The judgment of the Supreme Court is affirmed, for the reasons expressed by Mr. Justice Perskie whose opinion is reported in132 N.J.L. 52; 38 Atl. Rep. (2d) 441.
It was urged before us that the learned trial judge unduly limited counsel in the examination of a witness under fourteen years of age. The majority of the court does not think so.
The following is the rule of law applicable: "The adjudication as to capacity and responsibility" (of an infant under fourteen years of age to testify) "is to be made by the trial court. Its judgment is often said to be an exercise of judicial discretion. Whether that phrase properly describes the nature of the judicial act in admitting infant children as witnesses *Page 62 need not be determined. Whatever its nature may be, it is well settled that the judgment will not be reviewed on error unless it is plainly shown to have been made without any evidence to support it. State v. Cracker, 65 N.J.L. 410; State v.Tolla, 72 Id. 515." State v. Labriola, 75 N.J.L. 483.
The court granted cross-examining counsel the right to inquire as to the qualifications of the infant to testify, although the judge expressed himself as satisfied. In the exercise of this right counsel asked the following question: "Who told you that you would not go to Heaven if you did not tell the truth?" This question was properly overruled because it was obviously objectionable. There can be no profit in probing into the source of theological beliefs. The matter was not further pursued. The exclusion of an objectionable question is unavailing on error, even though there was an exception to the ruling.
The judgment is affirmed, with costs.
For affirmance — THE CHANCELLOR, PARKER, BODINE, WELLS, RAFFERTY, DILL, JJ. 6.
For reversal — CASE, HEHER, COLIE, FREUND, JJ. 4. *Page 63