(79 Hun, 23.)

#### PEOPLE v. LINZEY.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

1. Witness—Competency—Infants.

A witness 10 years old, who states that he had been taught that it was wrong to tell a lie, and that a witness who testified falsely was subject to punishment, shows sufficient ability to comprehend the nature and effect of an oath.

2. Appeal—Retuen of Justice on Special Sessions.

Where matter which ought to have been included in the justice’s return on appeal from a court of special sessions appears in an affidavit made by the justice, and attached to his return, the affidavit will be treated as part of the return.

3. Criminal Law—Presence of Justice in Jury Room.

It is reversible error for the justice of a court of special sessions, in the absence of defendant’s attorney, to enter the jury room while the jury are deliberating, though the justice states in his return that he entered the jury room at the request of the officer in charge, supposing that a verdict had been reached; that, on learning that such was not the case, he told the juror that he had no right to be there without the attorney, and turned to leave the room, when a jm-or asked him with what crime defendant was charged, to which he replied, ás he opened the information, but without reading therefrom, “Petit larceny.’’

Appeal from court of sessions, Ontario county.

Daniel Linzey was convicted in a court of special sessions of the crime of petit larceny, and, from a judgment affirming the conviction, defendant appeals.

Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

John E. Robson, for appellant.

Royal R. Scott, Dist. Atty., for the People.

HAIGHT, J.

The defendant was convicted of the offense of stealing a $20 bill from the money drawer in the coal office owned by John Hamlin at East Broomfield Station, in the county of Ontario. Upon the trial, Robert Linzey was sworn as a witness for the people, and, under objection by the appellant’s counsel to the effect that he was not competent to understand the nature of an oath, was permitted to testify that he saw the appellant take the bill in question from Mr. Hamlin’s money drawer.

It appears that the witness was about 10 years of age, and, before he was permitted to testify, was examined in reference to his qualification, and stated that he had been to Sunday school; had been taught it was wrong to steal or to tell a lie; said that he knew that it was wrong not to tell the truth, and knew there was some punishment to be administered when a witness swears to tell the truth and does not; and that he understood that to tell- a lie under *561oath was wrong, and that he might be punished for it. We think that the trial court, in the exercise of the discretion vested in it, properly permitted the witness to testify. The law lives no precise age within which children are excluded as witnesses. Their competency depends upon their intelligence, judgment, understanding, and ability to comprehend the nature and effect of an oath. If a witness is over 14 years of age, the law presumes him to possess the requisite discretion and understanding. If under that age, the duty devolves upon the trial court, in the exercise of a sound discretion, to determine whether the witness has the requisite capacity and intelligence; and this discretion will not be interfered with upon appeal except upon a clear showing of its abuse. Eap. Wit. § 7, and authorities there cited. The trial of this action took place before chapter 279 of the Laws of 1892 took effect, so that the amendment of section 392 of the Code of Criminal Procedure therein provided for has no application.

The defendant’s counsel, in his affidavit to procure an allowance of an appeal from the judgment of the court of special sessions, among other things states that:

> “Ho has been informed by the said justice and one of the jurors who tried said case that, after the jury retired to consider their verdict, said justice went to said jury room, and read to said jury the information upon which the warrant was issued in said case, and that that was done without the knowledge or consent of the defendant or his attorney, nor was either of them present when said statements were so read as aforesaid.’’

The justice in his return says nothing in reference, to this charge, but he attaches thereto his affidavit, in which he states:

> “That he entered the jury room, while they were deliberating upon 1lie case, at the request of the officer in charge, supposing that a verdict had been a,mved upon; that upon learning, immediately after entering, that no agreement had been reached, deponent told the jurymen he had no right to bo there without the attorney, and turned to leave the room, when one of the jurymen said that they wanted to know with what crime the defendant was charged; to which deponent replied, after opening the information, but not reading therefrom, ‘Petit larceny;’ that no other conversation was had by deponent while in the jury room, and no information or evidence was read to them.”

