
    The People, Resp’t, v. Thomas O’Brien, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    Evidence—Cokroboiiation.
    The testimony of children under the age of twelve years where, in the opinion of the judge, they understand the nature of an oath, constitutes such a corroboration of the complainant, on the trial of an indictment for a crime against nature, as is required by § 392 of the Code of Criminal Procedure.
    
      Appeal from the conviction and judgment of Albany county court of sessions.
    
      John Shanlon, for app’lt; Jas. W. Eaton, dist.-att’y, for resp’t
   Mayham, P. J.

The defendant was convicted of the crime against nature, committed upon the body of a boy eleven years of age. On the trial the only direct evidence as to who perpetrated the offense was that of the boy upon whom it was inflicted. On the day of the alleged crime the complainant and his brother, eight years of age, in company with another boy, ten years old, were on a railroad track, near a piece of woods, when, as they all testify, they met the defendant, who invited them to go with him to the wood to ride a pony, and give them twenty-five cents to induce them to accompany him to the woods. That he after-wards gave the complainant fifty cents more, and after enticing them some distance he caught hold of the complainant and dragged him towards a ravine, when the other boys fled, and the defendant took complainant into the ditch and then perpetrated the offense. In addition to the testimony of this boy, proof of the corpus delecti was made by the father of the boy, who examined the person of the complainant. Other evidence was offered as to the conduct of the defendant at the time of his arrest, and of the identification of the defendant by these boys in the presence of the officer at that time. But the main contention of the defendant is that his identification as the perpetrator of this crime was established only by the testimony of the prosecutor, who was under twelve years of age, and that the testimony of the other boys, who were still younger than the complainant, was not such a corroboration as is required by § 392 of the Code of Criminal Precedure.

At common law, the capacity of a child to give evidence was determined by the trial court, and the law did not fix a minimum in the age of the child as a test of his capacity to be sworn as a witness. That rested in the sound judicial discretion of the magistrate ; but in no case could the child’s statement be received in evidence not under oath, and it was usual for the trial judge, by a preliminary examination of the child, to determine whether he had sufficient intelligence and culture to be bound in conscience and law by the obligation of an oath.

Section 392 of the Code of Criminal Procedure has changed that rule, and by that section, if the magistrate believes a child under twelve years of age ought not to be subject to the obligations of an oath, he may, nevertheless take his evidence not on oath, but in such case the evidence so taken is not sufficient to convict, unless corroborated or supported by other evidence. The language of the section is as follows: “ The rule of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. Whenever on any criminal proceedings, a child actually or apparently under the age of twelve years offered as a witness, does not in the opinion of the •court, or magistrate, understand the nature of an oath, the evideuce of such child may be received, though not given under oath, if, in the opinion of the court, or magistrate, such child is possessed of sufficient intelligence to justify the reception of the evidence. But no person shall be held or convicted of an offence upon such testimony unsupported by other evidence.”

It is quite clear in this case that the witnesses offered were not such, in the opinion of the judge, as did not understand the nature of an oath. 'The testimony of these children having been properly received by the judge, under oath, it became the duty of the jury to weigh it, having the right to take into account upon the question of its credibility their age and intelligence, and upon that subject the learned judge in his charge went farther in guarding the rights of the defendant than was necessary in instructing them that they must find in the evidence, circumstances corroborating the testimony of these children before they could convict the defendant.

The jury having found the defendant guilty upon evidence which we think was legal and competent, and no error having been committed on the trial to the prejudice of the defendant, the judgment of conviction must be affirmed.

Judgment affirmed.

All concur.  