Page images
PDF
EPUB

to be relied on. It would, we think, be profaning the sancity of an oath to tender it to a man who had no present sense of the obligations it imposed. Hartford v. Palmer, 16 Johns. 143.

In a late case in Washington territory, it is held that the exclusion of an intoxicated witness from the court room and the refusal of the court to permit him to testify, is not error; but it might constitute ground for a new trial if the party who offered the witness informed the court of the importance of his testimony, and asked an adjournment of the trial until he became competent to testify, and the court refused the request. Fox v. Territory, 2 Wash. Ter. 297, 5 West Coast Rep. 339. See also Hartford v. Palmer, 16 Johns. 143; Gould v. Crawford, 2 Pa. 89; Cannady v. Lynch, 27 Minn. 435.

Where the degree of idiocy or lunacy is such as to impair the understanding, cloud the memory, thicken the speech and benumb the faculties, it works disqualification of the witness, and under every rule of propriety the person so situated should be excluded from the stand. Wherever their condition is such that they do not comprehend the nature of an oath, they should be rejected. Livingston v. Kiersted, 10 Johns. 362; Coleman v. Com. 25 Gratt. 865.

An insane person may be competent to testify to facts not relating to himself according as the court is satisfied with the degree of his understanding; and a person who has been insane, and is apparently recovered may testify to facts occurring during the period of this insanity, provided, that in both mentioned cases the facts testified to are objectively demonstrable, and constitute a basis from which to begin such testimony. A personal and selfregarding incident occurring during a period of insanity, and testified to by its subject either while still insane or when recovered from that state, is not per se an evidential fact, and its probative force rests wholly upon corroborating circumstances.

These conclusions are derived from principles in the law of evidence, which have become fixed by time and experience. See Sarbach v. Jones, 20 Kan. 497; Campbell v. State, 23 Ala. 44; Cannady v. Lynch, 27 Minn. 435.

The force of all human testimony depends as much upon the ability of the witness to observe the facts correctly, as upon his disposition to describe them honestly; and if the mind of the witness is in such a condition that it cannot accurately observe pass

ing events, and if erroneous impressions are thereby made upon the tablet of the memory, his story will make but a feeble impression upon the hearer. People v. New York Hospital, 3 Abb. N. C. 229. See Lewis v. Eagle Ins. Co. 10 Gray, 508; Coleman v. Com. 25 Gratt. 865; Rivara v. Ghio, 3 E. D. Smith, 264; Bell v. Rinner, 16 Ohio St. 45; Holcomb v. Holcomb. 28 Conn. 177.

c. Exception as to Deaf Mutes.-One of the crowning glories of an advanced civilization and one of the grandest achievements of educational methods has been the emancipation of deaf mutes from the horrible thraldom imposed by that forlorn and pitiful condition. The brutal dictum of Lord Hale, that persons so situated are to be deemed the same as idiots, has passed, like countless other provisions of the common law, into well merited oblivion. A doctrine so repugnant to every sentiment of benevolence, and so utterly at variance with common observation, has very properly been utterly rejected by our courts, and upon sufficient understanding being shown, a deaf mute may be sworn and give his testimony through an interpreter. Such a witness is competent in Indiana, if he has sufficient discretion and understands that perjury is punishable by law, though he has no conception of the moral obligation of an oath.

If he can write sufficiently well to communicate ideas perfectly in that way, he will be required to give his testimony in writing (Morrison v. Lennard, 3 Car. & P. 127) but he may resort to signs, though it appears that he can read and write and communicate ideas imperfectly, by writing. State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90; Com. v. Hill, 14 Mass. 207; People v. McGee, 1 Denio, 19; Reg. v. Guttridges, 9 Car. & P. 471; Reg. v. Megson, 9 Car. & P. 418.

d. Exception as to Infancy.-There is no precise age at which children are competent or incompetent. The question of competency is not to be determined by any precise age, but by apparent capacity. Brown v. State, 2 Tex. App. 115; State v. Richie, 28 La. Ann. 327, 26 Am. Rep. 100; Draper v. Draper, 68 Ill. 17; Flanagan v. State, 25 Ark. 92. Children of seven, eight and nine years of age are frequently sworn, and there is so wide a difference in the capacity of children that many of them are more intelligent at nine years of age than others are at ten or twelve. Children of fourteen are presumed to be competent, and

those who are younger than that will be sworn if they are really competent. Investigation, however, may disclose a sufficient understanding. Davidson v. State, 39 Tex. 129. And where a child eight years of age testified that she did not know what the Bible was, but believed that she must tell the truth on the stand, or be punished hereafter, she was permitted to testify. Com. v. Carey, 2 Brewst. 404, and see Vincent v. State, 3 Heisk. 120; Logston v. State, 3 Heisk. 414.

When a child is intelligent, the court will permit him to be sworn as a witness, leaving the value of his evidence to the jury. When a child under fourteen years of age is offered as a witness, the justice should examine him, so as to ascertain if he is competent, provided such a request is made by the opposite party. People v. McNair, 21 Wend. 608. If the child is naturally intelligent, but does not fully understand the nature of an oath, the justice may instruct him, by informing him of the moral obligations and of the legal consequences of false swearing. This may be done at the trial before swearing the witness. N. Y. Code Civ. Proc. § 850.

