HUGHES v. DETROIT, G. H. & M. RY. CO.

(Supreme Court of Michigan, 1887. 65 Mich. 10, 31 N. W. 603.) Action against a railroad company to recover for personal injuries. Judgment for plaintiff. Defendant appeals.

CAMPBELL, C. J. Plaintiff, a little colored boy, who is now between six and seven years old, and was, when injured, five years old or under, recovered judgment in the superior court of Detroit for personal injuries causing the loss of a leg and some other damage. In July, 1884, towards the close of the day, but during daylight, according to the claim of his declaration, he was on the front of a switching locomotive which was making up and distributing freight trains, and standing upon a plank step used for switchmen and brakemen to stand upon in their yard-work, and, as he asserts, was thrown off by a sudden start or a sudden stop, and run over. The negligence alleged was the failure of the trainmen to put him off before moving, and the rapid action in starting and stopping. * * *

Under the charge, as already given, the jury were directed not to find for plaintiff unless the engineer actually saw the plaintiff on the foot-board. If so, the court held he should not have started the train while the boy was on it, but should have ordered him off; and, in giving this charge, the court said it was conceded that the boy was on the foot-board, and assumed the boy said the engineer saw him before starting. It was not disputed, but admitted on the argument in this court, that, if the engineer actually saw the boy on the foot-board before moving, he would be bound to use efficient care to prevent injury to him; but it is denied that he was on the foot-board. or, if so, was seen by the engineer, or any one else, in that position. The fact that the boy himself is the only witness who says the engineer saw him renders another question important, which is how far his testimony was admissible.

It has been held by this court as well as courts generally, that the fact that a child is under seven years does not create an absolute disability to testify. This was held in McGuire v. People, 44 Mich. 286, 6 N. W. 669, 38 Am. Rep. 265, and is the doctrine of the text-books. But the authorities all agree that a child cannot testify unless capable of appreciating the obligation of his oath. if he takes an oath, or of

4 For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 223. 5 A portion of the opinion of Campbell, C. J., and the dissenting opinion of Morse, J., are omitted.

his affirmation if that is substituted. And this is upon the ground that a witness must be under some pressure, arising out of the solemnity of the occasion, beyond the ordinary obligation of truthtelling. 1 Greenl. Ev. § 367; 1 Phil. c. 2 (C. & H.), and notes. One or the other of these methods of attestation is required of all witnesses, children or adults, and persons unsworn cannot testify unless they prefer the other form, which in this state is under the pains and penalties of perjury.

The fact that the child was to be put under oath or affirmation was not brought to his attention at all, so as to show whether he did or did not understand the bearing or effect of it. He merely said he must tell the truth, or he would go to hell; but, when asked about any other consequences, he showed entire ignorance, and only said that his mother told him the day before that he would go to hell if he did not speak the truth. This is all that he said bearing on his veracity. He was examined by counsel, and not particularly tested by the court, and the court, without making any personal examination, certifying or in any way giving an opinion that the boy understood the nature or obligation of an oath or affirmation, left it all to the jury, to be tested by the ordinary questioning and crossquestioning by counsel. This is what might, no doubt, be safe with many other persons besides children who usually tell the truth, and may have their truth substantially tested, whether sworn or not.

But the law entitles parties to insist that all witnesses shall be put under some solemn obligation before testifying, and excludes witnesses who are incapable of understanding its sanction. As Mr. Starkie very well explains it, this is not done because the law imputes guilt or blame to those who do not appreciate it, but because it requires the highest attainable sanction for testimony. 1 Starkie, Ev. 22. It is not left to courts to let in everything which, in their general opinion, or in the case of the particular witness, might be safe. Neither does it rest on any particular belief. Any one may take the oath or obligation that accords with his own opinions, but he must do the one or the other. And he must be able to comprehend it. Upon this there is no conflict in the cases. It is necessary to be left very much to the discretion of the trial judge if he undertakes to exercise that discretion, and acts upon such an examination as satisfies his own mind. He should conduct this examination as in his judgment will be effectual. It cannot safely be left to counsel to make the examination. In McGuire's Case, before referred to, the judge gave a careful personal examination to the child, and formed a distinct opinion of his own, founded on that examination.

As the preliminary inquiry cannot be and is not under oath, there is the strongest reason for very careful action by the judge himself on his official responsibility. The cases and text-books recognize this distinctly. See 1 Greenl. Ev. §§ 367, 368, and notes; 1 Edw. Phil. Ev. 11, and notes. In England it has been held that recent teaching.

for the occasion is not in itself sufficient, because the knowledge thus received may not be comprehended 1 Edw. Phil. Ev. 11; Rex v. Williams, 7 Car. & P. 320. A careful judicial examination is much more satisfactory than answers which may or may not be really intelligent. The child's capacity and disposition to answer correctly and cordially such questioning as may be given is of the utmost consequence, because even among mature witnesses it is not always easy to discriminate between actual knowledge and what is accepted on hearsay and influence. It is obviously necessary for the court to be satisfied that the child will be disposed to tell the truth under some sense of obligation.

