State v. Herring and Daldwin.

there was no change in his condition in the last four years.

Dr. Woodson testified that if Hoffman was as intelligent all the time as he then was he was well enough to go home.

The court then permitted Hoffman to testify.

One of the jurors on his examination stated that he had made up his mind from what he saw in the paper, had expressed that opinion, that he still had that opinion, that it would take evidence to remove it, but that he could disregard that opinion and reach his verdict solely from the evidence in court. Defendants' challenge of the juror was overruled by the court.

The fourth instruction was as follows:

"The court instructs the jury that the defendants had the right to use all reasonable force necessary to control the deceased Joshua Wallace, and if you find and believe from the evidence that the defendants to effectuate said purpose of attempting to control the deceased Joshua Wallace did unlawfully and unnecessarily strike, beat and injure the deceased Joshua Wallace with their fists and feet in the manner set out in the information, and that the deceased died from said beating and striking at the county of Buchanan and State of Missouri on or about the 7th day of February, 1915, then you will find the defendants guilty of manslaughter in the fourth degree, and assess their punishment at imprisonment in the penitentiary for the term of two years, or by imprisonment in the county jail for not less than six months, or by a fine of not less than five hundred dollars, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months."

Juror.

State v. Herring and Baldwin.

I. The fact that the juror had made up his mind from what he saw in the newspaper was no ground for challenge after the juror stated that he could disregard that opinion and decide the case solely from the evidence. [R. S. 1909, sec. 5220; State v. Rasco, 239 Mo. 535; State v. Schmulbach, 243 Mo. 533.] Appellant has cited no authority to the contrary.

II. The

Competency

State's witnesses Murphy and Fitzpatrick were really favorable to the defendants. They testified to the of Witnesses. dangerous dangerous disposition of Wallace and of Young and told defendants of the threats made by Wallace. That they did so tell defendants is shown by the evidence of the defendants. Those witnesses did not testify to a single thing having a tendency to convict the defendants. So far as their evidence goes, the defendants, up to the time they passed out of sight of those witnesses, were doing nothing more than their duty. As the testimony of those witnesses could not have harmed the defendants we decline to consider the question of their competency.

III. The trial court, in passing upon the competency of witnesses who have been adjudged insane, said:

"I think the fact that this man may have been adjudged insane, is not a conclusive presumption that he is incompetent. The law is that the presumption is that when one on a proper inquisition has been adjudged insane, he is insane, and before Witness. he can become a competent witness in any case

Insane

it must be shown that he has lucid moments and that at the time he is offered as a witness he has sufficient mind for the court to determine that he had mind sufficient 268 Mo.-34

State v. Herring and Baldwin.

to observe the facts and rationally relate what occurred. If you gentlemen have any authority to the contrary, I will be glad to hear it. I have looked up this question in every text-book I have in my office. I have read Underhill's Criminal Evidence, I have read Elliot, and I have read the last work-I can't recall the name-I have read all the late rulings on this point."

That opinion is supported by Underhill on Crim. Ev. (2 Ed.), sec. 202; 2 Elliott on Ev., sec. 757; 1 Wigmore, Ev., sec. 497; 30 Am. & Eng. Ency. of Law (2 Ed.), 935-bb; State v. Meyers, 37 L. R. A. 423; State v. Pryor, 46 L. R. A. (N. S.) 1028; and Hottle v. Weaver, 206 Pa. St. 87. In State v. Vaughn, 223 Mo. 1. c. 155, it was held that a person committed to a hospital for the insane is presumed to continue insane. There was no evidence in that case to rebut the presumption, and there was no occasion to consider the effect of such evidence, but the court there cited authorities which held that such presumption is not conclusive.

We have a statute which provides upon this point thus: "The following persons shall be incompetent to testify: First, a person of unsound mind at the time of his production for examination," etc. [Sec. 6362, R. S. 1909.]

