People v. Swist

CHIPMAN, C.

Defendant was convicted of an assault with intent to commit the infamous crime against nature. He appeals from the judgment and from the order denying his motion for a new trial.

1. It is first objected that the court was without jurisdiction, for the reason that the oath administered to the witnesses was in accordance with the provisions of section 2094 of the Code of Civil Procedure, as amended March 4, 1901, since declared by this court to be unconstitutional.

(Lewis

v.

Dunne,

134 Cal. 291.

1

) Waiving the "question whether the point can be raised as ground for a motion for a new trial, we have this to say in reply: The form of oath prescribed by section 2094 is as follows: “You do solemnly swear (or affirm, as the case may be) that the evidence you shall give in this issue (or matter) pending between-and-, shall be the truth, the whole truth, and "nothing but the truth, so help you God.” The oath administered to the witnesses during the trial was as follows: “You solemnly swear that the evidence you shall give in the issue now pending, wherein the People of the State of. California is plaintiff, and John Doe Swist is- defendant, will be the truth, the whole truth,

[522]

and nothing but the truth.” Except the invocation for God’s help, the form of the oath administered is essentially the same as the form prescribed by the unamended code. No objection was made at the trial to the form used. We do not doubt that false testimony material to the issue given under the form of oath as administered would constitute perjury. In our opinion the two forms of oath are substantially the same.

2. It is next contended that the verdict is contrary to the evidence. This claim rests on the alleged incompeteney of the child-victim of the assault, by reason of his youth, without whose testimony there was not sufficient evidence to convict. The prosecuting witness was six years old. He was examined by the judge and by counsel without the hearing of the jury at considerable length to test his intelligence and competency to testify. Nothing short of embodying the entire preliminary examination and the examination before the jury would fairly indicate whether the ruling of the court was correct in allowing the witness to testify. It would too greatly extend the opinion to quote all of this examination. We have given it careful consideration, however, and have reached the conclusion that it was not error to allow the testimony of the boy. It appeared that he had never attended school, and some questions he answered incorrectly which it might reasonably have been expected he would answer correctly, while as to others he showed ordinary intelligence for one of his age, and his answers were so ingenuous and artless as to show entire candor. He seemed to have a very clear perception as to his duty to speak the truth, and not to falsify.