196 Ky. 146 | Ky. Ct. App. | 1922
Opinion of the Court by
Reversing.
The appellant and plaintiff below, Mettie Leahman, by this action filed in the Boyd circuit court, seeks to recover damages of the appellee and defendant below, George Broughton, in the sum of $5,000.00 for an alleged wrongful forcible assault made upon her wherein he "hugged and kissed her numerous times while she was struggling to release herself” and continued to do so until plaintiff forced him to desist by kicking him, all of which is alleged to have occurred on August 6, 1917, at about 8 o ’clock P. M. in the town of Ashland, Kentucky, and in plaintiff’s residence. The answer denied the material averments of the petition and upon trial the jury returned a verdict for defendant which the court declin
1. The complaint made under ground (1), is founded on the action of the court in refusing to permit plaintiff to introduce as a witness in her behalf her infant daughter, Yerna May Leahman, who at th© time of the trial was just past eight years of age but who at the time of the alleged assault was but little more than five and one-half years of age. Plaintiff- testified that her ■daughter was present at the time and saw what occurred and the latter was examined before the court, and out of the hearing of the jury, for the purpose, as we presume, of determining her competency to testify and in that examination, in order to show the materiality of her testimony she substantially corroborated her mother as to what transpired on the occasion complained of and which was in direct conflict with defendant’s version of what •happened. The record does not disclose the ground upon which the testimony of the infant witness was excluded but it is -conceded that it was done because the court was of the opinion that the witness was incompetent because of her age.
Much has been written by both text writers and courts upon the question of the competency of infants to testify in judicial proceedings. By the ancient common law it .was conclusively presumed that the disqualification of age did not apply to a witness who was at the time of testifying fourteen years old or over, and that it was conclusively presumed to be incompetent when under seven years of age, and whether the infant was competent between those ages depended upon circumstances, chief among which was whether it was of sufficient intelligence to comprehend the nature of an oath and to realize the solemnity of the obligation which it imposed upon one testifying in court. Those rules of the common law have in the course of time undergone some alterations in the great majority of jurisdictions, some of which have been made by statute while others were engrafted by judicial utterance, all of which clearly appears from the opinions and text authorities hereinafter referred to. From an
In the Bright case, supra, this court, following the doctrine laid down in Greenleaf on Evidence, section 367, said:
“That if a child offered as a witness appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he is admitted to testify whatever his age may he. The infant witness in that case qualified by stating that “he realized it was wrong to tell a lie; that, while he did not understand what an oath meant, yet he knew that by being sworn he was required to tell the truth; and that if he did not do so he would be punished for it, but he did not know how, nor by whom, and that if he gave false testimony ‘ ‘ the bad man would get him. In the Merchant case, supra, the opinion says: “The law recognizes no exact period of time at which infants are allowed to testify. This depends upon the individual capacity of , each witness. .Whenever it is apparent that the witness knows right from wrong and recognizes that punishment by the Almighty will follow falsehood, then he is permitted to testify and the jury authorized to give such credit to the testimony as they may think it deserves.
The reason given for the disposition of the courts in modern times to widen the rule relating to the competency of witnesses, including infants, as will be seen from the authorities supra, is that the essential thing in
It appeared on the voir dire examination of the offered witness, not only that she was slightly over eight years of age at the time of.the trial, but that she had attended school for two years and had made fair progress during that time, and she testified that she knew it was wrong “to tell a story” and that if she did so in her testimony “she would go 'to the bad place.” Her testimony was reasonably intelligent for one of her age, although she did not remember dates and was unable to- give the month or year of the happening of inquired of events, which, indeed, is not uncommon even with adult witnesses, -and upon the whole we are convinced that the court erred in excluding her testimony. Before closing this branch of the opinion we deem it necessary to state that the authorities, swprd, seem to fix the date of competency or ineompetency as of the time the infant is offered as a witness and not at the time when the facts testified to occurred, (Jones on Evidence, supra, section 722), although, if at the latter date the infant was so extremely youthful as that it would be impossible for it to* remember the occurrences, its testimony .should be rejected, which condition, however, was not shown in this ■case.
2. Under this gPound.'oounsel for plaintiff complains of admitted testimony to prove (a), defendant’s good moral character without any attack made on it by plaintiff, and (b), statements made by plaintiff’s husband out of her presence. The question raised by complaint (a), as
As said in the section of Jones on Evidence, referred to, “Evidence of character in such cases has but a remote bearing as proof to show that the act in question has or has not been committed. It is uncertain in its nature, because true character is ascertained with difficulty, and those who are called to testify are reluctant to disparage the influential and often too willing to disparage, one under a cloud.” It is then pointed out that such evidence, after all, is but a matter óf opinion of the witness who is apt to be influenced by prejudice or partisanship and to admit it to bolster the character of one who has not been impeached “would make trials intolerably tedious and greatly increase the expense and delay of litigation.” Attention is also called to the fact, in the same section, copying from the opinion of Thompson v. Church, 1 Root (Conn.), 312, that “The business of the court is to try the case, and not the man; and a very bad man may have a very righteous cause,” or vice versa. The exceptions to the general rule, as shown by above authorities, are; that character evidence of the parties in the kind of action under consideration is admissible if the proceedings “be such as to put the reputation of the parties directly in issue,” or in mitigation of damages when the gravamen of the action is injury to the plain
The Wisconsin case of Barton v. Burley, supra, was one to recover damages for-an indecent assault and the court held that testimony offered, to establish the had reputation of defendant as to the particular trait involved was erroneously admitted, saying that “Nothing is better settled than that the commission of one assault can not be establsihed by commission of others, and that in a civil action for assault such as this (the same as in instant case) the defendant’s character is in no wise in issue.” To the same effect, as to the defendant’s character not being in issue in ordinary actions for assault and battery, are the other cases cited above and no; case has been found upholding the right of defendant to prove his good character, even in an action against him for an indecent assault, except the case relied on of Schuek v. Hagar, 24 Minn. 339; and in that opinion the question is disposed of in a short paragraph and without reference to any supporting authority.
The case of Evans v. Evans, 93 Ky. 510, was a divorce action in which the wife was charged with adultery by her husband and he offered to prove her general reputation for unchastity in support of that charge, but the court' excluded it upon the ground that the proceeding did not put her general character -in issue. In passing upon the question the opinion said: “In civil actions evidence of general reputation is not admissible unless the proceeding be such as to put the character of the party directly in issue. The charge was adultery by her. She should not be convicted of such, an act upon presumption. It was not a proceeding which put her general character in issue, and the admission of such evidence for the purpose of raising a presumption of-her guilt would lead to more of uncertainty and disadvantage than benefit in the
The foundation for complaint (b) under this ground is the error of the court in allowing a witness to testify that after the alleged assault and before the trial Will Leahman, plaintiff’s husband, who was living separately from her, stated in witness’s presen.ce but in the absence of plaintiff, “that he (the husband) was going up and get-a warrant for him (defendant) and see if he couldn’t get a piece of money out of it. ’ ’ That testimony was not ob
For the reasons stated the judgment is reversed with directions to sustain the motion for a new trial and set the verdict aside and for proceedings consistent with this opinion.