2 Ala. 275 | Ala. | 1841
The only limitation provided by the statute is, that the question referred, shall be novel and difficult. (Aikin’s Digest, 257, s. 16.) Previous to this enactment, the Circuit Courts, at their discretion, could respite the judgment in any criminal case, on a point reserved, motion in arrest of judgment, or for a new trial, for the- consideration of the Supreme Court. (Digest, 243, s. 22.)
The Circuit Court unquestionably has the right to require the opinion of this Court on any question, whether the judgment to
It is therefore, not very important to ascertain, whether the admission or rejection of an infant witness, is a matter of discretion, as distinguishable from a matter of right, and thus resting solely with the Judge trying the cause; but if it is conceded to be so, the proper exercise of that discretion, is one of the matters referred in this case. It may not be improper to add, that we incline strongly to the impression, that the admission or rejection of all evidence, is not a matter of mere discretion, but rather, that all such questions involve rights which must be ascertained, and determined, by fixed principles, and by the rules .of law. We are not aware of any adjudicated case, which tends to support Mr. Starkie in the contrary opinion, which is stated in his work on evidence, 2 vol. 393.
In Lord Hale’s time, it was common to examine children of tender years, without swearing them. (1 Hale, P. C. 634.) This practice was overturned in 1779, in Brazier’s case, when the Judges were unanimously of the opinion, that 'no testimony whatever, could be legally received, except when given on oath; and that an infant, though under the age of seven years, might be sworn in a criminal prosecution, provided such infant appeared, on a strict examination, by the Court, to possess a sufficient knowledge of the nature and consequences of an oath ; for there is no precise rule as to the age within which infants are excluded from giving evidence, but their admissibility depends on the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if
We do not wish to be understood as intimating, that the precise interrogatories used in this case were necessary, or even, that only such would be proper. The competency of such witnesses depends on the sense and reason they entertain of the danger and impiety of falsehood, and if such a sense can be collected from their answers they should be admitted, otherwise rejected.
It is conceded by the counsel of the prisoner, and properly so in our opinion, that if the death [was accelerated by the violence of the prisoner, his guilt is not extenuated, although death might be, and probably would have been the result of the disease, which then afflicted the deeéased.
The evidence on which the charge was asked, is not stated but we must presume, from the absence of any request by the prisoner to modify the instructions, that they were warranted by the facts, and that their correctness in point of law was alone disputed.
The charge given to the jury, seems to be nothing more than a response to that which was requested, but refused.
In consequence of the improper admission of this witness, the sentence must be vacated and the judgment reversed.
The prisoner to be kept in custody to await another trial, unless discharged by due course of law.