If the court examines a child to test its competency as a witness and finds it incompetent, it must be a flagrant case of error to authorize an appellate court to reverse the judgment. Peterson v. State, 47 Ga. 524.

When a witness is objected to, on the ground that he or she is incompetent by reason of nonage or want of intelligence, it is the province of the trial court to determine the witnesses's competency, and its decision cannot be reviewed unless there be a clear abuse of discretion, or the court admits or rejects the witness upon an erroneous view of a legal principle. Com. v. Mullins, 2 Allen, 295; Com. v. Hills, 10 Cush. 530; State v. Levy, 23 Minn. 104. The above rule has taken statutory form in the state of New York and reads as follows:

"Whenever in any criminal proceedings a child actually or apparently under the age of twelve years offered as a witness does not, in the opinion of the court or magistrate, understand the nature of an oath, evidence of such a child may be received though not given under oath if, in the opinion of the court or magistrate such child is possessed of sufficient intelligence to justify the reception of the evidence. But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence." 1 N. Y. Laws, 1892, chap. 279, § 392.

The admissibility of children is now regulated, not by their age, but by their apparent sense and understanding. It is a question addressed to the good sense and discretion of the judge whether the child is competent or not; but neither the testimony of the child without oath, nor evidence of any statement which he has made to any other person, is admissible. This is now the established rule in all cases, criminal and civil. In practice, it is not unusual to receive the testimony of children of eight or nine years of age. "It certainly is not law," said Baron Alderson, "that a child under seven cannot be examined as a witness." Crim. Law, § 19, citing Marsh v. Loader, 14 C. B. N. S. 535; Powell, Ev. (4th ed.) 29; 1 Stark. Ev. 117; 2 Taylor, Ev. § 1242; Com. v. Hutchinson, 10 Mass. 225; Reg. v. Nicholas, 2 Car. & K. 246; Reg. v. Holmes, 2 Fost. & F. 788; Reg. v. Oulaghan, Jebb, C. C. 270; Reg. v. Perkins, 2 Moody, C. C. 139.

Heard,

When a child of tender years is produced as a witness, it is the duty of the presiding judge to examine him or her without the interference of counsel further than the judge may choose to allow, in regard to the obligation of the witness's oath, and in proper cases, to explain the same to one intelligent enough to comprehend what he says; and then to determine whether or not such child shall be sworn and permitted to testify. Carter v. State, 63 Ala.

52.

e. Summary of the Foregoing Exceptions.-In digest form the exceptions to the general rule of competency may be tabulated as follows:

(1) One who is of unsound mind at the time of his production for examination, unless upon examination the court is satisfied that he has sufficient understanding to comprehend the obligation of an oath and to be capable of giving a correct account of the matters as to which he is to be examined as a witness.

(2) Children under ten years of age, who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.

(3) A public officer cannot be examined as to communications made to him in official confidence, when the public interests, in the opinion of the judge, would suffer by the disclosure or by his attendance as a witness.

(4) A judge of a court of record cannot be compelled to testify respecting occurrences before him in a judicial proceeding and relating thereto. Cal. Code Civ. Proc. § 1880.

§ 201. Credibility of Witnesses is for the Jury.—The jury are the exclusive judges of the degree of credibility to be attached to the testimony; and it is reversible error for the court to impair these functions. Moore v. State, 68 Ala. 360; Bowers v. People, 74 Ill. 418; Terry v. State, 13 Ind. 70; Knitner v. State, 45 Ind. 175; Ex parte Warrick, 73 Ala. 57.

They may consider his capacity and opportunities for observing the transaction to which he testifies-the indications of bias or prejudice for or against the accused-the hesitancy, vaccilation or contradiction with which he gives his testimony, his degree of interest in the prosecution, his occupation, his character, and, in fine, the general environment of the witness in reference to the transaction. People v. Robles, 34 Cal. 591; Jones v. State, 48 Ga. 163; Brown v. State, 18 Ohio St. 496; Chester v. State, 1 Tex. App. 702; State v. Smallwood, 75 N. C. 104; State v. Miller, 53 Iowa, 209; People v. Bodine, 1 Edm. Sel. Cas. 36.

The occupation of a person may always be shown, as bearing upon his credibility. United States v. Duff, 19 Blatchf. 9.

Witnesses with the best opportunity of knowing the facts are not to be believed in preference to other witnesses merely because of their superior opportunity, other conditions, such as general credibility, etc., not being equal. With equality in other respects, their better opportunity entitles them to be preferred. Gregory v. State, 80 Ga. 269.

While the law within certain limitations recognizes the competency of all men as witnesses, the question of their credibility may be seriously affected or totally impaired and in some instances utterly annihilated by the disclosures of the cross-examination whereby the moral rottenness of the witness is exposed, the entire absence of moral sense of accountability, the strong presence of a dominating sense, of personal gain or advantage-the equally controlling influences of affection and consanguinity, and in some instances the impulse and domination of unbridled malice. All these and other factors affecting the credibility of the witnesses are proper items for consideration by the jury and, in many instances, are of vital importance in the proper determination of the case.

I will here remark that the entire tenor and trend of modern legislation on the subject of the admission of parties as witnesses, and the removal of all disabilities that have heretofore hampered

« EelmineJätka »