Request By:
Reverend Patrick McDaniel
31 Greenview Drive
Florence, Kentucky 41042
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You, as a minister, have been licensed under KRS 402.060 to solemnize marriages in Kentucky.
The bride-to-be has a 12 year old sister she wants to witness her wedding.
Your question: May a twelve year old person validly witness a marriage?
Two witnesses, other than the parties to the marriage and the person solemnizing the marriage, are required. KRS 402.220 reads:
"The person solemnizing the marriage or the clerk of the religious society before whom it was solemnized shall within three (3) months return the license to the county clerk of the county in which it was issued, with a certificate of the marriage over his signature, giving the date and place of celebration and the names of at least two (2) of the persons present."
KRS 402.050(2) requires at least "two persons" 1 to be present at every marriage. (Emphasis added).
The key phrase in the above two statutes is "two persons present." (Emphasis added). There is nothing in that language to suggest that the witness must be of legal age, which for general purposes is eighteen (18). See KRS 2.015.
A child who lived four days was held to be a "person" within the wrongful death statute. See KRS 411.130, and § 241, Ky. Const., and City of Louisville v. Stuckenborg, Ky., 438 S.W.2d 94 (1969) 95. The court in effect held that "person" was a general word.
Similarly, the Supreme Court of Tennessee, in interpreting their wrongful death statute, which uses the phrase, "a person whose death is caused by the wrongful killing," etc., ruled that the word "person" is comprehensive and embraces every human being, male and female, married and single. Southeastern Aviation, Inc. v. Hurd, Tenn., 355 S.W.2d 436 (1962) 442.
A "person" who deprives others of their civil rights under the federal statute was equated with an "individual", a human being. Patrum v. City of Greensburg (U.S.C.A. -6, 1970) 419 F.2d 1300, 1302.
The Appellate Court of Illinois, in People v. Guzzardo, 4 Ill.App.2d 355, 124 N.E.2d 39 (1955) 41, interpreted a statute providing in part that "If two or more persons assemble for the purpose of disturbing the public peace," etc., the persons offending shall be fined etc. (Emphasis added). The court wrote that a '"person' is a generic word of comprehensive nature; * * *; it certainly includes human beings; * * *. It is not a technical term, or a word of art, and it has a simple, ordinary, common, popular meaning, unless such is inconsistent with the manifest intent of the General Assembly or repugnant to the context of the statute."
The case of State v. Logsdon, Iowa, 248 N.W. 4 (1933), involved the construction of a statute, which provided for licensing of itinerant vendors of drugs, and defined such vendors as any "person" who goes from place to place and sells drugs, etc. (Emphasis added). The court wrote that "any person" is a very broad term and includes anybody: Any being having life, intelligence, will and separate individual existence; * * * a human being, an individual of the human race, a living human being; a living person composed of body and soul, a man, woman, or child; * * *."
While the witnessing of a marriage is not a part of a judicial proceeding, the rule governing the testimony of infant witnesses states a principle useful to our analysis.
There is no unalterable rule measuring the competence of a witness because of age. The determination of the competency of a child witness rests within the sound discretion of the trial judge. When the competency issue is properly raised during the trial, it is the duty of the court to carefully examine the witness to ascertain whether she (or he) is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth. Hendricks v. Commonwealth, Ky., 550 S.W.2d 551 (1977) 554.
Returning to the two witnesses to a marriage, as required under KRS 402.220 and 402.050, it is our opinion that the term "persons present" is so broad as to include any two human beings or individuals, male or female, present at such wedding, regardless of age. However, where the witnesses are infants (under 18), we are of the opinion that the witnesses would qualify where it appears to the person solemnizing the marriage that such infant witnesses are sufficiently intelligent to observe, recollect and narrate (if it were ever necessary) the critical facts as to the marriage and identity of the parties to the marriage, and have a moral sense of obligation to speak the truth (if and when called upon).
Specifically the twelve (12) year old girl would be a legal witness to the marriage, provided she meets the rule of intelligence and morality as to truth stated just above. You as minister can readily make that evaluation.
We believe this construction of "person" is in harmony with the general intent of the legislature and with the context of the statute.
Footnotes
Footnotes
1 In addition to the parties and the person solemnizing the marriage.