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State v. Herring and Baldwin.

is not rebuttable collaterally. But it was pointed out by CAMPBELL, C. J., in the case of Reg. v. Hill, 2 Den. & P. C. C. 254, that such a rule "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."

It has also been strenuously urged that an incarcerated or adjudicated lunatic would be, while giving his testimony, freed from the restraining fear of the pains and penalties of perjury; that being confessedly insane and confined as such, no jury would convict him of perjury. The answer would seem to be that the witness upon his voir dire examination must as one test of competency show his mental appreciation of the criminality of false swearing; it must appear that he knows that perjury is morally wrong and that one committing it is liable to be punished by the criminal law. Moreover, a ten-year-old child is primafacie competent as a witness in this State (State v. Anderson, 252 Mo. 83); children under ten may be shown to be admissibly competent (Sec. 6362, R. S. 1909); yet the possibility of a conviction by a jury for perjury is procedurally and practically as remote in the case of such child witnesses as it is in the case of an insane person. But however this may be, many states of the Union have statutes either verbatim as ours, or similar in substance and meaning to ours, yet without a single dissenting voice the matter of competency of an insane person to testify has, all such statutes notwithstanding, been said to rest wholly upon a proper voir dire showing as at common law. In Nebraska the applicatory statute forbids "persons of unsound mind at the time of their production" from testifying; held, notwithstanding, that the question of competency is one for "the sound legal discretion of the trial judge, leaving to the jury to de

State v. Herring and Baldwin.

termine the credit, that ought to be given to the testimony." [State v. Meyers, 46 Neb. 152.]

The Idaho statute upon this point reads: "The following persons cannot be witnesses: Those who are of unsound mind at the time of their production" for examination. Held, that such statute is only declaratory of the common law rule and competency as at common law appearing to the satisfaction of the trial court upon voir dire examination, the insane witness may testify. [State v. Simes, 12 Idaho, 310.] In Minnesota the statute renders incompetent as witnesses "all who are of unsound mind when produced as witnesses." Held, that an insane person is not necessarily incompetent; such question being determinable by the trial court on the basis of the witness's knowledge of right and wrong and his power of memory. [Cannady v. Lynch, 27 Minn. 435; State v. Hayward, 62 Minn. 474.] Similar are the statutes and the rule in Oklahoma (Guthrie v. Shaffer, 7 Okla. 459; Adams v. State, 5 Okla. Crim. 347); in Ohio (Railroad v. Thompson, 27 C. C. A. 333); in California (Clements v. McGinn, 33 Pac. 920); in Georgia (Cuesta v. Goldsmith, 1 Ga. App. 48); in Montana (State v. Berberick, 38 Mont. 423); in Indiana (Dickson v. Waldron, 135 Ind. 507); in Texas (Batterton y. State, 52 Tex. Crim. 381). Others can be found, but the above should suffice. In no State wherein a statute like ours on the question of competency exists, have we been able to find a contrary ruling, even though the words of the statute and the reason of the case may seem on but a casual view to call for a different rule. Likewise, the textbooks deduce from the adjudged cases a similar unanimous holding upon the point. [Underhill on Crim. Evidence, supra; 2 Elliott on Ev., supra; 1 Wigmore on Ev., sec. 497; 30 Am. & Eng. Ency. Law, supra; 40 Cyc. 2201; Rapalje on Witnesses, sec. 4; Chamberlayne's Best on Ev. 132; 7 Ency. of Ev. 479; 1 Greenleaf, 370; 2 Moore on

State v. Herring and Baldwin.

Facts, sec. 936; 4 Jones on Ev., sec. 723.] Appositely, says Wigmore, "This broad and rational principle, that the derangement, in order to disqualify, must be such as substantially negatives trustworthiness upon the subject of the testimony, is now practically everywhere accepted." [1 Wigmore on Ev., sec. 492.]

