dissenting.
According to the testimony for the state, defendant and Connett drove away from the ranch about 4 o’clock Sunday afternoon, saying that they were going to the neighborhood of Hershey, where they expected to find work. The following morning defendant drove Con-nett’s team and wagon to - a livery stable in Hershey. He there sold the team and wagon for $250, executed a bill of sale therefor, and signed thereto the name “Vernon Connett.” He received in payment a check made payable to “Vernon Connett.” He wrote the name “Vernon Connett” thereon and cashed the check at a local bank. He then went to the post office and *209wrote a postal card, directed to “Mrs. Connett, Mason City, Neb.” On this card he wrote: “Dear girl. Glad you are all right. Roy went to South Dakota. I am going to do some hauling. Don’t write for 3 or 4 days, I won’t be in town. V. C.” He mailed this card to Mrs. Connett. Taking the trunks and personal baggage belonging to Connett that were in the wagon, he hired a conveyance which conveyed him and this baggage to North Platte. He there took a train to Lincoln, called on the secretary of the state prison board, made his monthly report as was required under his parole, then went to the penitentiary and reported to the warden, and after staying around the city of Lincoln a day or two returned again to the ranch where his mother was living, paid a short visit to the family and again departed. Soon thereafter a search was instituted for Connett; the postal card which defendant had mailed was discovered to be a forgerv, the team was located, and it was generally understood that Connett had met -with foul play. Defendant’s parole was revoked and he was again placed in -the penitentiary. His mother and stepfather were arrested, but, so far as the record discloses, no formal complaints were filed against them. They told a number of conflicting stories, but finally gave information which led to the discovery of Connett’s body in the bed of the Platte river near the town of Hershey, in Lincoln county, January 13, 1915. Decomposition had progressed to such a degree that the body could not be identified by the features, but it was identified beyond question by the clothing, teeth, and other marks. Three puncture fractures were found in the skull, one in the frontal bone and one on either side, and the testimony shows that any of these might prove fatal. There is no direct proof as to how these fractures were produced, nor by what hand the blows were struck. The case, so far as the state is concerned, rests on the testimony of Charles Clayton, the stepfather, and Johnny Jones, a 17-year-old boy *210who worked on the ranch, corroborated by the conduct of defendant and supported by his conflicting stories. Clayton and Jones testify that defendant and Connett left the ranch together on Sunday evening, August 2, the evening before defendí int sold Connett’s team in the town of Hershey.
The defendant, testifying in his own behalf, admitted meeting Connett and family in North Platte, and all the incidents as shown by the state down to Sunday afternoon. His story as given on the trial is that during the afternoon he' and Connett engaged in a quarrel; that Connett knocked him down and was in the act of choking him when he called for help; that his stepfather, Clayton, rushed out j with a hammer, struck Con-nett on the head, felled h:m to the ground, and then struck him two or three blows with the hammer, and that Connett instantly died. He then says that Clayton, Mrs. Clayton, defendant’s mother, and defendant carried the body 75 or 100 yards and hid it in a clump of weeds; that later they carried the body back again, put it in a wagon, and that he drove away with this body, with directions from Clayton to hide it so as to conceal the crime, and to then proceed to Hershey and sell the team and wagon; that, pursuant to these instructions from Clayton, he took the body to the point where it was later found in the river bed; made the sale of the team, wrote the postal card, and went to North Platte, where he divided the proceeds of the team with Clayton.
This entire story is denied by Clayton. It is also denied by Jones. Jones is referred to by counsel for defendant as an idiot, and it is strenuously insisted that his testimony is not worthy of belief. Although 17 years of age, he had never advanced beyond the fourth grade in school, and he seems to be subnormal mentally. Nevertheless he tells a straightforward and convincing story. He was cross-examined at length without his testimony being shaken in the least, and *211there is nothing to indicate that he had any disposition to depart from the truth.
A number of assignments are directed to the admission of exhibits. These exhibits relate to matters which the defendant later admitted in his own testimony. This was properly a part of the state’s case, and their admission could not have been prejudicial.
During the trial the court, on its own motion, made the following finding: “By reason of the insufficiency of the court-room to seat and accommodate the people applying for admission, and also by reason of there being some question as to the safety of the building crowded to its full capacity as it is, it is by the court ordered that the further trial of this cause be had at the Keith Theater, and thereupon the court was adjourned to Keith Theater, where the trial proceeded” — • and transferred the trial from the Lincoln county courthouse to the Keith Theater in the city of North Platte. There the court, attorneys, witnesses, and jury were seated on the stage, and the body of the house was filled with spectators. Defendant’s counsel objected to the transfer of the trial, and also objected to the seating of the witnesses for the state on the stage, and asked that they be excluded from the room during the trial. His objections and motion were overruled; the court saying that there were no adequate accommodations for the witnesses elsewhere.
