The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-12-04

JUDD, CD, FREAR WHITING, JJ.
other that
of a minor, 0 a
and Of belief in religion or in future state OF rewards and
shall the
purpose oIu 1hich his stdaonyt required
failing question
"a
her capacity this respect did comply with this provision OF
proven.
OPINION ].
The defendant indicted tried and convicted of the crime
of rape girl the age of years, in the First Circuit
Court November Term 1895, and the is brought to
defendants bill of exceptions
The principal exception is to the competency of the
cutting witness Amoku girl of the age of five years
The authorities in the United States and England have
peaedy sustained the competency of witnesses OF five
years of and permitted them to make oath or affirm
although such witnesses could be convicted of perjury and
only few instances has the discretion of the trial Judge been
reversed preliminary examination by the trial judge
necessary ascertain the competency of the minor to give
testimony.
There precise age within which children excluded
from testfyng Their competency is to be determined not by
their but by the degree of their knowledge and under
standing 1t is essential that they should possess sufficient IN
egence receive just impressions of the facts respecting
which they examined sufficient capacity to relate them
correctly and sufficient instruction to appreciate the nature
and obligation of an OATH
People q BefRdI, 10 Cal &C.
State of Virginia Mitchell, 10 Lawy. Rep Ann. 6o5,
and notes.
The competency of a years of age a witness
depend upon years. upon capacity and in
tegence of the child his appreciation of the difference be-
truth and falsehood well his duty tell the former
The decision this question primarily with the trial judge,
who proposed witness notices his his apparent
intelligence, and
nation which will tend to disclose his capacity intelligence
we'll his understanding of the obligations of oath As
of these matters cannot be photographed into the record
the decision of the trial Judge will not be disturbed on review
unless from that which preserved clear that 1t
These rules have been settled by many DECISIONS and
there be dissent among the recent authorities
Wheeler o. U. s.. 159 T. s. 525 and cases cited
Com. 4. Robinson Mass 1880, 43 N. E. 121.
But however, statutes have provided the authority for
receiving the evidence of Minors and the tests to be
applied to ascertain their competency.
Chapter 3D. Laws of 1876, Section so Comp. Laws
p. 375).
On the trial of any issue joined or any ques-
ton, any enquiry arising any suit action proceeding
any before having by law by consent
of parties authority to hear receive and examine evidence
shall be lawful for such to receive the evidence
any minor, Notwithstanding he may be destitute of the
knowledge of God and of belief religion future
rewards and punshments Provided always that the
evidence of such minor shall be given his affirmation
declaration the whole truth and nothing but
the truth such other may be approved of and
allowed by such person first aforesaid and after he
shall hare been cautioned by such court person that he will
liable punishment if he do tell the truth
Provided Also that such evidence shall be
eed unless i shall be proved to the satisfaction such
person such perfectly understands the
object of such declaration affirmation aforesaid and the
purpose for which his testimony is required"
(Our has been called by Mr. Justice Frear to the
omission the (Sec 5O printed in the Comp Laws
D. 375 of the following words as first aforesaid and after
he shall cautioned By such court person. the
being acised in the above quotation from Chap 81 Sec 90
1876 which chapter and section, in the future
reference should be specially made avoid error and mcon
ception)
The trial Judge through the interpreter had prem
nary examination of the young Witness the transcript OF which
is follows:
Preliminary examination of Amoku Ga Hawaiian girl
of five years of age) by the court
O. Aimoku, where do you live?
A. In Kamanuwai
O. Where is your mother?
A. Out there
O. Have you any father?
a. Yes,
Q. Where is he?
A. He has gone to Maui.
O. Do you ever go church!
A. No
Q. Does your mother go to church?
A. No