: Is a witness competent to testify to his own age? The ground upon which the district attorney, as relator, seeks the ouster of respondent is that he is not qualified to hold the office because he is not a citizen of the United States, but a native of Ireland who has never been naturalized. Respondent's answer to the petition for the writ admitted that he was born in Ireland and that he had not been naturalized, but averred that at an early age he had been brought to this country by his parents, that his father became a naturalized citizen of the United States in 1909, that at that time he was under twenty-one years of age, and that therefore, under the laws of the United States (Act of April 14, 1802, c. 28, section 4, 8 U.S.C. § 7), he also became a citizen. It was assumed by both sides that in this situation the burden was upon respondent to prove that he was under twenty-one years of age when his father was naturalized. At the trial it was stipulated that respondent's father was naturalized on June 10, 1909, and the sole issue was, therefore, whether respondent had attained his majority before that date. On direct examination, counsel for respondent asked him how old he was when his father was naturalized. Upon objection, the trial judge ruled that respondent's own testimony as to this fact could not be received unless it were shown that his parents were dead, that he had no relatives available as witnesses, and that no birth certificate or record could be obtained. In reply to this ruling respondent's counsel stated that he had no other evidence to offer as to his client's age — although he admitted that birth records had been kept and that respondent's father and elder brother were residents of the county of trial and available as witnesses — and rested. The trial judge gave binding instructions for the Commonwealth, and from the judgment entered against him respondent appealed, assigning *437 as error the refusal of his motion for a new trial.
The judgment must be reversed. The ruling of the court below excluding respondent's testimony as to his own age was clearly error. That a person is competent to testify to such a fact is the general rule, from which there seems to be very little dissent. See Wigmore, Evidence (2d ed.), section 667; 22 C. J. 171; 39 A.L.R. 376n. Thus, the prosecutrix in a case of statutory rape or similar crime may testify to her own age: People v. Ratz,
It is contended, however, that the best evidence rule applies, and that respondent was properly not allowed to testify to his own age without first showing that no certificate or record of his birth was obtainable. This contention cannot be upheld. Such records are themselves hearsay, admitted under an exception to the hearsay rule. The argument that they are to be preferred to the testimony of the person himself is chiefly based *439
on a statement in Watson v. Brewster,
Judgment reversed and a venire facias de novo awarded.