During the progress of the trial the court bailiff made the following announcement from the stage of the theater as court was about to take a recess: “The regular show will be tomorrow; matinee in the afternoon and another performance at 8:30. Court is now adjourned until 7:30.” This -announcement of a show did not refer to the trial, but to an exhibition to be given by a troupe of professional actors, and it seems to be conceded that the arrival of this show troupe necessitated the surrender of the theater, and that thereafter the trial was conducted in the courthouse. *212The administration of justice ought not to he confused or confounded with shows and entertainments. The trial ought to have been conducted in the courthouse with the decorum becoming a judicial investigation where a defendant is on trial for his life. However, after carefully reading all of the testimony, I find the evidence of defendant’s guilt so strong that I cannot concur in an opinion that sets aside the verdict of the jury merely because the court, in this respect, turned aside from the beaten path of judicial procedure.
In addition to the witnesses who testified for the state, there were present at the ranch on that Sunday afternoon defendant’s mother and his half-sister, Nellie Roberts, a child then just past six years of age. Defendant’s mother was not called as a witness by either side as to what occurred at the ranch, but defendant asked to have the little girl called as a witness. Thereupon the court interrogated the little girl’s mother, but without putting her under oath, and elicited the information that the child had gone to school two or¡ three months, and that she had attended Sunday school “part of the time,” and then, turning to the jury, the court said: “Gentlemen, this is a child. She has not reached the age of seven years. She has not gone to school to exceed three months. We all know that at that immature age children get ideas from suggestion. To the court’s mind it would be cruelty to attempt to force a child of that immature age; she doesn’t know or understand any of the obligations of the oath, and therefore the court will not permit her to be put upon the stand, because of her immature age and because of her inability to understand and know the obligation of an oath. The child is of that immature age that as soon as the suggestion is made that she come upon the stand, even though accompanied by her mother, she breaks down and cries through fear, and this takes place in the court’s presence and hearing.”-
*213Thereupon counsel for defendant offered to call witnesses and have them examined relative to the competency of the child, hut the offer was denied. He then offered to' prove by the child that a fight occurred at the ranch substantially as detailed by the defendant. This offer was also denied, and the ruling of the court is assigned as error.
“No fixed rule can be laid down as to the age a child must be to entitle it to testify as a witness in a court of justice. The question of competency of a person to be a witness must be left to the sound legal discretion of the trial judge, leaving to the jury to determine the credit that ought to be given to the testimony.” Davis v. State, 31 Neb. 247, 255.
The court has made a specific finding as to the appearance and conduct of the child, and in the exercise of that sound legal discretion which is vested in the trial judge has excluded the testimony. The mother of the child was present and might have been called to prove the same matters sought to be proved by the child. It nowhere appears that she was unfriendly to the defendant, nor is -.any reason given for not calling her. It was suggested in argument that she might conceal the truth in order to protect her husband, but we can hardly indulge the belief that this woman, who was then living with her third husband, would conceal the truth to protect the husband, when its concealment might send her son to the electric chair.'
Of the court’s refusal to ■ exclude the witnesses, from the stage of the theater, it may be said that the instant case is peculiar in that the major portion of the testimony is undisputed. The usual danger of a witness being influenced by the testimony of another witness where he is permitted to remain in the courtroom and hear the examination was not present., and under the circumstances the court was not *214guilty of such an abuse of discretion in this regard as calls for a reversal of the judgment.
After the jury had been instructed and retired to the jury-room, they called upon the bailiff for exhibits that had been offered in evidence. The bailiff then permitted a number of jurors to go into the court-room proper, where the exhibits had been left, and he, together with these jurors,, gathered up the exhibits and carried them to the jury-room. Among these exhibits was deceased’s skull, and a shirt which was found on the body when it was discovered. In support of a motion for a new trial, defendant set out an affidavit of a juror, in which it was alleged that the jurors, after having procured these exhibits, attempted to fit the shirt over the skull, and so arranged it as to bring a hole in the shirt over a hole or fracture in the skull, and that from their experiments with these exhibits they reached the conclusion that, as deceased was disrobing and had his shirt pulled over his head, he was struck and killed by the defendant, thus disproving his story of the fight at the ranch. The exhibits had been offered and received in evidence. The defendant by his own story had sufficiently identified them. The skull is shown to have been found in the river bed where defendant testified he put the body of deceased. The marks it bore were such as corresponded to his theory of the killing, and the issues had been narrowed down to the point where the jury were left with practically nothing to determine but the time, place, and person who did the killing, was it at the ranch in the afternoon, and were the blows struck by Charles Clayton, or was it some time during the succeeding night, and were the blows struck by the defendant. An examination of the exhibits could not work to his prejudice.
When we consider the numerous conflicting stories told by the defendant, stories which he now admits *215to be untrue, together with his disposition of the deceased’s property, the writing of the postal card to the widow, and the unreasonableness of the story he told at the trial, it seems to the writer that his guilt was fully proved. A heinous crime has been committed; all. the facts and circumstances bearing on its commission have been submitted to a jury; defendant was represented by able and zealous counsel; a' verdict in harmony with the evidence has been returned; a judgment that fits the crime has been pronounced; and that judgment ought not to be set aside for technical .errors that do not affect the substantial rights, of the defendant.
Barnes, J. I concur in this dissent.