View source for Hughes v. Detroit, Grand Haven and Milwaukee Railway (Michigan): February 10, 1887

For a chronological, annotated timeline of ''all'' the 19th century cases that mention "buggery," "crime against nature," or "sodomy" see:

=[[Timeline: Published U.S. State Appeals Case Reports, 1800-1899]]=


The following legal case is one of the 19th century cases those that mention "buggery," "crime against nature," or "sodomy".

"Crimes against nature" against girls under seven years old are referred to by a lawyer in this case in an argument about the competence of young children to testify in court about injuries they sustained by acts against them.


=Published Decision of the Michigan Supreme Court=

==JAMES HUGHES V. THE DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY COMPANY.==
<ref>This is the text of ''Hughes v. Detroit, Grand Have & Milwaukee Railway Company'', 65 Mich 10 (1887). Also published as 31 NW 603 (1887).</ref>


Negligence—Injury to boy riding on foot-board of engine—Charge to
jury—Competency of infant to testify.


1. Plaintiff sued for injuries sustained by being thrown from the
foot-board of a switching engine, which was making up and distributing
freight trains in defendant's yard, by a sudden start or
a sudden stop, the negligence averred being the failure of the
trainmen to put him off before moving, and the rapid action in
starting and stopping. The testimony was conflicting as to
plaintiff being on the foot-board, or, if there, as to his being seen
by the engineer, or whether, if seen at all, he was seen before or
after starting. The court instructed the jury not to find for the
plaintiff unless the engineer actually saw plaintiff on the footboard,
in which case he should have ordered him off before start


[End page 10]


ing the train, and said that it was conceded that the boy was on
the foot-board, and assumed the boy said the engineer saw him
before starting.


Held, that the court erred in treating controverted facts as undisputed,
and that, as the duty to keep off a child entirely could
not be quite the same as the duty which would arise from seeing
him already on a moving train, there was error in saying the
plaintiff should recover if the engineer saw him, without reference
to the time and circumstances of seeing him.


2. The law regarding the competency of children of tender years to
testify is fully discussed, and it is held that plaintiff's competency
was not shown, and the desirability of legislation suggested»
which is furnished by Act No. 82, Laws of 1887, providing for
the taking of the testimony of children under ten years of age, if
found to have sufficient intelligence and sense of obligation to
tell the truth, on their promise to do so, instead of upon oath or
statutory affirmation, such testimony to be given such credit by
the court or jury as it may appear to deserve.


Error to superior court of Detroit. (Chipman, J.) Argued October 21 and 22, 1886. Decided February 10, 1887.
Case. Defendant brings error. Reversed. The facts are stated in the opinion.


George Jerome (E. W. Meddaugh, of counsel), for appellant.

S. E. Engle, for plaintiff.

CAMPBELL, 0. J. Plaintiff, a little colored boy, who is
now between six and seven years old, and was, when injured,
five years old or under, recovered judgment in the superior
court of Detroit for personal injuries causing the loss of a
leg and some other damage. In July, 1884, towards the
close of the day, but during daylight, according to the claim
of his declaration, he was on the front of a switching locomotive
which was making up and distributing freight trains,
and standing upon a plank step used for switchmen and
brakemen to stand upon in their yard work, and, as he asserts,
was thrown off by a sudden start or a sudden stop, and


[End page 11]


run over. The negligence alleged was the failure of the
train men to put him off before moving, and the rapid action
in starting and stopping. Other facts were set up concerning
the condition of the yard in which the accident happened,
which ran from Hastings street across a block, and the use of
it as a place of pastime by children, and some similar matters,
all of which, although gone into on the trial, were finally
ruled to be improper by the judge in his charge, This
final ruling was in accordance with the decision of this Court
in ''Chicago & N.W. Ry. Co. v. Smith'', 46 Mich. 504, concerning
such premises, where it was held, in a very similar
case in all its circumstances, that the company could not be
held, under such circumstances, for anything less than
wanton and gross negligence involving reckless misconduct.
Under the charge, as already given, the jury were directed
not to find for plaintiff unless the engineer actually saw the
plaintiff on the foot-board. If so, the court held he should
not have started the train while the boy was on it, but should
have ordered him off; and, in giving this charge, the court
said it was conceded that the boy was on the foot-board, and
assumed the boy said the engineer saw him before starting.