The practice is that where an appeal is founded upon an error in fact not appearing upon the record, and not within the knowledge of the justice, the court may determine the matter upon affidavit.; but the error here charged was within the knowledge of the justice, for it has reference to his own conduct pending llie deliberation of the jury, and the facts in reference thereto should have hern incorporated in his return. Vallen v. McGuire, 49 Hun, 594, 2 N. Y. Supp. 381. But, we think, in this case we may treat his affidavit attached to the return as a part thereof and determine the question upon the facts presented. In Sargent v. Eoberts, 1 Pick. 337, the foreman of the jury wrote to the judge that they could not agree, and that they waited for his directions. The judge answered in writing, saying that'he was unwilling, after so much lime had been consumed in the case, to permit them to separate, and gave some directions that would enable them to consider the case in a *562•.more systematic' manner, and added that the officer had directions to take them to a more convenient apartment, if they desired. On review, the judgment was reversed, and a new trial granted. Parker, C. J., in delivering the opinion of the court, says:

> “It is impossible, we think, to complain oí the substance oí the communication. The only question is whether any communication at all is proper, and, •if it was not, the party against whom the verdict was is entitled to a new trial, and we are all of the opinion, after considering the question maturely, that .no communication whatever ought to take place between the judge and the jury after the cause has been c’ommitted to them by- the charge of the judge, unless in open court, and, .where practicable, in the presence of the counsel in the case. The oath administered to the officer seems to indicate this as the proper course. He is to suffer no person to speak to. them, nor to speak to them himself, unless to ask them whether they are agreed, and he is not to suffer them to separate until they are agreed,.unless by the order of the court. When the court has adjourned, the judge carries no power with him to his lodging, and has no more authority over the jury than any other person, and any direction to them from him, either verbally or in writing, is improper. It is not sufficient to say that the power is in the hands highly responsible for a proper exercise of it The only sure way to prevent all jealousies and suspicions is to consider the judge as having no control whatever over the case except in open court, in the presence of the parties and their counsel. The public interest requires that litigating parties should have-nothing to complain of or suspect in the administration of justice, and the convenience of jurors is of small consequence when compared to this great object."

In Bunn v. Croul, 10 Johns. 239, while the jury were deliberating on their verdict, the justice was requested to inform them whether a particular point of evidence had been given, stating it to him. The justice informed the jury that it had, and mentioned the name .of the witness who had testified to the fact. A verdict was found ;for the plaintiff, on which the justice gave judgment. On review, :the judgment was reversed, the court saying:

> ■ “it. cannot fairly be inferred from the return that the explanation given by ;the justice to the jury after they had retired to make up their verdict was by ■«the consent or in the presence of the parties. If it was not, the allowance of .such a practice would be dangerous to the rights of parties. The justice’s «recollection might not.be accurate as to what the witness had said, and for «that reason the testimony might be misstated, when, if the parties were present, or the witnesses again called to repeat their testimony, any mistake might be corrected.” ■ •

In Taylor v. Betsford, 13 Johns. 487, the justice went into the jury room, at the request of the jury, to answer certain questions proposed to him,.and the judgment was reversed, the court saying:

> “The only error necessary to be noticed in this case is that the justice went into the room with the jury at their request, privately and apart from the " parties, to answer certain questions proposed to him by the jury. This we have repeatedly held to be erroneous, unless done with the consent of the parties. Whether the information given by the justice was material, or had any influence upon the verdict of. the jury, is a matter which we will not inquire into,”

In Loan Co. v. Mix, 51 N. Y. 558, it was held that a party to an action on trial by a jury is entitled to have all the proceedings public, both in respect to the production of proof and to the instructions to’the jury by-the "court, and there ought'to be no communication *563between the judge and the jury after the latter have gone from the bar to consider their verdict; that this right is a substantial one, and is not in the discretion of the court; and a party moving for a new trial upon this ground is not bound to show affirmatively that such communication tended to his injury. So much for the authorities bearing upon the question. As we have seen, the justice ,is charged with having read to the jury the information upon which the warrant was issued. The appellant’s attorney states that he w.as so informed by the justice and one of the jurymen. The information consisted of the ex parte affidavits taken before the justice. It was certainly improper, and might well have tended to .prejudice the jury. The justice admits in his affidavit that he opened the information, but states that he did not read therefrom; that then he answered that the charge was petit larceny. As has been stated in the cases, his recollection might not be accurate as to what he did before the jury. It leaves an opportunity for a defeated party to suspect that an injustice has been done him, and, in the language of one of the learned judges to which we have referred:

> “The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice.”

Undoubtedly, treating the affidavit of the justice as a part of his return, we are bound by his statement as to the facts, but, as we have already seen, it is not incumbent upon the appellant to show that he has been prejudiced in order to entitle him to a new trial. The judgment of the court of special sessions and of the court of sessions of Ontario county appealed from should be reversed, and a new trial granted in the court of sessions of that county, and for that purpose the proceedings should be remitted to that court. All concur.