Cannady v. Lynch

• Decision Date: 01 January 1881
• Citation: 27 Minn. 435,8 N.W. 164
• Parties: CANNADY v LYNCH AND OTHERS.
• Court: Minnesota Supreme Court

27 Minn. 435

8 N.W. 164

CANNADYvLYNCH AND OTHERS.

Supreme Court of Minnesota

Filed February -, 1881.

Appeal from order of district court, McLeod county.

Edson & Little, for respondents.

J. V. V. Lewis and H. J. Peck, for appellants.

GILFILLAN, C. J.

The statute (section 7, c. 73, Gen. St. 1878) provides: “All persons, except as hereinafter provided, having the power and faculty to perceive and make known their perceptions to others, may be witnesses.” Section 9 provides: “The following persons are not competent to testify in any action or proceeding: First, those who are of unsound mind or intoxicated at the time of their production for examination.” At common law the rule of exclusion, so far as it related to such persons, was: “All persons who are are examined as witnesses must be fully possessed of their understanding,- that is, such an understanding as enables them to retain in memory the events of which they have been witnesses, and gives them a knowledge of right and wrong; that, therefore, idiots and lunatics, while under the influence of their malady, not possessing this share of understanding, are excluded;” and it was the same with intoxicated persons. Hartford v. Palmer, 16 John. 142.

The rule of qualification under the statute is more liberal and less exclusive than common law. It admits to be witnesses many who at common law would be incompetent. It would be contrary to the general tenor and spirit of the statute to construe the first subdivision of section 9 as intending to exclude, on account of mental unsoundness or intoxication, those who at common law would be competent. The terms “of unsound mind” and “intoxicated” are very indefinite. It is a matter of common observation, that persons may be mentally unsound on some subjects, and as to others as sound as people generally; or may be in some degree unsound, or to some extent intoxicated, and yet be capable of recollecting past events accurately, and possess the ability and appreciate the duty to relate them truly, as fully as persons who are sober, and in all respects of sound mind. It is not to be supposed that the statute intends to disqualify such persons. It is more reasonable to suppose it intends to exclude persons as witnesses only when unsound or intoxicated to a degree that would exclude them at common law; that it intends to affirm the common-law rule on the subject, and admit persons as witnesses when, at the time they are offered to be sworn, they are possessed of “such an understanding as enables them to retain in memory the events of which they have been witnesses, and gives them a knowledge of right and wrong” sufficient to appreciate the sanctity and binding force and obligation of an oath. If a person offered as a witness must be tested by this rule, it is evident the test must be applied by the trial court at the time of offering him. His condition at that time must determine his competency. This cannot be established by the allegations of the pleadings. It is not the purpose or office of pleadings to ascertain or make or present any issue on the competency of witnesses to be sworn on the trial. The trial court may take into account the allegations and admissions in the pleadings bearing on the mental condition of any person offered as a witness, as it may resort to any other evidence to ascertain the fact; but they are not to be taken as conclusively determining such condition. The court below did not err in overruling defendants' objection to plaintiff as a witness, based on the allegation in her complaint that she at one time became insane. It was not the duty of the trial court to examine plaintiff as to her mental soundness, merely because defendant alleged her to be unsound, unless it saw in her some indication of unfitness to testify. It must be presumed that the court declined to examine her because it saw no such indication. The testimony (hers, and that of the other witnesses, so far as appears by the record) justified the action of the court.

Two of the appellants'...