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birth is presumed by law to be an idiot (ƒ), yet if he can be communicated with either by signs and tokens (g), or by writing (h), and it appears that he is possessed of intelligence, and understands the nature of an oath, he may be examined as a witness. In one case, where it appeared that such a person could write, Best, C. J., doubted whether he ought not to be compelled to give his evidence in that way, and not by signs (i); but it would be difficult to maintain this as a position of law, however it might hold good on a principle of convenience. Neither of these modes of giving evidence is derivative from or secondary to the other; besides, a deaf and dumb witness might be very expert in making and understanding signs, and yet express very indifferently his thoughts by writing. In a much more recent case, before Lord Campbell, which was an action for seduction, the seduced party was deaf and dumb, but could write very well, and two letters written by her to the defendant were put in evidence. Her examination in court, however, was chiefly carried on by signs, and, occasionally, when these were not understood, by writing (k). So a lunatic while in a lucid interval is a competent witness (1) but whether the evidence of a monomaniac, i. e. a person insane on only one subject, could be received on matters not connected with his delusion was unsettled until recently; and some text writers thought it the safest rule to exclude the testimony of such persons, it being impossible to calculate with accuracy the extent and influence of such a state of mind (m). This would be hard
(f) 1 Hale, P. C. 34.
(g) 1 Phill. Ev. 7, 10th Ed.; R. v. Ruston, 1 Leach, C. L. 408. See also R. v. Steel, Id.
(h) Id.; Morrison v. Lennard, 3 C. & P. 127.
(i) Morrison v. Lennard, 3
C. & P. 127.
(k) Bartholemew v. George, Kent Sp. Ass. 14 Vict., MS. (1) Com. Dig. Testmoigne, A. 1; Ph. & Am. Ev. 5.
(m) Roscoe, Crim. Ev. 128, 3rd Ed.
measure. A monomaniac may perfectly understand the
§ 145. The question seems now set at rest by the case R. v. Hill. of R. v. Hill (p), decided by the Court of Criminal Appeal, since the former edition of this work. The accused, who was attendant of a ward in a lunatic asylum, was indicted for the manslaughter of one of the patients under his care. On the trial before Coleridge and Cresswell, JJ., at the Central Criminal Court, it being opened by the prosecution that a witness of the name of Donelly would be called, who was a patient in the same ward with the deceased, evidence was gone into on both sides in order to found and meet the objection to his com
(n) § 304. Case of Jacob Schwartz.
(0) Fennell v. Tait, 1 C. M.
& R. 584.
(p) 2 Den. C. C. 254; also reported 15 Jur. 470.
petency. A witness stated that Donelly laboured under the delusion that he had a number of spirits about him continually talking to him; but that that was his only delusion and two medical witnesses deposed that he was rational on all points not connected with it, and one added, that he was quite capable of giving an account of any transaction that happened before his eyes. Donelly was then called, and before being sworn was examined by the prisoner's counsel. He said, "I am fully aware that I have a spirit, and 20,000 of them; they are not all mine; I must inquire-I can where I am; I know which are mine. Those ascend from my stomach to my head, and also those in my ears; I do not know how many they are. The flesh creates spirits by the palpitation of the nerves and the rheumatics;' all are now in my body and round my head; they speak to me incessantly—particularly at night. That spirits are immortal I am taught by my religion from my childhood, no matter how faith goes: all live after my death, those that belong to me and those which do not; Satan lives after my death, so does the living God." After more of this kind, he added, "They speak to me constantly; they are now speaking to me; they are not separate from me; they are round me, speaking to me now; but I cannot be a spirit, for I am flesh and blood; they can go in and out through walls and places which I cannot. I go to the grave, they live hereafter-unless, indeed, I have a gift different from my father and mother that I do not know. After death my spirit will ascend to heaven, or remain in purgatory. I can prove purgatory. I am a Roman Catholic; I attended Moorfields, Chelsea, and many other chapels round London. I believe purgatory; I was taught that in my childhood and infancy. I know what it is to take an oath; my catechism taught me from my infancy when it is lawful to swear; it is when God's honour, our own or our neighbour's good require it. When man swears, he does it in justifying his neighbour
on a Prayer-book or obligation. My ability evades while I am speaking, for the spirit ascends to my head. When I swear, I appeal to the Almighty; it is perjury the breaking a lawful oath or taking an unlawful one; he that does it will go to hell for all eternity." He was then sworn, and, says the report, gave a perfectly connected and rational account of a transaction which he reported himself to have witnessed. He was in some doubt as to the day of the week on which it took place, and on cross-examination said, "These creatures insist upon it it was Tuesday night, and I think it was Monday;" whereupon he was asked, "Is what you have told us what the spirits told you, or what you recollect without the spirit?" and he said, "No; the spirits assist me in speaking of the date; I thought it was Monday, and they told me it was Christmas Eve-Tuesday; but I was an eye-witness, an ocular witness, &c." The court received his evidence, reserving the question of his competency for the Court of Criminal Appeal. The case was argued before Lord Campbell, C. J., Coleridge and Talfourd, JJ., and Alderson and Platt, BB., when the counsel for the prisoner contended that Donelly was a lunatic within the legal definition of that term, and that as soon as any unsoundness of mind is manifested in a witness he ought to be rejected as incompetent, citing, inter al. Com. Dig. Testmoigne, A. 1. The court, however, without hearing counsel on the other side, unanimously affirmed the conviction. Lord Campbell, in delivering his judgment, said, "The question is important, and has not yet been solemnly decided after argument. But I have no doubt that the rule was properly laid down by Parke, B. in the case that was tried before him, and that it is for the judge to say whether the insane person has the sense of religion in his mind, and whether he understands the nature and sanction of an oath; and then the jury are to decide on the credibility and weight of his evidence. As to the authorities
Intensity of mental alienation.
that have been cited, the question is, in what sense the term 'non compos' was there used. A man may, in one sense, be non compos, and yet be aware of the nature and sanction of an oath. In the particular case before the court, I think that the judge was right in admitting the witness; I should have certainly done so myself. *** It has been argued that any particular delusion, commonly called monomania, makes a man inadmissible. This would be extremely inconvenient in many cases in the proof either of guilt or innocence: it might also cause serious difficulties in the management of lunatic asylums. I am, therefore, of opinion that the judge must, in all such cases, determine the competency, and the jury the credibility. Before he is sworn, the insane person may be cross-examined, and witnesses called to prove circumstances which might shew him to be inadmissible; but, in the absence of such proof, he is primâ facie admissible, and the jury must attach what weight they think fit to his testimony." Talfourd, J., observing, "It would be very disastrous if mere delusions were held to exclude a witness. Some of the greatest and wisest of mankind have had particular delusions;"-Lord Campbell added, "The rule which has been contended for would have excluded the testimony of Socrates, for he had one spirit always prompting him."
§ 146. But while our books point out the various causes of mental alienation which disqualify from giving evidence, they say little or nothing as to the intensity of it required for this purpose. In truth there are two, if not three, distinct standards of mental alienation known to the law. First, that which is sufficient to exculpate from a criminal charge: and here it seems settled that ordinary lesion of intellect is not sufficientthere must be such an absence of it that the accused when he did the act was unconscious that he was com