The opinion of the court was delivered by
Ingalls X. Lee sued the Missouri Pacific Railway Company for injuries received in alighting or falling from a fiat car of a freight-train on the
Plaintiff testified in his own behalf. He was at the time eleven years of age. Upon cross-examination defendant’s attorney inquired regarding his understanding of the nature of an oath, and moved to strike out his entire testimony on the gro'und that his answers-showed thаt he was incompetent as a witness. The court overruled the motion, the defendant excepting. The defendant in error contends that in passing upon the sufficiency of the evidence in behalf of plaintiff this court should disregard plaintiff’s own testimony, notwithstanding the trial court admitted it. It is clear that without this testimony the demurrer should have been sustained. ' If this testimony is to be considered the demurrer should have been overruled. The two questions for our determination, therefore, are whether the plaintiff was a competent witness, and, if not, whether this court should consider his testimony in reviewing the decision upon the demurrer to the evidence. The entire testimony of plaintiff with regard to his compеtency was as follows, the last question being asked by his own attorney:
“Ques., Ingalls, do you know what an oath is? Ans. No.
“Q. You don’t know what it means when you hold up your hand and are sworn?' A. No.
“Q. You have no idea what the obligation is which is required of you when you hold up your hand? A. No.
“Q. You don’t know whаt would happen to you. if you would tell an untruth, do you ? A. No.
*404 “Q. You have n’t the least idea? A. No.
“Q,. And then when you tell this story here, you don’t know if you would tell a lie what they would do with you? A. No.
, “Q. You have n’t the least idea? A. No.
“Q. You don’t know whether they would put you in the penitentiary or not, do you ? A. No.
“Q,. Don’t you know that if you should tell a lie they would put you in prison ? A. No.
“Q. You don’t know that ? A. No.
“Q,. So you would just as soon tell the truth as lie about it, so far as the punishment is concerned, would you? A. Yes.
“Q. When you say you don’t know the nature of an oath, Ingalls, when you told this to this man, were you telling the truth or not ? A. Yes.”
In support of the proposition that the witness was competent, plaintiff in error argues that the decision of the trial court is conclusive and not subject to review by this court. If the objection to his competenсy were that he vwas lacking in general intelligence or capacity this contention would be sound. As to this matter the trial court,.in seeing and hearing the witness, had means of reaching a just decision that are wholly wanting here. ' Moreover, the character of the boy’s testimony relating to the facts of the case was such as to lead to the conclusion that he was not mentally deficient. But the objection made is a very different one, namely, thаt he showed that he had no conception of the significance! of an oath. His testimony in this regard was plain and unambiguous, and warrants no other conclusion than that he was entirely ignorant not merely as to the character of the obligation assumed by a witness in taking an oath, but practically as to the fact that there was any such obligation. . But plaintiff in error further contends that this does not disqualify him from testifying, the
“The following persons shall be incompetent .to testify : . . . Second, children under ten years of age who appear incapable of receiving just impressions оf the facts respecting which they are examined or of relating them truly.”
In State v. Scanlan,
“The only test of competency in a child under ten years of age to be a witness is whether it appears incapable of receiving just impressions of the facts, or of relating them truly.”
This decision seems tо support the contention of plaintiff in error, but the language quoted is broader than required by the facts of the case, and if it had not appeared that the testimony referred to was given under the influence of fright and embаrrassment, a different result might have been reached. Moreover, in the case at bar, the witness could not be disqualified within the literal terms of the statute. He was eleven years of age and, even if found incapable of receiving just impressions of facts or relating them truly, would still not be disqualified unless by implication. In this respect his case is very similar to that of an Indian who was held to be a competent witness in Smith v. Brown,
“The objection urged to this witness was not a want of sufficient age, or that he was an idiot, or insane, or of weak mind; but that he did not understand the natui'e and obligation of an oath. He was an uneducated Indian, not deficient in understanding, but uninstructed as to the nature of an oath, and mistaken as to the punishment for perjury, an act which by that name he did not know; yet he knew that it was wrong to speak falsely, and that he would be punished for so doing. Whether he believed that he would be punished in another life was a matter that could not be inquired into under our constitution.”
The decisions on the question of the competency of children and other persons whose understanding of the nature of an oath is doubtful are many and conflicting. A numerous list is collected in a note to State v. Michael, 19 L. R. A. 605, 16 S. E. (W. Va.) 803, to which later cases arе added in the American Digest, 1899 B, 4621 and 4622. It is not necessary for the purposes of this case to review these authorities in detail. We hold that there is by necessary implication a class of persons incompetent to testify, in аddition to those expressly defined in the statute, namely, those who have no understanding that the taking of an oath imposes any new obligation to speak the truth. We reach this conclusion less froxn any application of the principles of the common law than from the consideration of the statute itself. It is required that a witness be sworn before testifying, and this requirement is xnandatory. (Mayberry v. Sivey,
“ The statute, if is true, provides that ‘any unmarried woman/ etc., may institute an action, and such terms without qualification are broad enough to include idiots and lunatics. There is language, however, employed in the same connection which clearly implies that only rational beings were within the contemplation of the legislature. As already indicated, she only can begin the prosecution, and that she is to do by making a written complaint oh oath. Only thоse who understand the binding force of an oath and are capable of giving testimony are within the spirit and intent of the act. . . . Having no mind or understanding, there was, in fact, no complainant.”
In order that one may be competеnt as a witness, it is not necessary that he have a definite or accurate knowledge of the difference between his duty to tell the truth after being sworn and that already existing; still less that he should be able to state it; but it is
It remains to determine whether the evidence of this incompetеnt witness should be considered by this court in reviewing the ruling sustaining the demurrer to the evidence, the trial court having refused to strike it out. In Duveneck v. Kutzer,
“Where incompetent testimony is received over objection, it is within the province of the court to correct such error at any time before the final disposition of the case, and, upon a demurrer to plaintiff’s evidence, it is not improper for thе court to strike out or to disregard such incompetent testimony.’’
It is obvious that this rule imposes something of a hardship upon a plaintiff in that it requires him to judge at his own risk of the competency of evidence that he offers, insteаd of permitting him to rely upon rulings in his favor. But the issue raised by the demurrer is one of law. The evidence is passed on by the court. The jury are for the time eliminated. It is a familiar fact that, especially in matters presented for the determination of a court, evidence is often admitted tentatively, the decision being held subject to reconsideration upon the submission .of the whole matter. ' In such a case it is not essential to a review of the result that a definite final ruling be indicated upon each objection made: The court is supposed to consider so much of the testimony as is competent and to disregard the rest. The situation is not materially different when a demurrer to the evidence is presented. The .trial court, at least in the absence of a distinct and affirmative recital in the record to the contrary, must be deemed finally to have left out of consideration any evidence that ought not to have been admitted or that ought to have been stricken out.
The judgment is affirmed.