(Syllabus.)

1. Witnesses — Competency of Child as Witness. The question of the competency of a witness under 10 years of age is a mixed question of law and fact addressed peculiarly to the discretion of the trial court. When a witness is objected to on the ground of incompetency by reason of nonage, the trial court should examine and determine the witness' competency, and if it affirmatively appear that the witness is incapable of receiving just impressions of the facts respecting which such witness is examined or of relating them truly, such tetsimony should be rejected; otherwise it should be admitted.

2. Homicide — Crime Murder or Manslaughter According to Facts. The law holds human life in high regard. It does not permit an aggrieved person to inflict punishment upon a wrongdoer by slaying him. When he does so, he will be guilty of murder or manslaughter, according to the facts in the particular case.

Appeal from District Court, Pottawatomie County; Earl Welch, Assigned Judge.

G.W. Moore was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Hendon & Hendon and Kienzle & Hickok, for plaintiff in error.

J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the State.

EDWARDS, J. The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie county of manslaughter in the first degree, and he was sentenced to serve a term of six years in the state penitentiary.

Defendant was running a small restaurant near Hoover City, an oil field town, near the city of Maud. His wife worked at this restaurant, and the homicide was due

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to jealousy on account of attentions paid by W.R. Stover, deceased, to defendant's wife. The fatal shooting occurred at the rear of the restaurant; deceased was shot twice. The evidence is that he was unarmed at the time. The plea of self-defense was interposed.

The principal witnesses for the state were Royal and Doyle Purdon, two boys eight years of age who lived with their parents next door to the restaurant. Defendant contends that they were not competent witnesses as not understanding the nature and obligations of an oath as required by section 589, Comp. St. 1921. Before they were admitted as witnesses, the court questioned them at some length. They evidently received just impressions and were able to relate them clearly, correctly, and truly. From this examination they appear thoroughly qualified to testify under the rule in the cases of Darneal v. State, 14 Okla. Cr. 540, 174 P. 290, 1 A. L. R. 638; Barker v. State, 33 Okla. Cr. 25, 242 P. 274, 275; Stuart v. State, 35 Okla. Cr. 103, 249 P. 159.

Further complaint is made that the evidence does not sustain the judgment and that the jury did not follow the instructions of the court. The contention is not tenable. The record discloses that defendant was 56 years of age, had previously been convicted in the state of Texas on a charge of murder; his wife was his second marriage; she was about 19 years of age. The evidence indicates deceased may have been guilty of some liaison with her, but at the time of the homicide he was in the rear of the restaurant attempting to hide from defendant. The defendant may have had a cause of grievance against deceased, but an aggrieved person is not permitted to take the law in his own hands and slay an offender under the circumstances here proven. Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707, 45 L. R. A. (N.S.) 153; Steeley v. State,

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17 Okla. Cr. 252, 187 P. 821. The jury must have been so impressed, for otherwise the evidence would warrant a much more severe penalty than that imposed. We find no material error in the record.

The case is affirmed.

DAVENPORT, P.J., and CHAPPELL, J., concur.