Crouch v. Fishbein

Citations

• 35 Ohio C.C. Dec. 607
• 29 Ohio C.C. (n.s.) 573

Syllabus

<p>WITNESSES</p> <p>1. Competency of Children of Tender Years as Witnesses is Question of Legal Discretion Reviewable on Error.</p> <p>When a child of tender years is offered as a witness, and objection is made to the competency of such witness, it is the duty of the court to examine or cause the witness to be examined and to determine as a matter of law whether or not the witness has sufficient ability to receive impressions and relate truthfully facts and circumstances connected with the transaction. The question of whether or not the witness is competent to testify is left to the sound decision of the trial judge, but such discretion is a legal discretion and subject to review in error proceedings duly prosecuted.</p> <p>2. Incompetency of Child Witness Raised at Close of Examination.</p> <p>If the ineompetency of a child witness is apparent from a consideration of the testimony of the witness, the question of such competency may be raised at the close of the examination of the witness by a motion to exclude the testimony of the witness, although no objection was made at the time the witness was offered.</p> <p>3. Child, Five and One-half Year Old Child Incapable of Relating Impressions Received Year Previous Incompetent.</p> <p>A court abuses legal discretion in overruling a motion to exclude the testimony of a child witness of whom it is apparent that the witness, a child of five and one-half years, has no comprehension of the nature of an oath and is incapable of relating truthfully impressions received a year previous concerning the transaction in issue.</p>