insanity, the party objecting to the witness must prove his incapacity, and may call witnesses for that purpose, yet in the case of a person called as a witness while in a state of intoxication, the court may decide from its own view, whether the witness is in such a situation that he ought not to be permitted to testify. If competent at the time his evidence is offered, it is no objection to his admission that he has been found to be an habitual drunkard, and his estate committed to trustees; nor can his intemperate habits be proved to impeach his competency.3 § 6. Deaf-Mutes.-Where a person deaf and dumb from birth is offered as a witness, the burden of proving his possession of sufficient understanding to become a competent witness rests on the party offering him. This results from the ancient presumption laid down by Lord Hale, that persons so situated are to be deemed the same as idiots. In view, however, of the fact that modern science has discovered a way of educating these unfortunate persons, who have been found to be of much greater intelligence than was anciently supposed, less evidence is now required than formerly to rebut this presumption, if, indeed, it may still be deemed to have any force. Sufficient understanding being shown, a deafmute 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 religious. time of the transaction and of the trial, was that he was possessed of twenty thousand spirits. He appeared to understand the obligation of an oath, and to believe in future rewards and punishments, and a physician testified that in his opinion the witness could give an account of any transaction that happened before his eyes. His testimony was admitted, the court holding that in the case of such a delusion, it was for the court to decide upon the competency of the witness, and for the jury to pass upon his credibility. Reg. v. Hill, 15 Jur. 470; 5 Eng. L. & Eq. 547; 5 Cox. Cr. Cas. 259. 1 Hartford v. Palmer, 16 Johns. (N. Y.) 143. Compare Gould v. Crawford, 2 Pa. St. 89; Cannady v. Lynch, 27 Minn. 435 2 Pa. Act, Feb. 25, 1819; Gebhard e. Shindle, 15 S. & R. (Pa.) 235, 238. 3 Thayer . Boyle, 30 Me. 475. 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 a ground for a new trial if the party offering 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, 5 West Coast Rep., 339. 4 See supra, § 3. 5 Ruston's Case, 1 Leach, C. C. 408; 1 Russ. Cr. p. 7. 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;2 but he may resort to signs, though it appears that he can read and write, and communicate ideas, imperfectly, by writing.3 - The law § 7. Children: Age as affecting Competency. fixes no precise age within which children are absolutely excluded as witnesses. Their competency depends upon tireir intelligence, judgment, understanding, and ability to comprehend the nature and effect of an oath. If over the age of fourteen, the law presumes the witness to possess common discretion and understanding, and he will not be interrogated respecting his capacity, unless some reason creating suspicion be shown; but if he be under that age, no such presumption exists, and the court will determine, in the exercise of a sound discretion, whether the witness has the requisite capacity and intelligence; and that discretion is not reviewable in an appellate court, except upon a clear showing of its abuse. 295. Snyder v. Nations, 5 Blackf. (Ind.) depriving children of the protection 2 Morrison v. Lennard, 3 Car. & P. 127. 3 State v. De Wolf, 8 Conn. 93; Commonwealth v. Hill, 14 Mass. 207; Snyder v. Nations, supra. As to the admissibility of the declarations (communicated by signs) of a deaf and dumb female upon whom a rape is alleged to have been committed, to prove the commission of the offence, or describe the guilty person, see People v. McGee, 1 Den. (N. Y.) 19, 24; Reg. v. Guttridge, 9 Car. & P. 471; Reg. v. Megson, Id. 428. + Flanagan v. State, 25 Ark. 92; Warner v. State, Id. 447; People v. Bernal, 10 Cal. 66; State v. Denis, 19 La. Ann. 119; State v. Whittier, 21 Me. 341; Brown v. State, Tex. App. 115; State v. Richie, 28 La. Ann. 327; At one time the English rule was that no child under nine, and very few under ten years of age should be admitted, Rex v. Travers, 2 Str. 700. See also 1 East, P. C. 442; 1 Hale, P. C. 302; 2 Id. 278; but this rule was found to be unwise, in some instances of the law against acts of violence. In Brazier's Case (which was an indictment for an indecent assault upon a girl of five years), the English judges unanimously adopted the rule stated in the text (which has ever since been followed), but insisted upon the administration of an oath in every case. 1 Leach, C. C. 199; East, P. C. 443; B. N. P. 293. See also R. v. Perkin, 2 Moo. C. C. 139. 