Hale v. Com.

• Decision Date: 13 October 1922
• Citation: 244 S.W. 78,196 Ky. 44
• Parties: HALE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

244 S.W. 78

196 Ky. 44

HALE v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 13, 1922

Appeal from Circuit Court, Caldwell County.

Lawrence Hale was convicted of having carnal knowledge of a female under the age of 16 years, and he appeals. Affirmed.

Hodges & James, of Eddyville, for appellant.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

HURT C.J.

Lawrence Hale was convicted of the crime of unlawfully carnally knowing a female under the age of 16 years, denounced by section 1155, Ky. Stats., and sentenced to serve a term of ten years in the penitentiary as a penalty for the crime. He has appealed from the judgment, and seeks a reversal on account of several alleged errors of the trial court, which will be considered in their order. The crime was alleged to have been committed in June, 1921.

(a) It is insisted, first, that the guilt of appellant of the crime depended upon the truth of the testimony of the female which, although slightly corroborated, without it there would be no evidence upon which to submit the case to the jury, and that she was so feeble-minded as to be incapacitated from giving testimony, and for that reason she should not have been permitted to testify, and that his substantial rights were prejudiced by the error of the court in permitting her to testify. There is no warrant for this contention in the record, except the testimony of the father of the female, who deposed that the girl was "weak minded, and did not know right from wrong, and would do what any person told her, one person as quick as another." This statement of the father was made after the girl had testified. No objection was made to the competency of the girl, as a witness, when she was offered as such, nor after that time, nor did the appellant endeavor to show by any evidence the incompetency of the witness, except as above stated, nor was any objection to her competency made after that time. The failure of appellant to object to the witness testifying, because incompetent for want of mental capacity was a waiver of objection upon that ground, as a party may waive an objection to the competency of a witness, and this would seem to be a bar to any further complaint. A person who is offered as a witness is presumed to be competent to testify until the contrary is shown, and the burden of showing incompetency is upon the party objecting upon that ground. Covington v. O'Meara, 133 Ky. 762, 119 S.W. 187; Cole v. Barber, 33 R.I. 414, 82 A. 129; People v. Harrison, 18 Cal.App. 288, 123 P. 200. If an objection is made to a witness, because not mentally competent to testify, the court must determine the question before the witness is allowed to testify, and this the court may do from the appearance, conduct, and speech of the witness, and from any outside testimony which may be offered, and the witness is admissible to testify if it appears that he has capacity sufficient to comprehend the obligations of an oath and to give a fairly correct account of the things he has seen and heard in reference to the questions at issue. When the court admits the witness to testify, his credibility is a question for the jury. Covington v. O'Meara, supra; Barker v. Washburn, 200 N.Y. 280, 93 N.E. 958, 34 L. R. A. (N. S.) 159, 140 Am. St. Rep. 640; People v. Enright, 256 Ill. 221, 99 N.E. 936, Ann. Cas. 1913E, 318. What is said above has no reference to the impeachment of a witness for want of mental capacity...