
    People v. Frindel.
    
      (Supreme Court, General Term, First Department.
    
    December 29,1890.)
    1. Assault—Evidence of Character.
    On an indictment for assault, complainant’s character for quarrelsomeness cannot be shown by proof of specific acts; nor is evidence of his general reputation in that respect admissible where defendant does not claim to have acted in self-defense; and where such evidence is offered before any proof of an assault by complainant on defendant, there is no error in excluding it.
    2. Same—Different Degrees—Separate Counts—Verdict.
    On an indictment for assault, a refusal to take from the consideration of the jury a count charging assault in the first degree is,not cause for reversal of a conviction under another count in the second degree, where it does not appear that the jury •were influenced thereby.
    3. Competency of Witness—Infant.
    Where a child of tender years, called as a witness, is unable to comprehend the nature of an oath, there is no error in refusing, even in a criminal case, to receive his unsworn statement for what it is worth.
    Appeal from court of general sessions, New York county.
    Indictment against George Frindel for assault. Defendant appeals from a conviction of assault in the second degree.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Charles Steckler, (Alfred Steckler, of counsel,) for appellant. John R. Fellows, Dist. Atty., (McKenzie Semple, of counsel,) for respondent.
   Van Brunt, P. J.

This appeal presents for review the question as to the propriety of the rulings of the court in excluding evidence offered by the defendant of the complainant’s character for quarrelsomeness. This evidence was of two classes,—one an attempt to prove specific acts; and the other to establish the complainant’s general reputation in that respect. It is not necessary to multiply authorities to show that evidence of specific acts is not admissible. Thomas v. People, 67 N. Y. 218. Neither was the evidence as to general reputation admissible in view of the nature of the defense; because it was not at all claimed by the prisoner that the act was committed in self-defense. Upon the contrary, he testified that the complainant ran into the knife himself, and that the knife was not taken out for any purposes of self-defense, but simply to scare the complainant. This seems to bring the case within the principle of Abbott v. People, 86 N. Y. 460, in which it is held that testimony of a quarrelsome disposition is not admissible where, under the circumstances, there is no ground for claiming that the act for which the prisoner is being tried was committed in self-defense. There in another reason why no error was committed in the exclusion of this testimony. At the time it was offered, no evidence whatever had been given of an assault by the complainant upon the defendant, and the judge, in excluding the testimony, expressly stated that he excluded it at that stage of the case; and, after the testimony of the defendant of an assault by the complainant, no offer of the testimony was made.

Another point is raised that the counsel for the defendant, after the people had rested their case, asked the court to take from the jury the consideration of the first count in the indictment, which charged assault in the first degree. This was refused, and the defendant excepted. The prisoner, however, does not seem to have been in any way injured by this ruling, because he was not found guilty of assault in the first, but in the second, degree. It does not appear that the jury were influenced by it, nor that he was damaged thereby.

Another point raised is that a child of eight years called as a witness for the defendant, who showed from his testimony that he had no apprehension of the nature of an oath, was not permitted to testify. It is claimed that it is a well-known practice in criminal trials when such a witness is called by either party to take the unsworn statement of the witness for what it is worth-With all due respect to the learned counsel, we are not aware of any such rule •or any such practice. The law requires the testimony of witnesses to be given under the sanctity of an oath, and where a child is of such tender years as not to be able to comprehend the nature of an oath, it seems to us that the safeguards which the law has placed around human testimony would be entirely overthrown, were its statements permitted to be given. There does not appear to be any error which calls for a reversal of the judgment, and it should be affirmed. All concur.  