56 N.H. 316 | N.H. | 1876
Lead Opinion
FROM STRAFFORD CIRCUIT COURT.
The decision of the judge who tried this cause in the court below must be deemed conclusive upon all questions of fact. Bowman v. Sanborn,
The second question raised by the case arises from the admission of George R. Day, a child ten years of age, to testify. The ancient rule of the common law was, that no witness under the age of nine years should be sworn; but the later rule is, that if the child appear, after examination by the court, to possess a sufficient sense of the wickedness and danger of false swearing, he may be sworn, although less than nine years of age. The jury will give his testimony such credit as they shall think it deserves, considering his appearance and intelligence, and the circumstances of his testifying. Commonwealth v. Hutchinson,
We are cited by the counsel for the libellee to the case of Rex v. Williams, 7 Car. P. 320, where, upon the trial of an indictment for murder, a daughter of the prisoner, aged eight years, was called as a witness on the part of the prosecution. After being examined as to the nature of an oath, she was rejected by PATTERSON, J., who said he must be satisfied that the child felt the binding obligation of an oath from the general course of her religious education. The effect of the oath upon the conscience of the child should arise from religious feelings of a permanent nature, and not merely from instructions confined to the nature of an oath recently communicated to her for the purpose of the trial. Previous to the happening of the circumstances to which the witness was offered to testify, she had no religious education whatever, and had never heard of a future state, and, as the learned judge remarked, "now has no real understanding on the subject." This probably furnishes the reason why he excluded her.
In Clements v. Marston,
When it appears that a child who is offered as a witness has not been sufficiently instructed in the nature of an oath, the court will, in its discretion, put off the trial that this may be done. 1 Gr. Ev., sec. 367. And that is what was done in this case: "the court instructed him upon that point, and received his testimony." We must presume that this was not done unless the court was satisfied that, after being instructed, he understood the nature and effect of an oath, and its binding obligation; — and, this being so, the witness was properly admitted to testify. *319
Concurrence Opinion
The facts found by the court are sufficient, according to my understanding, to constitute legal cruelty, according to the case of Harratt v. Harratt,
By Carlton v. Carlton,
Concurrence Opinion
I do not see what there is in this case for the opinion of the court. If we are to say whether a divorce for the cause of cruelty could legally be decreed upon evidence of two not very aggravated assaults, and the use of violent, profane, and indecent language by the husband to the wife, and such a course of conduct as to terrify her and their children, and render the idea of living with him intolerable, then I agree with my brethren that such evidence tends to show cruelty, and the finding of the judge that there was such cruelty as the statute makes a cause of divorce is not to be set aside for the reason that there was no evidence upon which it could be based.
Before receiving the testimony of the boy, the judge must have been satisfied that he was sufficiently instructed in the nature of an oath to justify such a course. It was an exercise of discretion which this court is not to revise. 1 Gr. Ev., sec. 367.
Exceptions overruled.