[Space added to facilitate reading.]


It was not disputed, but admitted on the argument in this
Court, that, if the engineer actually saw the boy on the footboard
before moving, he would be bound to use efficient care
to prevent injury to him; but it is denied that he was on the
foot-board, or, if so, was seen by the engineer, or any one
else, in that position. The fact that the boy himself is the
only witness who says the engineer saw him renders another
question important, which is how far his testimony was admissible.
Upon examining the testimony, we find that, while there
are witnesses for plaintiff who swear to his being on the footboard,
they do not agree as to the circumstances or cause of
his being thrown from the board., On the part of the defense
there is testimony which is not consistent with his being


[End page 12]

there, as well as positive testimony that he was not seen if
there. The declaration does not aver that he was seen, but
merely that he might have been seen with proper diligence,
but it does aver he was on the board and thrown off.
There was conflicting testimony as to the likelihood or
possibility of seeing him on the board. He himself says he
ran back and forth over it while the engine was not moving,
and finally got on it just before starting, and then stayed on
till he fell off. He also says he faced the engine, while the
other testimony would not so indicate.


All of this shows the great importance of this particular
fact, and the danger of assuming it when the testimony conflicted.
So it was equally important to know whether, if
seen at all, he was seen before starting, as the duty to keep
off a child entirely could not be quite the same as the duty
which would arise from seeing him already on a moving
train. Most of the testimony indicates that there was nothing
unusual in the running or stopping of the train after it
started. This theory was not laid before the jury so as to
call their attention to its significance.


The boy's own testimony as to how he fell off is not quite
the same in the direct as on the cross-examination. On the
direct, the impression he gives is that he was thrown off by a
sudden starting and jerk. On the cross-examination he says
he was carried forward, and in no other direction, with the
engine, until near the switch, and then fell oft close by the
switch. Rosa Bushey, one of his witnesses, on the other
hand, says the engine went back with him towards Hastings
street before taking him east to the switch. Tean,another
of his witnesses, swore his back was towards the engineer
while he was standing on the board, and that his hands were
under the hand-rail. The testimony was by no means uniform
upon the important matters on which this charge bore.
The charge seemed to go upon the idea that the plaintiff's
account was the one to be chiefly acted on by the jury, in


[End page 13]


connection with his testimony concerning the engineer, and
there was no other testimony which covered that matter
directly. He does not swear positively that the engineer saw
him, but his testimony undoubtedly tends that way, but,
when all compared, leaves the time and circumstances of such
seeing in doubt. Without it, as the court substantially
charged, there was no case for the jury. In connection with
this there was testimony of the plaintiff himself that the engineer,
when he saw him, told the fireman not to ring the
bell until the little fellow got off, and there is no testimony
that after this warning the boy showed himself, if he did at all,
to the engineer. The court committed error in treating controverted
facts as undisputed, as well as in saying the plaintiff
should recover if the engineer saw him, without reference
to the time and circumstances of seeing him.


Passing by minor points, this makes it necessary to determine
concerning the admissibility of this proof. It has been
held by this Court, as well as courts generally, that the fact
that a child is under seven years does not create an absolute
disability to testify. This was held in ''McGwire v. People'',
44 Mich. 286,and is the doctrine of the text-books. But 
the authorities all agree that a child cannot testify unless
capable of appreciating the obligation of his oath, if he takes
an oath, or of his affirmation if that is substituted. And this
is upon the ground that a witness must be under some pressure,
arising out of the solemnity of the occasion, beyond the
ordinary obligation of truth-telling. 1 Greenl. Ev. § 367; 1
Phil, c 2 (C. & H.), and notes. One or the other of these
methods of attestation is required of all witnesses, children
or adults, and persons unsworn cannot testify unless they prefer
the other form, which in this State is under the pains and
penalties of perjury.