5 Den v. Vancleve, 2 South. (N. J.) 589. In Indiana, the age of ten is the statute period of presumption, Blackwell v. State, 11 Ind. 196; Holmes v. State, 88 Ind. 145. 6 State v. Richie, 28 La. Ann. 327; Anonymous, 2 Penn. (N. J.) 930; Van Pelt v. Van Pelt, Id. 657; Jackson r. Gridley, 18 Johns. (N. Y.) 98. 7 Peterson v. State, 47 Ga. 524; State v. Denis, 19 La. Ann. 119; State v. Jackson, 9 Oreg. 457; Brown v. State, 6 Tex. App. 286; Ake v. State, Id. 398; Burk v. State, 8 Id. 336; Williams v. State, 12 Id. 127. The following summary of the adjudged cases will serve to illustrate § 8. The Requisite Religious Instruction. Thus we see that while age standing alone (the requisite intelligence being present) is by no means a criterion by which to judge of the competency of children as witnesses, yet their admissibility depends not merely upon their possessing a competent degree of understanding, but also, in part, upon their having received sufficient religious instruction to enable to what extent the examination as to intelligence has been carried by judges in these cases, where the witness is within the statutory age of presumption: In Spears v. Snell (74 N. C. 210), a boy of thirteen was permitted to testify and consulted as to his own wishes, where the question was as to his custody and guardianship. In State v. Scanlon (58 Mo. 204), on a trial for murder, a child of nine years who, after a little delay, was able to give intelligible answers, although at first, from the novelty of the surroundings, etc., she was prevented therefrom by nervous agitation, was admitted. In Jenner's Case (2 C. H. Rec. (N. Y.) 147-149), where, though nine years old, and quite intelligent, the witness did not comprehend the nature of an oath, nor the consequences of false swearing, the judge instructed her on the spot, and admitted her testimony. In Davidson v. State (39 Tex. 129), a child of ten who said, That she did not know what God and the laws of the country would do to her if she swore falsely, but that she would tell the truth," was held competent. In Blackwell v. State (11 Ind. 196), it was held that a child under ten, who does not know how perjury will be punished, but believes it will be; who knows that it is not right to swear to a lie, and says she would tell the truth if sworn, and always, if mother wanted her to, and that her mother had told her to in this case, may be presumed to have been competent, the court below having admitted her. See also Commonwealth v. Hutchenson, 10 Mass. 225. In Commonwealth v. Carey (2 Brews. (Pa.) 404), a child of eight was sworn although she had stated that she did not know how to read, or what the Bible was, - she having replied that she must tell the truth when on the stand, and if not, she would "Go to the big fires of hell." See also Wade v. State, 50 Ala. 164. So it has been held that on a criminal trial a child of seven may testify. Washburn v. People, 10 Mich. 372, State v. Morea, 2 Ala. 275, and if corroborated by circumstances, his testimony is sufficient to justify a conviction of a capital crime, although that testimony is contradicted by the evidence of an adult; the credibility of the witnesses being left to the jury. State v. Le Blanc, 1 Treadw. (S. C.) Const. 354; State v. Le Blanc, 3 Brev. (S. C.) 339. And the fact that such a child is not punishable for perjury makes no difference. Johnson v. State, 61 Ga. 35. See also State Richie, 28 La. Ann. 327; McGuire v. People, 44 Mich. 286. On the other hand, it is held that a child nine years old, whose examination shows an utter want of anything like a knowledge of the nature or character and consequences of an oath, is not a competent witness. Williams v. State, 12 Tex. App. 127. So held where she said on her examination that she did not know what the Bible was, that she had been to church but once; that she had heard of God, but did not know who he was, and, that if she swore to a lie, she would be put in jail, but did not know whether she would be punished in any other way. Carter v. State, 63 Ala. 52; s. c. 35 Am. Rep. 4. Where the witness is a mere infant (four years old), he cannot have that idea of a future state which will make him a competent witness. Rex v. Pike, 3 Car. & P. 598. them to comprehend the nature of an oath and the consequences of perjury. The examination as to this matter should be made by the court 2 without the interference of counsel further than the judge may choose to allow,3 and the court, in a proper case, may explain the matter and instruct the child, and then determine whether or not he shall be sworn and permitted to testify. Some