98 Kan. 186 | Kan. | 1916
The opinion of the court was delivered by
George W. Gaunt was prosecuted for killing J. Lee Shaffer, the information charging murder in the first degree. He admitted the homicide, but asserted that he had acted in self-defense. He was convicted of manslaughter in the third degree, and appeals.
“The law presumes the defendant to be of good reputation until the contrary is shown. The defendant will therefore be held by you to be of good reputation and character except in so far as his own testimony or any admissions contained therein may affect his credibility as a witness.”
The defendant complains of the refusal of the court to give a number of additional instructions which he asked on this point, including statements, among others, to the effect that the presumption of good character was substantive testimony and that it extended to every branch of the case where good reputation might serve him. Where witnesses have testified to the good reputation of a defendant it may be error to limit the effect of such evidence to some particular issue. (The State v. Deuel, 63 Kan. 811, 66 Pac. 1037.) But the instruc
“The court permitted Bert Shaffer, a boy of five years, to testify. While this is a very tender age you are instructed that age is not the test to be applied to the testimony of a witness. It is for you to determine from the intelligence of the witness, his memory concerning the things of which he has testified, his opportunity and ability to observe .and know the things of which he has testified, the consistency of 'his statements and his ability of conveying his recollection correctly, what weight you shall give to his testimony, and in doing this you .may take into consideration his size and age, together with all the other circumstances appearing on the trial relative to his testimony and the things of which he has testified.”
The statute, in the enumeration of persons who are incompetent to testify, includes “children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they áre examined, or of relating them truly.” (Civ. Code, § 321, subdiv. 2.) The defendant maintains that this law should have been quoted to the jury, and also that the court erroneously surrendered its power to determine the admissibility of the boy’s testimony. - No occasion existed for stating to the j-ury the provision of the statute. That related to the competence of the witness — to the question whether he should be allowed to testify at all — a matter with which the
The judgment is affirmed.