In children of tender age no reasonable person would expect a complete power of discriminating between his means and sources of knowledge; and more or less undesigned coloring and miscoloration is almost inevitable. There can be no criminal responsibility in a young child, and the care used must therefore be rather in ascertaining his capacity and disposition than in impressing the terrors of the law. We are compelled to apply the law as we find it, until changed by legislation. But we are greatly impressed with the practical imperfection of the present rules. In France, and probably elsewhere, the courts refuse to administer an oath to children of tender years, and allow them to be examined without anything more than suitable cautions, leaving their statements on direct and cross-examination to be taken for what they are worth. This seems to be a sensible proceeding, and is probably quite as efficacious as our own system, and less likely to abuse.

There is a proper desire in courts to receive such testimony as will throw light on the case, and there is no doubt that in practice children are often allowed to testify whose legal capacity to do so is very liberally construed. It would be better, we think, to put their testimony on the more rational ground that it is calculated to be of some value, and capable, under a proper examination, of being reasonably well weighed for what it is worth.

*

For the reasons given, the judgment should be reversed, and a new trial granted.

CHAMPLIN and SHERWOOD, JJ., concurred. MORSE, J., dissented.

IV. Certain Special Cases of Disqualification-Jurors

MATTOX v. UNITED STATES.

(Supreme Court of the United States, 1892. 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917.)

This was an indictment charging Clyde Mattox with the murder of one John Mullen, about December 12, 1889, in that part of the Indian Territory made part of the United States judicial district of Kansas by section 2 of the act of congress of January 6, 1883, (22 St. p. 400, c. 13,) entitled "An act to provide for holding a term of the district court of the United States at Wichita, Kansas, and for other purposes."

Defendant pleaded not guilty, was put upon his trial, October 5, 1891, and on the 8th of that month was found guilty as charged, the jury having retired on the 7th to consider of their verdict. Motions. for a new trial and in arrest of judgment were severally made and overruled, and Mattox sentenced to death. This writ of error was thereupon sued out.

In support of his motion for new trial, the defendant offered the affidavits of two of the jurors that the bailiff who had charge of the jury in the case after the cause had been heard and submitted, "and while they were deliberating of their verdict," "in the presence and hearing of the jurors or a part of them, speaking of the case, said: 'After you fellows get through with this case it will be tried again down there. Thompson has poison in a bottle that them fellows tried to give him.' And at another time, in the presence and hearing of said jury or a part of them, referring to the defendant, Clyde Mattox, said: "This is the third fellow he has killed.""

The affidavit of another juror to the same effect, in respect of the remark of the bailiff as to Thompson, was also offered, and, in addition, the affidavits of eight of the jurors, including the three just mentioned, "that after said cause had been submitted to the jury, and while the jury were deliberating of their verdict, and before they had agreed upon a verdict in the case, a certain newspaper printed and published in the city of Wichita, Kan., known as 'The Wichita Daily Eagle,' of the date of Thursday morning, October 8, 1891, was introduced into the jury room; that said paper contained a comment upon the case under consideration by said jury, and that said comment upon said case so under consideration by said jury was read

• For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 225.

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to the jury in their presence and hearing; that the comment so read to said jury is found upon the fifth page of said paper, and in the third column of said page, and is as follows:

""The Mattox Case-The Jury Retired at Noon Yesterday and is Still Out. The destiny of Clyde Mattox is now in the hands of the twelve citizens of Kansas composing the jury in this case. If he is not found guilty of murder he will be a lucky man, for the evidence against him was very strong, or, at least, appeared to be to an outsider. The case was given to the jury at noon yesterday, and it was expected that their deliberations would not last an hour before they would return a verdict. The hour passed, and nine more of them with it, and still a verdict was not reached by 10:30 last night, when the jury adjourned and went to their rooms at the Carey. Col. Johnson, of Oklahoma City, defended him, and made an excellent speech in his behalf to the jury. Mr. Ady also made a fine speech, and one that was full of argument and replete with the details of the crime committed, as gathered from the statements of witnesses. The lawyers who were present and the court officers also agree that it was one of the best and most logical speeches Mr. Ady ever made in this court. It was so strong that the friends of Mattox gave up all hope of any result but conviction. Judge Riner's instructions to the jury were very clear and impartial, and required nearly half an hour for him to read them. When the jury filed out, Mattox seemed to be the most unconcerned man in the room. His mother was very pale, and her face indicated that she had but very little hope. She is certainly deserving of a good deal of credit, for she has stuck by her son, as only a mother can, through all his trials and difficulties, and this is not the first one by any means, for Clyde has been tried for his life once before. He is a youthful looking man of light build, a beardless face, and a nervous disposition. The crime for which he has just been tried is the killing of a colored man in Oklahoma City over two years ago. Nobody saw him do the killing, and the evidence against him is purely circumstantial, but very strong, it is claimed by those who heard all the testimony.'"

The bill of exceptions states that these affidavits and a copy of the newspaper referred to "were offered in open court by the defendant in support of his motion for a new trial, and by the said district court excluded; to which ruling the defendant, by his counsel, then and there excepts and still excepts." And the defendant excepted to the overruling of his motions for new trial and in arrest of judgment. Chief Justice FULLER,' after stating the facts in the foregoing language, delivered the opinion of the court.

The allowance or refusal of a new trial rests in the sound discretion of the court to which the application is addressed, and the result

7 A portion of the statement of the case and a portion of the opinion are omitted.