of the English judges have even gone so far as to postpone the trial, where the child was the principal witness, in order to afford an opportunity to impart the necessary instruction upon this subject; but this practice is not favored in England, and so far as the writer knows, has not been adopted in this country. § 9. Competency of Witness as Dependent upon Means of Knowledge. — A witness otherwise competent should not be rejected because it seems to the court that he has had but little opportunity to acquire knowledge of the facts as to which he is called upon to testify. The rule is that as between living witnesses, one is not to be excluded because another had a better opportunity of knowing a fact deposed 1 Carter v State, 63 Ala. 52; s. c. 35 Am. Rep. 4; 1 So. L. Jour. & R. 796; 2 Week. Jur. 559. In a comparatively recent English case, a child of eight was called, who, up to the time of the event to which 2 People v. McNair, 21 Wend. she was to testify, had received no (N. Y.) 608. 3 Carter v. State, supra. 4 Ibid. A child produced as a witness, who understands that he is brought to court to tell the truth, that it is wrongful to tell a lie, and that he will be punished if he tells a lie, has sufficient understanding of the obligation of an oath to be competent. State v. Levy, 23 Minn. 104. So held of a girl nine years old, who testified on her voir dire that she understood the nature of an oath, and that if she did not swear the truth, she would get into hell-fire. Draper v. Draper, 68 Ill. 17; and of another, who, on being asked what would become of her if she swore to a lie, answered, “I shall go to the bad world." Vincent . State, 3 Heisk. (Tenn.) 120. So held also where the answer was, The bad man will get me." Longston v. State, 3 Heisk. (Tenn.) 414. Her religious teaching, and had never even heard of a God. During a period of about sixteen weeks before the trial she had been, on two occasions, visited and instructed by a clergyman as to the nature and obligation of an oath, but at the trial, still seemed to have no real understanding on the subject of religion or a future state. testimony was rejected, Patteson, J., saying he must be satisfied she felt the binding obligation of an oath from the general course of her relig ious education, and not merely from instructions recently communicated for the purposes of the trial. Rex v. Williams, 7 Car. & P. 320. 5 Rex v. White, 2 Leach, C. C. 430 n. (a); Rex v. Wade, 1 Moo. C. C. 86. See Rex v. Williams, 7 Car. & P. 320; Reg. v. Nicholas, 2 Car. & K. 246; Powell, Ev. 19; Rex v. Pike, 3 Car. & P. 598. to. Thus, one who has heard certain statements, in themselves competent evidence, on which a party to a suit claims to have acted, is a competent witness thereto, although the speaker himself might have been summoned;2 and instructions. to an agent may be proved by one standing by at the time, as well as by the agent.3 Again, where A communicated to B a statement made to him by C, and cannot recollect its substance, C is a competent witness to prove it; and one who overheard all but a small portion of a conversation may testify as to what was said. So, also, it is no objection to the testimony of a witness who deposes to general reputation of pedigree, that he is not one of the family or intimately acquainted with it;6 and persons are competent to prove the general correctness of plaintiff's day-book, who have settled their accounts by his ledger, which was posted from the day-book. But a witness called to testify respecting a custom of trade who showed that his knowledge of it was not later than a year before the time of the trial, was held incompetent to prove what the custom was.8 § 10. Effect of Imperfect Recollection. The fact that a witness who is called to testify to the declarations of another cannot state the precise time or place, or the names of the persons present, goes only to his credibility, and not to the admissibility of his testimony; and the fact that he cannot remember all that was said will not exclude his testimony of what he does remember; 10 it is sufficient if he is able to give the substance of what was said. 11 But a witness who merely thinks he could give the substance, perhaps, of a lost document, is not competent to prove its contents.12 In Fulton v. Maccracken,13 the witness, on cross-examina App. Dec. 324. Compare Smith v. 8 Hale v. Gibbs, 43 Iowa, 380. 9 Walker. Blassingame, 17 Ala. 810. 10 Pond v. State, 55 Ala. 196; Wright v. State, 35 Ark. 639. 11 Burson . Huntington, 21 Mich. 145. Compare Black v. Woodrow, 39 Md. 194; State v. Hughes, 29 La. Ann. 514. 12 Graham v. Chrystal, 2 Abb. (N. Y.) App. Dec. 263. 13 18 Md. 528. |