The fact that this child was to be put under oath or affirmation
was not brought to his attention at all, so as to show
whether he did or did not understand the bearing or effect

[End page 14]


of it. He merely said he must tell the truth, or he would
go to hell; but, when asked about any other consequences,
he showed entire ignorance, and only said that his mother
told him the day before that he would go to hell if he did
not speak the truth. This is all that he said bearing on his
veracity. He was examined by counsel, and not particularly
tested by the court, and the court, without making any personal
examination, or certifying or in any way giving an
opinion that the boy understood the nature or obligation of
an oath or affirmation, left it all to the jury, to be tested by
the ordinary questioning and cross-questioning by counsel.
This is what might, no doubt, be safe with many other
persons besides children who usually tell the truth, and may
have their truth substantially tested, whether sworn or not.
But the law entitles parties to insist that all witnesses shall
be put under some solemn obligation before testifying, and
excludes witnesses who are incapable of understanding its
sanction. As Mr. Starkie very well explains it, this is not
done because the law imputes guilt or blame to those who do
not appreciate it, but because it requires the highest attainable
sanction for testimony. 1 Starkie, Ev. 22. It is not
left to courts to let in everything which, in their general
opinion, or in the case of the particular witness, might be
safe. Neither does it rest on any particular belief. Any one
may take the oath or obligation that accords with his own
opinions, but he must do the one or the other. And he must
be able to comprehend it. Upon this there is no conflict in
the cases. It is necessarily to be left very much to the discretion
of the trial judge if he undertakes to exercise that
discretion, and acts upon such an examination as satisfies his
own mind. He should conduct this examination as in his
judgment will be effectual. It cannot safely be left to counsel
to make the examination. In McGuire's Case, before
referred to, the judge gave a careful personal examination to
the child, and formed a distinct opinion of his own, founded


[End page 15]


on that examination. As the preliminary inquiry cannot be
and is not under oath, there is the strongest reason for very
careful aption by the judge himself on his official responsibility.
The cases and text-books recognize this distinctly.
See -1 Greenl. Bv. §§ 367, 368, and notes; 1 Edw. Phil. Ev.
11, and notes. In England it has been held that recent
teaching for the occasion is not in itself sufficient, because
the knowledge thus received may not be comprehended. 1
Edw. Phil. Ev. 12; Bex v. Williams, 1 Car. & P. 320. A
careful judicial examination is much more satisfactory than
answers which may or may not be really intelligent. The
child's capacity and disposition to answer correctly and candidly
such questioning as may be given is of the utmost consequence,
because even among mature witnesses it is not
always easy to discriminate between actual knowledge and
what is accepted on hearsay and inference. It is obviously
necessary for the court to be satisfied that the child will be
disposed to tell the truth under some sense of obligation.
In children of tender age no reasonable person would expect
a complete power of discriminating between his means
and sources of knowledge; and more or less undesigned
coloring and misrecollection is almost inevitable. There can
be no criminal responsibility in a young child, and the care
used must therefore be rather in ascertaining his capacity
and disposition than in impressing the terrors of the law.
We are compelled to apply the law as we find it, until
changed by legislation.<ref>[Note 1 Act No. 82,Laws of 1887, provides: "That whenever a child under the age of ten years is produced as
a witness, the court shall, by an examination made by itself publicly
or separate and apart, ascertain to its own satisfaction whether such
child has sufficient intelligence and sense of obligation to tell the
truth to be safely admitted to testify, and in such case such testimony
may be given on a promise to tell the truth, instead of upon
oath or statutory affirmation, and shall be given such credit as to the
court or jury, if there be a jury, it may appear to deserve."</ref> But we are greatly impressed with
the practical imperfection of the present rales. In France,
and probably elsewhere, the courts refuse to administer an


