People v. Colbath

Hooker, J. It is the general rule that a person is competent to testify to his own age. When, however, it appears that he has no recollection of his mother, and has no information upon the subject from his relatives or other members of the family, his opinion, based on the statements of other persons, is not evidence, while the statements of such persons are hearsay. In this cause the defendant’s counsel sought to introduce evidence of such statements through cross-examination of the witness, who had not been asked upon direct examination to state her age. It was inadmissible, and the court did not err in excluding it. The fact that she was defendant’s victim, or even complaining witness, does not affect the question, which is measured by the rule applicable to any witness. The sister of defendant’s alleged victim testified to her age, and stated that she was present at her birth, when she, the witness, was fifteen years old. On cross-examination she was asked if there was a record of Eva’s birth, and replied, “Yes; we have it.” It was developed that pending these proceedings her brother had written a letter, from which witness’ husband had made a record. It is inferable that this letter gave the ages of the children. The letter was not in court, and it does not appear what the record made by the witness’ husband showed. This record was produced and given to defendant’s counsel, who [191] did not try to introduce it, but who sought to ask questions concerning it with reference to other children. The court said that he did not see how this was material, and counsel does not seem to have cared to enlighten him. Nor has he enlightened us as to its bearing or importance. This he should have done, if he made any claim for it. If there was occasion to go into the ages of the other children, it could easily have been made to appear. The fact that in his charge the court referred to Eva as “the little girl” was not necessarily error. If she was a little girl, and we may presume that she was, or he would not so have described her, it was manifest to all who saw her, and, if she was really a large girl, the jury could not be misled by this description in their presence at the time; and erroneously calling her a little girl would not be likely to injure the respondent with the jury. The judgment should be affirmed. Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred with Hooker, J.