The defendants were convicted of having killed one Borowiec, in his own house, on September 11, 1890. Borowiec and the defendant Anna Ledwon were then husband and wife. The defendant Joseph Ledwon had at different times prior to the death of Borowiec occupied a room in his house, for which he paid rent to Anna. He purchased and paid for material for food, and the defendant Anna Ledwon cooked and prepared it for his use, and he paid her for such services. That is a common way of living among people of their class in Buffalo. The evidence in the case justifies the inference that at the time, and for quite a period of time prior to Borowiec’s death, Joseph and Anna Ledwon had been unduly intimate; and, in the light of all the facts and circumstances of the case, it may fairly be said that the defendants are shown to have had an adequate motive for the commission of the crime of which they have been charged, and of which they have been convicted. Stephens v. People, 19 N. Y. 549. It is strenuously urged by the counsel for the defendants that the people failed to establish the corpus delicti of the offense charged by competent and sufficient evidence upon the trial. The death of Borowiec was proven by direct evidence, and so was the fact that his death was caused by the criminal agency of Joseph Ledwon, if the testimony of the boy Wladeslaus Boroweic, a son of the deceased, was properly submitted to the jury, and is sufficient to establish the fact it was intended to. This witness testified directly to the fact that he saw Joseph and one Zawaczki kill the deceased. For the purpose of this appeal, I assume that this witness, who was eight years old when his father died, understood and appreciated the nature of the oath under which he testified, and was a competent witness. The trial court, in a carefully written opinion on denying the motion of the defendants for a new trial, says, in speaking of this boy upon the trial:
“It was not satisfactory testimony, it is not satisfactory tes*56itmony now, but it supplied one missing link. The whole case, taken together,—all the evidence—tends to bring the mind to the conviction that these defendants were guilty of the crime with which they were charged, and that independent of the testimony of the boy; but the whole evidence, taken together, would have been insufficient to convict the defendants, were it not for the link of testimony supplied by the boy’s evidence.” On the trial the court charged the jury, among other things, that, unless the testimony of the boy satisfied them beyond a reasonable doubt, that he saw Joseph Ledwon and ZawaezM kill his father, they should reject such testimony, and give it no force at all. The people claim that the jury was justified in believing that part of the testimony of the boy which tended to prove acts of violence by Joseph and Zawaczki upon the body of his father, which caused his death, and that Anna, the mother of the witness, was present and consenting to-the criminal acts. It is insisted by the people that the evidence was proper for the consideration of the jury, under the rule prescribed by section 714 of the Penal Code, and adjudged cases which hold that when it appears that when a witness has sworn diff erently upon the same point upon different occasions, or where he makes contradictory statements concerning the same matter while testifying in a given case, his testimony is not to be stricken from the case, nor wholly excluded from consideration by the jury, but remains in the case, to be considered in connection with the other evidence, under such prudential instructions may be given by the court. This rule has no application to a case where the testimony given by a witness is, as the trial correctly pronounces the testimony of this boy Wladeslaus to be, “in a hopeless contradiction, * """ """ ' confession that he has not only testified untruthfully upon this trial, but that he testified untruthfully upon another trial involving this transaction.” Wherp, in short, the testimony is utterly and absolutely contradictory, unreconcilable, inconsistent, unexplainable, and where there is no way of determining beyond a reasonable doubt, or with reasonable certainty, what part is false and what part is true, the rule contended for by the people does not apply, and such seems to be the case before us. The only safe way, in such *57a case, is to apply the maxim, “Falsus in uno, falsus in omnibus.”