[End page 16]


oath to children of tender years, and allow them to be examined
without anything more than suitable cautions, leaving
their statements on direct and cross-examination to be taken
for what they are worth. This seems to be a sensible proceeding,
and is probably quite as efficacious as our own system,
and less likely to abuse. There is a proper desire in
courts to receive such testimony as will throw light on the
case, and there is no doubt that in practice children are often
allowed to testify whose legal capacity to do so is very liberally
construed. It would be better, we think, to put their
testimony on the more rational ground that it is calculated
to be of some value, and capable, under a proper examination,
of being reasonably well weighed for what it is worth.
The other points do not require much consideration. It is
possible the instructions concerning damages were open to
some criticism, but the judge appears to have desired to prevent
any wild estimates, and it is not very easy to be precise
concerning all the elements to be considered in such a case.
The charge was intended to keep out improper considerations
as far as possible, and to undo some rulings made earlier in
the case which were found improper. In cases like this,
however, it is not possible, after argument, to undo the effect
of important testimony once in, and impressed on the jury
by counsel.


For the reasons given, the judgment should be reversed
and a new trial granted.


SHERWOOD and CHASIPLIX, J J . , concurred.

MOESE, J. [dissenting). In this case there is ample testimony,
outside of the evidence of Hughes, that the boy was
standing on the foot-board of the engine in such a position
as to be easily discernible by the engineer and fireman. The
foot-board was about eight feet in length, and the testimony
is undisputed that he stood upon the south end of this foot-


[End page 17]


board. The evidence of all who claimed to have seen him
there before the accident places him upon that end of the
board.


The measurements and experiments show that he could
have been seen from the front cab-window unless he stood in
a space in the center, not over three feet in width, leaving
from two and one-half to three feet of each end of .the footboard
visible, so that a boy siting down could have bean observed
from this cab-window.


The boy himself testifies that the engineer looked at him
when he got on the board, and before the engine started, and
that the engineer recognized that he was on by saying to his
fireman " not to ring the bell until the little fellow gets off."
In order to prevent a recovery in this case it is necessary to
get rid of the boy's testimony; and an earnest argument was
directed to this Court to establish the proposition that the age
' of the child, and his ignorance of the nature of an oath, as developed
by his preliminary examination in the court below,
should have led in that court to the rejection of his testimony.
I, for one, take no stock in this proposition, and have
but little patience to examine such an argument. I cannot
consent for a moment to any rule of law, however well fortified
by remote or later decisions of the courts, that will practically
exclude the testimony of children under seven years
of age, and leave them, in many cases, without redress for
wrongs committed upon them.


Our criminal annals are full of cases where little girls
under seven years of age are outraged and maltreated by
fiends in human form. They are entitled, above all others,
to the thorough and complete protection of the law; and I
shall place no obstacles in the way of the punishment of the
miserable and depraved beings who are capable of such crimes
against nature and the law. If an extraordinary intelligence
is required in the child, if she must understand the nature of
an oath or affirmation, and that without any recent teaching,


[End page 18]


as one English case seems to hold (''Rex v. Williams'', 7 Car. &
P. 320), before she can testify, then there is necessarily an
absolute prohibition against her testimony; and any injury
to her, unless some one is present to witness the act except
the perpetrator, must go unpunished and unredressed.
The most ignorant and depraved adult, under all the
authorities, can testify under oath or by affirmation, and no
preliminary examination to test his intelligence is required
or provided for. There can be found but few, if any, children
of the age of this colored boy that have any idea, without
teaching, of the nature of an oath. Though we may take
pains to instruct our children from the moment they can
prattle that they must tell the truth, it is seldom, if ever,
that we take the trouble to instruct our infants in the practice
of the courts, or the nature or the obligations of oaths there
taken. But if an injury should happen to one of them,
which ought to find redress in the courts, we would be apt,
and I think we would have the right, to then instruct the
child, not only to tell the truth, but of the nature and obligation
of the oath which it would be required to take.


