WITNESS (Anglo-Saxon witan, to know). One who testifies to what he knows. One who testifies under oath to something which he knows at first hand. 1 Greenl. Ev. §§ 98, 328.
One who is called upon to be present at a transaction, as, a wedding, or the making of a will. When a person signs his name to a written instrument to signify that the same was executed in his presence, he is called an attesting witness.
The principal rules relating to witnesses are the same in civil and in criminal cases, and the same in all the courts, as well in those various courts whose forms of pro ceeding are borrowed from the civil law, as in those of the common law ; 3 Greenl. Ev. §§ 249, 402 ; 2 Yes. Ch. 41; Dwight v. Pome roy, 17 Mass. 303, 9 Am. Dec. 148. There is no presumption that a witness will or will not speak the truth ; Chicago U. T. Co. v. O'Brien, 219 Ill. 303, 76 N. E. 341; State v. Taylor, 57 S. C. 483, 35 S. E. 729, 76 Am. St. Rep. 575; State v. Halverson, 103 Minn. 265, 114 N. W. 957, 14 L. R. A. (N. S.) 947, and note, 123 Am. St. Rep. 326; contra, Cornwall v. State, 91 Ga. 280, 18 S. E. 154 ; State v. Jones, 77 N. C. 520. In California there is a statutory presumption that a witness, un contradicted, tells the truth ; Code Civ. Proc. § 1847 ; and this requires an instruction to the jury to that effect; Fries v. American Lead Pencil Co., 141 Cal. 612, 75 Pac. 164. See BIAS.
As TO THE COMPETENCY OF WITNESSES. The question of the competency of a wit ness is for the court, and not for the jury ; State v. Michael, 37 W. Va. 565, 16 S. E. 803, 19 L. R. A. 605 ; State v. Doyle, 107 Mo. 37, 17 S. W. 751; Mead v. Harris, 101 Mich. 585, 60 N. W. 284; and the determination, being of a matter of fact, is not, as a matter of principle, reversible ; Freeny v. Freeny, 80 Md. 406, 31 Atl. 304 ; Com. v. Rohinson, 165 Mass. 426, 43 N. E. 121; and an objection to competency is not necessarily waived if not taken before his examination in chief ; Hill v. Postley, 90 Va. 200, 17 S. E. 946.
All persons, of whatever nation, may be witnesses ; Bacon, Abr. Evidence (A). But in saying this we must, of course, except such as are excluded by the very definition of the term ; and we have seen it to be es sential that a witness should qualify himself by taking an oath. Therefore, all who can not understand the nature and obligation of an oath, or whose religious belief is so de festive as to nullify and render it nugatory, or whose crimes have been such as to indi cate an extreme insensibility to its sanctions, are excluded. And, accordingly, the follow ing classes of persons have been pronounced by the common law to be incompetent.
Infants so young as to be unable to ap preciate the nature and binding quality of an oath. A. child under the age of fourteen is presumed incapable until capacity be shown, but the law fixes no limit of age which will of itself exclude. Whenever a child displays sufficient intelligence to ob serve and to narrate, it can be admitted to testify; 7 C. & P. 320; McGuff v. State, 88 Ala. 151, 7 South. 35, 16 Am. St. Rep. 25 ; Com. v. Lynes, 142 Mass. 577, 8 N. E. 408, 56 Am. Rep. 709. A child five years old has been admitted to testify ; 1 GreenL Ev. § 367; 3 C. & P. 598 ; •Com. v. Hutchinson, 10 Mass. 225 ; State v. Juneau, 88 Wis. 180, 59 N. W. 580, 24 L. R. A. 857, 43 Am. St. Rep. 877 ; Wheeler v. U. S., 159 U. S. 523, 16 Sup. Ct. 93, 40 L. Ed. 244. But if the child is not sufficiently instructed on this "point," the trial may be put off, in order to give the necessary instruction; 2 Leach, C. C. 86; but only in the discretion of the court ; 2 C. & K. 246. The law presumes that all wit nesses tendered in a court of justice are not only competent but credible. if a witness is incompetent, this must be shown by the par ty objecting to him; if he is not credible, this must be shown either from his examina tion, or by impeaching evidence aliund,e; 1 Whart. Ev. § 392.