Opinion
April, 1934.
Judgment of conviction of the Court of Special Sessions of the City of New York, Borough of Queens, reversed on the law and a new trial ordered. The denial of the right to examine the complainant, of the age of ten, as to her competency before being sworn as a witness affected a substantial right and was an abuse of discretion. By the Code of Criminal Procedure (§ 392) children actually or apparently under the age of twelve years may testify in any criminal proceeding without taking an oath; but such evidence is not sufficient to convict unless corroborated or supported. The preliminary determination of the capacity of the child to comprehend the obligation of an oath is conclusive of the question as to whether or not the child's testimony shall be supported to justify a conviction. While it is true, as the court ruled, that the responsibility of determining the question is with the court, as are all issues, the consequences fall on the defendant. Hagarty and Scudder, JJ., concur; Lazansky, P.J., concurs for reversal on the ground that the guilt of the defendant was not proved beyond a reasonable doubt; Young and Carswell, JJ., dissent and vote to affirm.