From the ruled cases we may deduce the rules: (a) That a person of unsound mind is competent as a witness, if, (1) upon examination he be found to be of sufficient mental capacity to understand the nature of an oath, that is, to know it is both a moral and a legal wrong to swear falsely, and that false swearing is a punishable crime in law, and (2) if he be possessed of sufficient mind and memory to observe, recollect and narrate the things he saw or heard; (b) that lawful confinement in an asylum for the insane, or an adjudication as an insane person, creates a prima-facie presumption of absolute incompetency as a witness; but (c) such presumption is rebuttable by the voir dire examination of the witness alone, or when aided by extrinsic evidence, and (d) the burden of rebutting the presumption of incompetency in case of confinement in an asylum or adjudication as an insane person is on him who offers the witness; but (e) that absent such confinement, or adjudication as an insane person, the burden of showing incompetency on account of unsoundness of mind is on him who objects on that ground.

There is nothing in the examination of witness Hoffman as to his competency which suggests incapacity. We note that he answered, "A person can make himself a meineid by speaking falsely." We are told that "meineid" is the German for "perjury" and the dictionary of that language supports our informant. The witness was compelled to use two languages to express his thought, but his understanding of the nature of an oath was good enough.


State v. Herring and Baldwin.

IV. Fault is found with the fourth instruction. The word "unlawfully" and the words "in the manner set out in the information" in that instruction were unnecessary, superfluous and harmless. That instruction, without those words, told the jury, in substance, that defendants had the right to use all reasonable force necessary to control Wallace, and that if the jury should find that they did unnecessarily strike, beat and injure Wallace with their feet and fists, and that Wallace died therefrom, they should find them guilty of manslaughter in the fourth degree. Thus stripped of its unnecessary and harmless words, that instruction is similar to the one approved in State v. Montgomery, 230 Mo. 1. c. 666, where an officer was charged with murder and where the evidence tended to show that he used unnecessary force in resisting an effort to rescue a prisoner in his charge. It is true that where the instruction refers the jury to the information for matters which are not in the instruction and which are necessary for their consideration, such instruction is erroneous. But in this case the reference to the information performed no such function and was harmless.

Appellants say that the instruction is faulty in not telling the jury that defendants were not required to nicely gauge the amount of force necessary to subdue the patient, and that they had the right to use such force as reasonably seemed to them necessary for that purpose. The instruction is correct as far as it goes. The omission complained of is one of non-direction, not of misdirection. The appellants asked for no instruction covering that point, and have not properly brought it before the court.

Appellants say that the evidence is not sufficient to support the conviction. We cannot agree to that proposition.

State ex rel. v. Thurman.

The judgments against the defendants respectively are affirmed. Williams, C., concurs.

PER CURIAM.-The foregoing opinion of Roy, C., is adopted as the opinion of the court. All the judges concur.

G.THURMAN, Circuit Judge.

In Banc, July 18, 1916.

The por

1. LOCAL OPTION: Election Contest: Special Law. tion of Sec. 7242, R. S. 1909, authorizing the contest of a local option election is not a special law and is not unconstitutional. The Local Option Law itself is neither special nor local, and the contest provisio added in 1909, being germane to the subject-matter of the rest of the act, is no more local or special than the act itself.



: General Law Applicatie: City as Party. The amendment of 1909 to section 7242, Revised Statute 1909, which requires the city or county to be made a party in a local option election contest proceeding, is supported by constitutional authority, and is not invalid on the theory that the general statute provides that all suits shall be prosecuted by the real party in interest and the city or county has no interest in the contest.

: General Law: Exclusive. Section 9 of article 8 of the Constitution, requiring the General Assembly to regulate, by a general law, the manner of trial and determination of contested elections of public officers, does not restrict contests to elections of officers. A general law, passed in compliance with said constitutional requirement, provides, as to contested elections of public officers, the sole method, and excludes all other methods; but a constitutional direction with reference to procedure as to a particular and specified matter does not preclude legislative action upon another and different matter; and Sec. 7242, R. S. 1909, which, in addition to adopting the general law, proceeds further and makes some additional provisions for contesting a local option election, does not violate that constitutional provision.

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