It was, as suggested above, held in the case of State v. Vaughn, 223 Mo. 1. c. 155, that since the proof made in that case showed that the person whose testimony was in issue as to its competency, was an inmate of an asylum for the insane, the presumption was that she was insane, and therefore incompetent. Taking as premises our statute which seems to have been enacted in 1855, and the presumption which follows an incarceration in a state asylum for the insane, can an inmate of such asylum be a competent

State v. Herring and Baldwin.

witness? The question is a serious and troublesome one, as will be shown infra.

In the early days of the common law insanity of the proposed witness rendered him absolutely incompetent. An early (1842) edition of Greenleaf on Evidence, thus states the old rule:

"It makes no difference from which cause this defect of understanding may may have arisen; nor whether it be temporary and curable, or permanent; whether the party be hopelessly an idoit or maniac, or only occasionally insane, as a lunatic; or be in'toxicated; or whether the defect arises from mere immaturity of intellect, as in the case of children. While the deficiency of understanding exists, be the cause of what nature soever, the person is not admissible to be sworn as a witness."

This rule of absolute incompetency at common law prevailed from early time (Coke upon Litt. 246b; Comyns' Dig.-Testimony, A-1; Livingston v. Kiersted, 10 Johns. (N. Y.) 362) down to a day comparatively recent. [Greenleaf on Ev., supra.] The trend of all the later cases, however, and the universal rule at common law, now is that the lunatic may be sworn and may testify as a witness; provided, upon examination by the court (who is the sole judge of his competency, subject to review on appeal for an abuse of discretion) he shows that he understands the nature of an oath and that he possesses mental capacity sufficient to observe and recollect and narrate the things he saw or heard. [Walker v. State, 97 Ala. 85; McKinstry v. Tuscaloosa, 172 Ala. 344; Worthington v. Mencer, 17 L. R. A. 407; Armstrong v. Timmons, 3 Har. (Del.) 342; Cannady v. Lynch, 27 Minn. 435; State v. Crouch, 130 Iowa, 478; Cuesta v. Goldsmith, 1 Ga. App. 48; People v. Enright, 256 Ill. 221; Holcomb v. Holcomb, 28 Conn. 177; Regina v. Hill, 5 Cox Crim. 259; Cogan v. Cogan, 202

State v. Herring and Baldwin.

Mass. 58; District of Columbia v. Armes, 107 U. S. 519; State v. Hayward, 62 Minn. 474; 40 Cyc. 2201; State v. Simes, 12 Idaho, 310; Bowdle v. Railroad, 103 Mich. 272; Railroad v. Thompson, 27 C. C. A. 333; Barker v. Washburn, 200 N. Y. 280; Covington v. O'Meara, 133 Ky. 762; Coleman v. Comm., 25 Gratt. (Va.) 865; Evans v. Hettich, 7 Wheat. 453; State v. Cremeans, 62 W. Va. 134; Czarecki v. Railroad, 30 Wash. 288; Guthrie v. Shaffer, 7 Okla. 459; Batterton v. State, 52 Tex. Cr. 381; Singleton v. State, 57 Tex. Cr. 560; Burns v. State, 145 Wis. 373; State v. Brown, 36 Atl. (Del.) 458; Kendall v. May, 10 Allen (Mass.), 59.]

Our statute upon this question, which we quote above, has never been construed upon the precise point now before us. For while, as stated above, it was said in State v. Vaughn, 223 Mo. 1. c. 155, that a person of unsound mind who is committed to an asylum for the insane, is presumed to continue insane, yet it is not ruled in the Vaughn case whether such presumption may or may not be rebutted by voir dire examination or otherwise. In State v. Whitsett, 232 Mo. 511, the precise point here presented was not before the court, and what is there said is not decisive and only remotely analogous. The question is therefore one of first impression in this State, and must be resolved upon the terms of our own statute, aided persuasively by the rulings on similar statutes in other jurisdictions; for as we have seen the common law rule is universally in favor of competency of such insane witness upon a proper and sufficient showing on his voir dire examination.

Upon principle and on first blush, it would seem that under our statute one confined in an asylum for the insane is rendered absolutely incompetent as a witness, and that the presumption arising from the fact of such incarceration (State v. Vaughn, supra)