The object of all judicial inquiry is to ascertain and determine
the truth, and an oath is but a means to that end. It
is not necessary now that an adult should believe in hell, or
any other punishment after death, in order to be a competent
witness; and the catechism of a child upon that subject, as
was done in this case, is not only ridiculous, but absurd.
Children should have at least equal rights with adults in
this respect.


There can be but little, if any, trouble, in these cases, of determining
the truth or falsity of the testimony of a child.


The danger of perjury comes from the examination of older
and more experienced persons, who take the oath at once,
without fear and without question. The proper way, in my
judgment, is to examine the child upon the subject of its
intelligence, and, if found capable by the trial judge of un-


[End page 19]

derstanding the nature and force of the oath or obligation
to be taken, after proper instruction by the court as to the
duty of telling the truth, and the consequences attending
falsehood, the oath should be administered, and the testimony
received by the court, to be tested and weighed by the
jury according to the usual standards.


In the present case, the boy evidently understood that he
must tell the truth, and that he would be punished here for
a falsehood, though he did not know what the punishment
would be, and thought that G-od would inflict it. Who will
say that he was not right even in this, or deny that Deity
does not in this world find means to punish the evil-doer
with the pangs of conscience, if not otherwise.
After the preliminary examination, the court permitted
the boy to be sworn, and said:


"I don't know, gentlemen; I think I will have to receive
the testimony for what it is worth. The jury can judge as to
the competency of his statement. My experience and observation
has been—and it has been quite extensive—that where
children have to tell a complicated story, if they make mistakes,
the mistakes are very apparent to the jury. You have
the power of cross-examination, and such cross-examination,
if conducted kindly and fairly, as I know it would be in this
case, will lay before the jury quite accurately the intelligence
of the boy, and the degree of credit that he ought to receive."
I think the court did not err in this action, and that his
remarks were sound, in common sense and in law.
The boy was closely and keenly cross-examined by competent
and shrewd counsel, and displayed an intelligence upon
such examination not surpassed by any witness, and not
equaled by some. And his evidence impresses me with its
truth. His story of the transaction is candid and straightforward
throughout, and unusually intelligent in its detail.
The jury believed it, and there is, in my opinion, absolutely
no reason for shutting it out of the case. If we are to discard
the simple, unaffected narration 'of this child because
he is not of an age to be punished criminally for telling a lie,


[End page 20]


and yet to receive in all cases, as we do, the evidence of suspected
and condemned felons, Bubject only to the credence
that a jury may give them, then the law is not, as I understand
it, a safeguard and a protection to the innocent, and a
terror to the evil-doer.


I find no error in the proceedings, and believe that the
judgment is right as it now stands.

=Link to the PDF of the Original Case Report=

[http://books.google.com/books?id=Rws8AAAAIAAJ&dq=northwestern%20reporter&pg=PA603#v=onepage&q&f=false ''Hughes v. Detroit, Grand Have & Milwaukee Railway'', 31 NW.603(1887)]

=Downloads of PDFS of Page Images of Court Documents=

==Briefs and Records from the Appellate Case before the Michigan Supreme Court:==

*[[Media:Hughes_Brief_for_Plaintiff.pdf‎ |Brief of Plaintiff]]

*[[Media:Hughes_Record_1.pdf‎ |Record, part 1]]

*[[Media:Hughes_Record_2.pdf‎ |Record, part 2]]

*[[Media:Hughes_Record_3.pdf‎ |Record, part 3]]

*[[Media:Hughes_Brief_of_Appellant.pdf‎ |Brief of Appellant]]

''Originals held by the Library of Michigan''

==See also:[[Timeline: Published U.S. State Appeals Case Reports, 1800-1899]]==

=Notes=
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