After this boy Wladeslaus had been examined at length by the district attorney, as a witness for the people, and cross-examined by the defendant’s attorney, he was taken into a room and questioned in private by the assistant district attorney. The district attorney thereupon came into court with the boy, and stated to the court, in the presence and hearing of the jury, what he claimed the boy had said to him in private, and asked permission to replace the boy upon the stand as a witness, for the avowed purpose of having some .of those statements by the boy made to the court and jury, as evidence in the case. Leave was given, and the boy again took the stand as a witness for the people. To this the defendants objected and excepted to the ruling of the court. In his statement to the court in asking leave to recall the boy, the assistant district attorney stated, among other things, that a brother of the defendant Joseph Ledwon was imprisoned in Limestone Hill reformatory for stealing coal; that the boy, up to the time he was placed on the stand (as a witness in this case, presumably), had never, to any one in the district attorney’s office, made any statement other than that which he made before the grand jury, and which was, in substance, as he had asked the boy while testifying as a witness in this case. The boy had denied that he so testified before the grand jury. The claim of the district attorney was that the boy testified before the grand jury that his bed was in the same room they choked his father-in; that Ledwon and Zawaczki were choking him, and his mother was kneeling on his breast. It was stated by the district attorney, as a fact, that t-he boy testified before the grand jury to the facts as he (the district attorney) claimed them to be. That statement by the district attorney contains the only language used by any person on the trial indicating that Anna Ledwon actively participated in the killing of her husband. The fact indicated by the statement of the district attorney as to- Anna Ledwon’s active participation in the crime was disputed by the boy, who was the only witness who spoke concerning it. His evidence is that the killing was done by Joseph and
*58Zawaczki, and his mother took no active part in it. The statement so made by the district attorney, in my judgment, may well have been, if it was not in fact, necessarily prejudicial to the defendants. People v. Greenwall, 115 N. Y. 526; 26 St. Rep. 226 People v Wood, 126 N. Y. 269; 36 St. Rep. 952. If it should be held eventually in this case that the boy Wladeslaus is shown by his testimony to be incompetent as a witness, for lack of understanding and intelligence, the result would be the same as it must be as the case stand. A human being should not be deprived of liberty on such testimony as that given by this boy, and it is conceded that without it a conviction would not have been warranted. See People v. Quick, (Mich.) 25 N. W. 302; Hardtke v. State, (Wis.) 39 N. W. 726.
These views necessitate a reversal of the judgment of conviction, as to both of the defendants, without reference to the ■effect, if any, which ought to be given to tire affidavits of good character used upon the motion for a new trial on ground of mewly-disco.vered evidence.
"NOTE ON “CHILD AS WITNESS.”
No precise age, within which children are excluded as witnesses, is fixed. People v. Linzey, 79 Hun, 23; 61 S. R. 240 ; 29 Supp. 560.
Their competency depends upon their intelligence, judgment, under■standing and ability to comprehend the nature and effect of an oath. People v. Linzey, 79 Hun, 23; 61 S. R. 240; 29 Supp. 560.
Child, who knows that he will be punished, if he tells an untruth, may .testify. Agnew v. B. C. R. R. Co., 24 S. R. 744.
Unsworn statements of a child not taken in any case. People v. Frindel, 58 Hun, 482; 35 S. R. 805.
If, under twelve years of age, the court is, in the exercise of a sound discretion, to determine whether the witness has the requisite capacity. People v. Linzey, ante. This discretion will not be interfered with upon appeal, except upon a clear showing of its abuse. Id.
If the magistrate believes that a child under twelve ;rears of age ought not to he subject to the obligations of an oath, Ms statement may be taken not on oath. People v. O’Brien, 74 Hun, 264; 56 S. R. 352; 26 Supp. 812. Such statement is not sufficient to convict, unless ■corroborated or supported by other evidence. Id.; People v. Sn_th, 86 Hun, 485; 67 S. R. 670.
The unsworn evidence of defendant’s little ten-year-old daughter was held to have been properly received and her statement clearly *59supported by other evidence, as required by section 393 of Code of Criminal Procedure. People v. Pustolka, 149 N. Y. mem. 4.
Where child is incompetent to give either sworn or unsworn testimony on the trial of a criminal action, her statements, made out of court, though in the presence of the defendant, are incompetent. People v. Quong Kun, 68 S. R. 139.
When boy of eleven years of age shown to be competent to testify. Jones v. Brooklyn, B. & W. E. R. R. Co., 21 S. R. 169.